author: LILJEBERG, J.

text:
    STATE of Louisiana v. Curtis L. KYLES
    NO. 16-KA-295
    Court of Appeal of Louisiana, Fifth Circuit.
    December 07, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Edward C. Milner, III, Shannon K. Swaim
    COUNSEL FOR DEFENDANT/APPELLANT, CURTIS L. KYLES, Brace G. Whittaker
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   LILJEBERG, J.

11 Defendant, Curtis L. Kyles, appeals his conviction for second degree murder in violation of La. R.S. 14:30.1. For the reasons stated more fully below, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On October 14,2010, a grand jury indicted defendant with the second degree murder of Crystal St. Pierre. Defendant was arraigned and pleaded not guilty on October 15, 2010. Defendant filed two motions to quash the indictment as constitutionally deficient on June 3, 2013 and September 19, 2015. The trial court denied both motions.

On September 21-29, 2015, the ease was tried before a twelve-person jury that unanimously found defendant guilty as charged of second degree murder. On November 9, 2015, defendant filed a motion for a new trial, which the trial court denied on November 10, 2015. On that same date, after defendant waived delays, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a motion for reconsideration of sentence which the trial court denied. Defendant then filed a motion for appeal, which the trial court granted on November 12, 2015. This appeal follows.

FACTS

Chicwanda Forbes was initially charged as a co-defendant for the second degree murder of the victim, Crystal St. Pierre; however, in return for her testimony against defendant in this case, she pleaded guilty to second degree kidnapping and received a fifteen-year prison sentence. At trial, Forbes testified that she regularly visited defendant at his residence in the Cedar Point apartment complex in Algiers, Louisiana. On June 10, 2010, she went with defendant to a |aWinn Dixie in Algiers to purchase groceries. Defendant tried to pay for the groceries with a food stamp card, but he did not have a valid PIN number. Forbes explained that the victim gave defendant the card. After multiple failed attempts at using the card, defendant became “angry” and attempted to call the victim to determine her whereabouts. Forbes and defendant then drove back to his apartment complex. Once there, they located the victim at Lavelle Davis’ apartment, which was a few doors down from defendant’s apartment.

Forbes testified that defendant was very angry and beat on Davis’ door until Davis opened it. The victim exited the apartment and Forbes punched her. They then brought the victim to defendant’s vehicle. Forbes admitted the victim was not free to leave. Forbes sat in the back seat with the victim' while defendant drove. As they drove, defendant argued with the victim about the food stamp card and told her that “she’s going to die and he going to kill her.” Ms. Forbes testified that defendant drove to a location off the road and into a field. Defendant stopped, opened the back door and instructed Forbes and the victim to exit the vehicle. According to Forbes, defendant then grabbed the victim, pushed her down to her knees, and shot her in the head. Forbes described the gun used as a .38 revolver.

After shooting the victim, Forbes and defendant drove around for a couple of hours while defendant made various phone calls. Forbes testified that defendant called his daughter, but she told him not to come to her house because the police were there. Forbes further testified that when she told defendant she wanted to go home, he told her “[yjou’re not going home for a while.” They then drove to Bassfield, Mississippi, to stay with some of defendant’s relatives. During their stay, Forbes attempted to leave, but defendant struck her on her head, lip and eye. | ¡¡Defendant then threatened Forbes, telling her he was going to kill her and that he did not trust her. After four days in Bassfield, defendant’s son, Curtis Burnes, drove defendant and Forbes to a bank in Covington, Louisiana, to cash a check. When they returned to Bassfield, defendant and Forbes were arrested.

Cedar Point apartment manager, La-velle Davis, testified that she had a close relationship with the victim, and was also familiar with defendant and Forbes because defendant lived in the apartment complex. Davis testified that on the day of the murder, defendant called her a few times, but she did not answer. A short time later there was banging on ,her front door. When Davis opened the door, defendant stated, “where’s that b***h.” When Davis inquired as to who he was talking about, defendant told her he wanted Crystal to come outside. The victim then came to the door and told Davis not to worry and that she would take care of the situation. As the victim exited Davis’ apartment, Forbes grabbed her by her hair and began punching her in the head and beating her as they went down the stairs. Davis then heard defendant demand that the victim give him his money. When Davis tried to intervene, defendant lifted his shirt, revealing what Davis believed to be the handle of a gun.

Sheridan Flax was drinking coffee with Davis at her apartment on June 10, 2010. He was in the bathroom when he heard banging at the door. He then heard a man “screaming for somebody” and yelling about money. Flax thought about intervening, but observed the man make a gesture which suggested he might be armed. Flax went to a bedroom window and watched as the victim attempted to escape from defendant’s vehicle, but was pulled back into the car by a black female. Flax got into his car and followed defendant’s vehicle. He wrote down the license plate number and called the police.

Officer Michael Washington of. the New Orleans Police Department testified that he was dispatched to the Cedar Point apartment complex in response to a ^possible kidnapping of a white female by a black male and female driving a vehicle with the license plate number SIU617. He was unable to locate the vehicle at the apartment complex, but upon running the plate, discovered that the vehicle was registered to Tatiana and Eric Narcese. It was later learned that Tatiana Narcese is defendant’s daughter.

Detective Gary Barteet of the Jefferson Parish Sheriffs Office testified that he responded to a call the following day on June 11, 2010, regarding a body found in a wooded area in Avondale, Louisiana. Detective Barteet’s first lead in the ease was developed on June 14, 2010, when his office received an anonymous call, leading him to interview Ms. Davis. Through speaking with Davis, Detective Barteet identified defendant and Forbes as suspects in the victim’s murder. Detective Barteet obtained defendant’s cell phone number, and through his phone records, discovered that defendant’s cell phone was used in the vicinity of the crime scene near the time of the homicide.

In addition, Federal Bureau of Investigation Agent William Williams testified as an expert in historical cell site analysis. Agent Williams explained that the phone registered to defendant used a cell phone tower near the Winn Dixie on Holiday Drive in Algiers at 10:46 a.m. on June 10, 2010. Agent Williams further testified that on the same morning, defendant’s cell phone was used at 10:68 a.m. in close proximity to the Cedar Point apartment complex, where the victim was last seen before her murder. Agent Williams explained that after 11:00 a.m., defendant’s cell phone demonstrated movement; specifically, at 11:11 a.m., the phone utilized a tower situated at the base of the Crescent City Connection in Algiers, approximately a mile from the Cedar Point apartments. At 11:17 a.m., the phone utilized a cell phone tower in Harvey, and at ll:22'a.m., it utilized a cell phone tower near Westwe-go. The next call at 11:37 a,m. placed defendant’s cell phone further west along Highway 90, in the Waggaman area, approximately four | ^hundred yards from where the victim’s body was located. After. 12:12 p.m. on June 10, 2010, the cell phone records for defendant’s phone indicated the cell phone could no longer be located.

Dr. Fraser MacKenzie, expert in the field of forensic pathology, performed the victim’s autopsy on June 12, 2010. Dr. MacKenzie testified the victim sustained a gunshot wound to the back of her head and bruises on the front of the head near the right forehead and the right upper eyelid. A copper jacket and lead projectile were recovered from the victim’s skull. Dr. MacKenzie opined that the victim died from a gunshot wound to the head as a result of a homicide. Dr. Erin Watson, an expert in forensic entomology, explained that her analysis of the insect.development on the victim’s body indicated she died sometime during the daylight hours of June 10, 2010.

Captain Dennis Thornton of the Jefferson Parish Sheriff’s Office also participated in the murder investigation. Captain Thornton identified numerous photographs depicting evidence recovered from the scene of the crime, including tire track impressions. Joel O’Lear, an expert in the field of tire track examination, compared tire track impressions obtained from the scene to the tires from defendant’s vehicle, and determined they matched the rear passenger-side tire from defendant’s vehicle.

After defendant and Forbes were apprehended in Mississippi, Forbes provided a statement to Detective Barteet. Forbes informed him that defendant and the victim had a dispute over a food stamp card, which led him to retrieve the Winn Dixie surveillance video showing defendant’s attempted use of the food stamp card at the checkout counter. In addition, a search of defendant’s apartment uncovered .38 caliber ammunition. Jene Rauch, an expert in the field of firearm and toolmark examination, testified that she analyzed the copper jacket and lead projectile recovered during the victim’s autopsy, as well as the ammunition | (¡recovered pursuant to the search conducted at defendant’s residence. The ammunition recovered from defendant’s residence were .38 caliber special rounds, which are used in a revolver. She further found the ballistic materials from the autopsy were consistent with .38 caliber ammunition, capable of being fired from a revolver.

DISCUSSION

Defendant raises two assignment of error on appeal. In his first assignment of error, defendant argues that' the trial court erred in denying his motion to quash the indictment filed against him because it is constitutionally deficient. In his second assignment of error, he argues that the evidence was insufficient to support the verdict against him. .

When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Therefore, we first address defendant’s second assignment of error regarding the sufficiency of the evidence.

Defendant argues that credible evidence of guilt is lacking in this case. He contends the only evidence connecting him to the victim’s death is the testimony of Forbes, who received a plea bargain in exchange for her testimony against him. Defendant states that it is irrational to find that Forbes’ testimony establishes his guilt beyond a reasonable doubt under the circumstances of this case. Accordingly, defendant contends the evidence is insufficient to support the verdict of second degree murder.

The State responds that defendant’s assigned error does not contest the elements necessary to prove second degree murder, but only concerns Forbes’ | credibility. The State notes the credibility of a witness is strictly a matter for the trier of fact and that the jury was aware of defendant’s argument regarding Forbes’ motivation for testifying. The State asserts the jury was informed that Forbes was originally charged with second degree murder and was permitted to plea to a fifteen-year sentence for second degree kidnapping in exchange for her testimony against defendant. The State further notes the defense fully cross-examined Forbes regarding her motivations for testifying at trial. The State contends the jury made a credibility determination and believed the State’s case over that of the defense.

The State also maintains that it established defendant’s guilt not only with Forbes’ testimony, but also with corroborating evidence and testimony from several other witnesses. It contends a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was guilty of second degree murder.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. at 319, 99 S.Ct. 2781; see also State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to | «prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

As it pertains to the instant case, second degree murder is defined as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Whether a defendant possessed the requisite intent in a criminal case is a question for the trier of fact, and' a review of the correctness of this determination is guided by the Jackson standard. State v. Spears, 05-0964 (La. 4/4/06), 929 So.2d 1219, 1224; State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La. 5/4/07), 956 So.2d 599. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Gant, 942 So.2d at 1111. The act of aiming a lethal weapon and discharging it in the victim’s direction supports a finding by the trier of fact that the defendant acted with specific intent to kill. Id. In addition, flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. Id.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant’s identity as the perpetrator. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “‘As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the [s]tate is required to negate any reasonable probability of misidentification.’ ” Id. (quoting State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)).

As explained above, defendant maintains the. only testimony connecting him .to the victim’s murder, is from Forbes who lacks credibility because she entered into a plea bargain with the State. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound ’ discretion of the trier of fact. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the .fact finder at trial.” State v. Miller, 11-498 (La.App. 5 Cir. 12/13/11), 84 So.3d 611, 617, writ denied, 12-176 (La. 9/14/12), 97 So.3d 1012.

Moreover, in the absence of internal contradiction or irreconcilable conflicts with physical evidence,' the testimony of one "witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745. A jury may also convict upon a co-defendant’s uncorroborated testimony. State v. Matthews, 450 So.2d 644 (La. 1984); State v. Hopkins, 39,258 (La.App. 2 Cir. 3/2/05), 897 So.2d 854, 862, writ denied, 05-1238 (La. 12/16/05), 917 So.2d 1107. An accomplice is qualified to testify against a co-perpeteator even if the | inprosecution offers him inducements to testify and such inducements would merely affect the witness’s credibility. Hopkins, 897 So.2d at 862. A conviction can even be based on the uncorroborated testimony of an accomplice or of someone making a plea bargain with the government, provided the testimony is not‘incredible or otherwise insubstantial oh its face. Neal, 796 So.2d at 659.

At trial, both the State and' defense detailed for the jury Forbes’ favorable plea agreement. Forbes testified that on June 10, 2010, she accompanied defendant to a Winn Dixie store to purchase groceries using a food stamp card given to defendant by the victim. When the card was declined due to án invalid PIN, defendant became angry and tracked the victim down at Lavelle Davis’ apartment in the Cedar Point apartment complex. Forbes admitted that she and defendant forced the victim into defendant’s vehicle, where she, was not free to leave. Forbes kept watch over’ the victim while defendant drove, telling the victim he was going to kill her. Once in a secluded location, defendant instructed the victim to exit the vehicle, pushed her to the ground, and’ shot her in the head with a .38 revolver. Forbes and the victim then fled to Bassfield where they stayed with defendant’s relatives until they were apprehended.

By returning a guilty verdict, the jury obviously believed Forbes’ testimony. Forbes’ testimony was not incredible or insubstantial on its face. Forbes’ testimony at trial was consistent with the physical evidence presented' and clearly demonstrated defendant and Forbes’ roles in the murder of the victim. Forbes’ testimony alone was sufficient to sustain defendant’s conviction of sécond degree murder and there is no basis under the prevailing standard of appellate review to conclude her testimony could not have been believed by a reasonable jury.

hfln addition, other State witnesses’ testimony corroborating Forbes’ account of the events, as well as physical evidence introduced by the State at trial, establish beyond a reasonable doubt that sufficient evidence‘was presented to support the jury’s verdict. Video surveillance footage from the Winn Dixie store in Algiers, as well as the testimony of Terence Foster of the Louisiana Department of Children and Family Services, confirmed that on June 10, 2010, defendant and Forbes attempted to purchase groceries using a food stamp card issued to the victim but were unsuccessful. '

Lavelle Davis testified that on the morning of the murder, defendant had called her before coming to her apartment and banged on her front door.- Davis described defendant as mad when he demanded the victim exit Davis’ apartment. Davis confirmed that when the victim went outside, Forbes punched the victim before forcing her down the stairs. She further testified that she could hear defendant demanding money from the victim. Sheridan Flax also testified that he watched as the victim was forced into defendant’s vehicle. Both Davis and Flax further testified that based on their observations, they believed defendant was armed.

Defendant’s cell phone records also tracked defendant’s movements beginning at the Winn Dixie store in Algiers at 10:46 a.m. on June 10, 2010, to the Cedar Point apartment complex, where the victim was last seen. The cell phone records ended at 11:37 a.m. in -the Waggaman area west along Highway 90, four hundred yards, from where the victim, who.had sustained a gunshot wound to the head, was located. Forensic entomologist, Dr. Watson, further confirmed the timeline of events, testifying that based on the insect development recovered from the body, the victim died sometime during the daylight hours of June 10, 2010. Additionally, physical evidence found at the scene included , a tire track impression matching one of the tires on defendant’s vehicle, and the ballistic materials from |12the autopsy were consistent with the .38 ammunition seized from defendant’s apartment..

Thus, even discounting Forbes’ testimony, for the above reasons, we find that a rational trier of fact could have still found, under the Jackson standard, that the evidence was sufficient to support the second degree murder verdict. Based on the foregoing, this assigned error is without merit.

In his other assignment of error, defendant argues the trial court erred in .denying his motions to quash the indictment on the basis that the second degree murder charge was constitutionally deficient. In his motions to quash, defendant argued that the charge, which utilized the short form; indictment, was deficient because it failed to specify whether the' grand jury indicted defendant on the specific intent theory or the felony murder theory of second degree murder.

In response, the State maintains that the trial court did not abuse its discretion in denying the motions since defendant was properly charged with a short form indictment, and was well aware of 'the charges against him.

Article I, Section 13 of the Louisiana ’Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1240, writ denied, 13-306 (La. 6/21/13), 118 So.3d 413. This requirement is implemented by La. C.Cr.P. Art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall hot be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his preju- ' dice;

| iaLa. C.Cr.P. Art. 465 authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. Chairs, 106 So.3d at 1240. Both this Court and the Louisiana Supreme Court have consistently upheld the constitutionality of these short forms. Id. (citing Draughn, 950 So.2d at 624). This Court has held that a post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Page, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 452-53, writ denied, 09-2684 (La. 6/4/10), 38 So.3d 299.

For instance, in Chairs, supra, the defendant, who had been convicted of second degree murder, argued on appeal that the trial court erred in denying his motion to quash the indictment. He had argued in the motion that the short form was constitutionally deficient due to its failure to specify whether his prosecution was being pursued under the specific intent theory or the felony murder theory of second degree murder. Chairs, 106 So.3d at 1240. His indictment read in pertinent part: “... on or about the 8th day of November, 2009, the said ROGER D. CHAIRS ... violated R.S. 14:30.1 in that [he] did commit second degree murder of a known juvenile (DOB 4/29/2002).” Id. at 1241.

This Court determined that the defendant in Chairs was fully aware of the nature of the charges against him and concluded that the trial court did not abuse its discretion in denying the defendant’s motion to quash. Id. In reaching this conclusion, this Court noted that the indictment conformed to the short form provided in La. C.Cr.P. Art. 465 and that the defendant was provided with ample discovery, including police reports, arrest warrants, search warrants, crime lab 114reports, and statements of witnesses and co-defendants to understand the charge against him. Id.

In the instant case, the indictment complied with the short form in La. C.Cr.P. Art. 465(A)(32), as it provided: “Curtis L. Kyles... on or about the 10th day of June in the year of our Lord, Two Thousand and Ten with force and arms, in the Parish aforesaid, and within the jurisdiction of the Twenty-Fourth Judicial District Court of Louisiana, in and for the Parish aforesaid, violated R.S. 14:30.1 in that they did commit second degree murder of Crystal St. Pierre.” Moreover, when a short form indictment is used, it is intended that the defendant use a bill of particulars to procure details as to the statutory method by which he committed the offense. Page, 28 So.3d at 453. On October 28, 2010, defendant filed a Motion for Bill of Particulars, Discovery, and Inspection. The record indicates the State provided to the defense, among other things, police reports, arrest warrants, search warrants, crime lab reports, phone records, and statements of witnesses. Defendant does not contend that he was unable to determine the specifics of the charge against him through discovery.

In view of the foregoing, we determine that defendant received fair notice of the offense charged and was made fully aware of the nature of that charge against him. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to quash. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. Art, 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following error patent merits attention.

The commitment reflects that defendant was given a proper advisal pf the time period for seeking post-conviction relief as required by La. C.Cr.P. Art. 930.8; 11B however, the transcript indicates that the trial court provided defendant with an incomplete post-conviction relief period ad-visal. Specifically, following sentencing, the trial court advised defendant that he had “two years to seek post conviction relief after this judgment is complete.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. Art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

Accordingly, we advise defendant that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. Arts. 914 or 922.

DECREE

For the reasons stated above, we affirm defendant’s second degree murder conviction and sentence.

AFFIRMED

      . The victim was also known as Crystal Roper.

      . Terence Foster, a fraud investigator for the Louisiana Department of Children and Family Services, verified that records for a food stamp card issued to Crystal Roper indicated repeated attempts to use the card with an incorrect PIN number on June 10, 2010, at a Winn Dixie store in Algiers.

      .Acia Burnes testified that in June 2010, defendant and Forbes came to stay with him at his house in Bassfield. Defendant has a son, Curtís Burnes, Jr., with Ada’s daughter. Ada testified that while they were at this house, defendant and Forbes had a physical confrontation and Acia demanded they leave his house. Defendant and Forbes then stayed in a trailer across the road from Acia’s house, which is owned by Anner Burnes, Ada's niece.

      . As previously noted, a defendant's flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience, State v. Cazenave, 00-183 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La. 10/26/01), 799 So.2d 1151.

      . Because defendant does not argue that the . State failed to establish.any of the essential statutory elements of his conviction, the sufficiency of the evidence, with respect to the statutory elements need not be addressed. See State v. Henry, 13-558 (La. App. 5 Cir. 3/26/14), 138 So.3d 700, 715, writ denied, 14-962 (La. 2/27/15), 159 So.3d 1064; State v. Ramirez, 09-350 (La.App. 5 Cir. 12/29/09), 30 So.3d 833, 840.

      . The short form for second degree murder is provided in La. C.Cr.P. Art. 465(A)(32), which provides: "A.B. committed second degree murder of C.D.”

      . Defendant was charged along with Chicwanda Forbes.


source: Caselaw Access Project

author: WINDHORST, J. WICKER, J.,

license: Public Domain

text:
    Dotty Fortenberry, Wife of/and Alvin L. FORTENBERRY v. SCOTTSDALE INSURANCE COMPANY, Liberty Mutual Insurance Company, JYD Trucking, L.L.C., David Lyle Scott, Sr., and United Services Automobile Association
    NO. 17-CA-25
    Court of Appeal of Louisiana, First Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, DOTTY FORTENBERRY WIFE OF/AND ALVIN L.' FORTENBERRY, Stephen M. Chouest, Sr., J. Rand Smith, Jr., Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, UNITED SERVICES AUTOMOBILE ASSOCIATION, James R. Nieset, Jr., Kristopher Michael Gould, Jade E. Ennis, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   WINDHORST, J.

| ¶ Appellant, United Services Automobile Association (USAA), in its capacity as Liberty Mutual Fire Insurance Company’s insured (LM’s insured), seeks review of the trial court’s August 1, 2016 judgment denying its motion to quash the 1442 deposition of USAA. Appellees/plaintiffs, Dotty and Alvin Fortenberry, filed a motion to dismiss appellant’s appeal of the trial court’s August 1,2016 interlocutory discovery order; For the reasons that follow, we find appellant is a party to this litigation and therefore, appellant does riot have a right to appeal the trial court’s interlocutory discovery order. Accordingly, appel-lees’ motion to dismiss appeal’ is granted and the matter is remanded to the trial court to comply with this Court’s instructions.

Facts and Procedural History

Appellee, Alvin Fortenberry, was employed by USAA as an automobile re-appraiser. As a long time employee of USAA, Alvin Fortenberry received various employment and fringe benefits, including a company vehicle that was provided for his use. The vehicle was rendered a total loss as a result of a rear-end collision in which Dotty and Alvin Fortenberry were seriously injured.

On May 23, 2014, appellees filed suit against USAA and other defendants as. a result of the rear-end collision that occurred on November 15, 2013. A first supplemental, amending and restated petition for damages was filed on September 18, 2014. The petitions named USAA as a defendant that "had in full force and effect a policy of liability insurance which insured the plaintiffs for losses of the nature and kind made basis of this suit.” The petitions alleged Alvin Fortenberry’s long time employment with USAA prior to and at the time of the accident, and stated that USAA provided automobile insurance for his company vehicle as a' benefit of his employment. .The petitions further provided that at the time of the accident, |2appellees were also insured for accidents caused by underinsured motorists by USAA (UM insurer). USAA answered appellees’ petitions without making any distinction as to USAA’s alleged capacity or capacities as a named defendant and without filing any exceptions to the petitions.

Appellees filed a notice of deposition and notice of “C.C.P. 1442” deposition with request for production of documents requesting “non-party” USAA in its capacity as Alvin Fortenberry’s former employer, benefits plan administrator, and LM’s insured to appear for the deposition.

USAA (LM’s insured) filed a -motion to quash the 1442 deposition of USAA, arguing that it was an independent third party and not a party in this lawsuit. USAA (LM’s insured) argued that this lawsuit was only against USAA in its capacity as the appellees UM insurer and not against USSA in its capacities as Alvin Fortenber-ry’s former employer, benefits plan administrator, and LM’s insured. Appellees opposed the motion to quash arguing that USAA was named as an original party defendant in this litigation. The trial court denied USAA’s (LM’s insured) motion to quash. Appellant filed this appeal and ap-‘pellees filed a motion to dismiss the appeal. On February 1, 2017, after careful consideration of the motion to dismiss and opposition thereto, this Court entered an order referring appellees’ motion to dismiss to the merits of this appeal. Fortenberry v. Scottsdale Insurance Company, 16-610 (La. App. 5 Cir. 02/01/17).

Discussion

Initially, this Court must determine whether this is an appealable judgment. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083 C. Generally, a judgment involving preliminary discovery matters is interlocutory and non-appealable. Gariepy v. Evans Indus., 06-106 (La. App. 5 Cir. 9/25/07), 968 So.2d 753, 754; Larriviere v. Howard, 00-186 (La. App. 3 Cir. 10/11/00), 771 So.2d 747. However, a judgment resolving a discovery issue against a non-party is appeal-able as it resolves all of the issues between the non-party and the party seeking discovery. Gariepy, 968 So.2d at 755. Thus, this Court must decide if USAA (LM’s insured) is a party or non-party.

Pleadings must be construed reasonably as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. La. C.C.P. art. 865; Dep’t of Children & Family Servs. Ex rel. A.L. v. Lowrie, 14-1025 (La. 5/5/15), 167 So.3d 573, 578. Fact pleading advances several goals of the petition, such as satisfying the defendant’s' constitutional guarantee of due process by providing the defendant with fair notice, limiting the issues before the court, and notifying the defendant of the facts upon which the plaintiff bases his claims. Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 713; Schnell v. Mendoza, 12-272 (La. App. 5 Cir. 11/13/12), 105 So.3d 874, 877-878. Plaintiff need not plead a theory of the case, but only facts that would support recovery. Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So.2d 114, 118. Moreover, every pleading must be construed so as to do substantial justice. La. C.C.P. art. 865.

In their motion to dismiss, appel-lees argue that USAA is currently named as a defendant in the petitions. At the time of the accident, USAA was Alvin Forten-berry’s employer, administrator of benefit plans, owner of the vehicle involved in this accident, LM’s insured, and appellees’ personal UM insurer. Therefore, appellant does not have a right to appeal the trial court’s interlocutory discovery judgment.

A review of the record shows that the petitions for damage are vague as to which capacity or capacities USAA was named as a defendant. The petitions provided that USAA was 1) a named defendant; 2) the former employer of Alvin Fortenberry; 3) the administrator of Alvin Fortenberry’s employee benefit plans; 4) |4the owner of the vehicle provided for his use; 5) the entity that procured and placed automobile insurance on Alvin Fortenberry’s company vehicle (LM’s insured); and 6) the entity which issued a personal underinsured motorists insurance policy that insured appel-lees (UM insurer). The petitions further provided that USAA had “in full force and effect a policy of liability insurance which insured the plaintiffs for losses of the nature and kind made basis of this suit.” This allegation, read with the other allegations in the petitions, could potentially apply to USAA in its capacity as UM insurer or USAA in its capacities as Alvin Fortenber-ry’s former employer/benefits plan administrator/owner of vehicle/LM’s insured, or USAA in multiple capacities. USAA did not file, in any capacity, an exception of vagueness or exception of no cause of action contesting the allegations as stated against USAA in the petitions.

In opposition to the motion to dismiss, USAA (LM’s insured) argues that appel-lees acknowledged that it was not a party in the notice of deposition. Contrary to the allegations in appellees’ petitions, appel-lees issued a notice of deposition to “non-party” USAA in its capacity as Alvin For-tenberry’s former employer, benefits plan administrator, and LM’s insured to appear for the deposition. While the notice of deposition appears to make a distinction between USAA in its capacity as UM insurer versus USAA in its capacities as Alvin Fortenberry’s former employer, benefits plan administrator, and LM’s insured, the subject matters and documents to be' produced in connection with the deposition were in reference to USAA in its capacities as Alvin Fortenberry’s former employer, benefit plans administrator, LM’s insured, and UM insurer. Moreover, the record shows that appellees previously filed numerous discovery requests directed to USAA, without naming USAA’s capacity or capacities, and only after numerous delays and refusal by |sUSAA to comply with discovery, did appellees issue a notice of deposition to “non-party” USAA (employer/benefit plans administrator/LM’s insured) in order to facilitate discovery. We note that USAA in any named capacity has not been dismissed as a party to this lawsuit.

Under the circumstances of this case, we find that USAA is a named party defendant. The allegations in the petitions concerning the rear-end collision provided USAA with adequate notice that it is potentially liable and involved in its capacities as Alvin Fortenberry’s former employer/owner of the vehicle/benefit plans administrator/LM’s insured, and in its capacity as UM insurer. Because USAA is a party to this litigation, the trial court’s August 1, 2016 judgment is an interlocutory, non-appealable judgment. Accordingly, appellees motion to dismiss appeal is granted. The matter is remanded to the trial court to consider the motion for appeal as a notice of intent to seek supervisory review of the trial court’s August 1, 2016 judgment.

Conclusion

For the reasons stated above, appellees motion to dismiss appeal is granted. The matter is remanded to the trial court to comply with this Court’s instructions.

APPEAL DISMISSED; REMANDED

WICKER, J.,

CONCURS WITH REASONS

hi concur in the outcome but write separately only to emphasize that by dismissing this appeal at this juncture in this case, given its long and tortured procedural history and the nature of the documents at issue, I do not intend to infer that plaintiff is not entitled to obtain the documents currently sought from USAA.

      . Appellees issued discovery requests to USAA, without distinction as to capacity or capacities, on September 3, 2014, and on May 12, 2015. When USAA refused to answer discovery, appellees filed a motion to compel. The trial court granted appellees’ motion and USAA sought supervisory review of the trial court’s judgment. Fortenberry v. Scottsdale Insurance Company, 16-19 (La. App. 5 Cir. 03/01/16) (unpublished writ disposition). This Court granted USAA’s writ application in part and denied it in part. Id. This Court held that to the extent appellees sought discovery from USAA related to its insurance coverage with Liberty Mutual (LM), USAA was not the appropriate party to produce the requested information. Id. Thus, only that portion of the judgment was vacated. Id. The judgment compelling USAA to respond to all other remaining discovery requests was denied, Icf At no point in the writ disposition did this Court determine that USAA was not a party defendant nor did this Court determine what capacity or capacities USAA was named as a defendant in the petitions.


author: WELCH, J. HOLDRIDGE, J.,

text:
    Charles POOLE, Jr. v. GUY HOPKINS CONSTRUCTION CO. and LUBA Workers’ Compensation
    2016 CA 1450
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: November 1, 2017

      Michael B. Miller, Crowley, Louisiana, Attorney for Plaintiff/Appellant, Charles Poole, Jr.
    Eric J. Waltner, Lafayette, Louisiana, Attorney for Defendants/Appellees, Guy Hopkins Construction Co, and LUBA Workers’ Compensation
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

Lin this workers’ compensation matter, the plaintiff, Charles Poole, Jr., appeals a judgment of the Office of Workers’ Compensation (“OWC”), which dismissed Mr. Poole’s claim for a modification of his indemnity benefits against defendants, Guy Hopkins Construction Company (“Guy Hopkins”) and LUBA Workers’ Compensation (“LUBA”) (collectively referred to as “defendants”). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The instant appeal arises out of an ongoing workers’ compensation matter related to an injury sustained by Mr. Poole in April of 2003, while in the course and scope of his employment as a laborer with Guy Hopkins. See Guy Hopkins Construction Co. v. Poole, 2013-2072 (La. App. 1st Cir. 6/6/14), 148 So.3d 14, 16, writ denied, 2014-1371 (La. 10/3/14), 149 So.3d 798. In 2003, Mr. Poole filed an initial disputed claim for compensation, and in 2006 he was awarded temporary total disability (“TTD”) benefits, reasonable and necessary medical treatment, penalties, and attorney fees. Id. Mr. Poole underwent two surgeries in connection with the 2003 injury, including a spinal fusion in 2009.

The 2006 judgment was eventually modified by a September 12, 2013 judgment wherein the workers’ compensation judge (“WCJ”) granted Guy Hopkins and LUBA’s motion to modify Mr. Poole’s benefits from TTD to supplemental earnings benefits (“SEBs”). The September 12, 2013 judgment terminated Mr. Poole’s TTD benefits and awarded SEB benefits at the TTD rate of $1,802.66 per month on the basis of a change in circumstances. In particular, the WCJ found that “a change had occurred in that two physicians, including the LCourt’s IME, found that Mr. Poole was able to return to work. Mr. and Mrs. Poole’s testimony that [Mr. Poole] was actually worse was not supported by the evidence.” The WCJ found no evidence that Mr. Poole had received medical care from his treating physician since October 4, 2012. The WCJ also ordered vocational rehabilitation services to begin immediately for Mr. Poole. The September 12, 2013 judgment was affirmed in all respects by this court in a previous appeal. See Id. 148 So.3d at 18-19.

The issue of Mr. Poole’s benefits was revisited in 2014 when the defendants sought and were granted a motion for summary judgment. In a judgment, signed on February 27, 2014, the WCJ recognized that the SEB cap was exhausted and that no further SEBs were owed to Mr. Poole after February 14, 2014. See La. R.S. 23:1221(3)(d). The 2014 judgment expressly modified all previous judgments, including but not limited to the 2013 judgment. Mr. Poole continued to receive medical benefits and vocational rehabilitation services after the issuance of the February 27, 2014 judgment.

On June 2, 2015, Mr. Poole initiated the disputed claim for compensation at issue in the instant appeal. Mr. Poole asserted that his condition had worsened and that he was entitled to receive permanent total disability (“PTD”) benefits. The matter was heard by the WCJ over the course of two days—March 28, 2016 and April 20, 2016. At the close of Mr. Poole’s case, counsel for the defendants presented an oral motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which was granted by the WCJ.

|4In granting the dismissal, the WCJ found merit in the defendants’ assertion that Mr. Poole had failed to prove a change in his condition sufficient to change the category of benefits to which he was entitled, and failed to demonstrate by clear and convincing evidence that he was permanently and totally disabled. Instead, the WCJ observed that “[w]ere supplemental earnings benefits still available to [Mr. Poole], that is the category that he continues to be in.” In oral reasons for judgment the WCJ concluded that despite problems with the jobs suggested by the vocational rehabilitation counselor and Mr. Poole’s on-going use of narcotic painkillers there were “jobs out there” that Mr. Poole could perform. Further, .the WCJ found that Mr. Poole had failed to make any effort to secure employment. Relevantly, the WCJ expressly found that Mr. Poole was not “credible,” and explained that Mr. Poole’s recent physical complaints were “almost identical” to those he asserted previously in his testimony at the 2011} trial.

A judgment was signed by the WCJ on April 29, 2016, granting the motion for involuntary dismissal and dismissing the captioned matter with prejudice. The judgment provides, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED THAT the Motion for Involuntary Dismissal be and is hereby granted and that the claimant failed to establish a change in his condition sufficient to warrant by clear and convincing evidence that he is entitled to an award of permanent total disability benefits.
IT IS ORDERED, ADJUDGED AND DECREED THAT the above-captioned matter be and is hereby dismissed with full prejudice.

Mr. Poole now appeals the April 29, 2016 judgment.

J^ISSUES ON REVIEW

Mr. Poole filed the instant appeal asserting multiple assignments of error to the WCJ’s judgment. Generally, Mr. Poole challenges the scope of the judgment as overly broad, the WCJ’s finding that Mr. Poole was not credible, and WCJ’s failure to find that Mr. Poole had proven a change in condition as well as entitlement to PTD benefits. Mr. Poole alternatively challenges the WCJ’s failure to consider his entitlement to TTD benefits or further vocational rehabilitation. Mi’. Poole also assigns error to the WCJ’s rulings regarding the admission of certain medical evidence at trial and his ability performing a video monitoring job.

DISCUSSION

Scope of April 29, 2016 Judgment

Louisiana Revised Statutes 23:1310.8 provides, in pertinent part:

B. Upon the motion of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award. [Emphasis added.]

Within the scheme of the workers’ compensation law, the concept of modification set forth in La. R.S. 23:1310.8 is unique because it allows a case to be reopened and the award amended after the judgment becomes “final.” See Borja v. FARA, 2016-0055 (La. 10/19/16), 218 So.3d 1, 10. In his first assignment of error, Mr. Poole asserts that the April 29, 2016 judgment is overly broad and goes beyond the single issue raised in his amended disputed claim for compensation regarding whether he was entitled to modify his award and receive PTD benefits. In particular, Mr. Poole asserts that the language of the judgment dismissing the “above-captioned matter ... with prejudice” somehow results in the dismissal of his “case,” including the WCJ’s previous judgments and the determination that he was entitled to receive medical expenses and vocational rehabilitation services related to the 2003 workplace incident.

As noted above, the revision of indemnity awards under the workers’ compensation scheme is flexible and open to revision, and review of any award can be initiated by the filing of Form 1008, as was’ done herein. See Gabriel v. Lafourche Parish Water Dist., 2012-0797 (La. App. 1st Cir. 2/25/13), 112 So.3d 281, 285, writ denied, 2013-0653 (La. 4/26/13), 112 So.3d 848. Further, because medical' benefits awards are separate from indemnity awards, there is nothing to prohibit a WCJ from hearing and ruling solely on the issue of indemnity benefits without affecting medical expense benefits. See Roussell v. St. Tammany Parish School Bd., 2004-2622 (La. App. 1st Cir. 8/23/06), 943 So.2d 449, 460, writ not considered, 2006-2362 (La. 1/8/07), 948 So.2d 116.

The scope of the proceeding herein was limited to the claims for change in condition and PTD eligibility asserted by Mr. Poole in his amended disputed claim for compensation as well as the parties’ pretrial statements. The judgment clearly provides that it is granting the motion for involuntary dismissal and dismissing the claim asserted with prejudice as required by La. R.S. 23:1310.8. We find no legal or factual merit in this assignment of error.

|7 Change in Condition—Permanent Total Disability

Whenever a claimant seeks to modify an earlier indemnity award, he must prove by a preponderance of the evidence that there had been a change in his condition. See La. R.S. 23:1310.8(B); Guy Hopkins Construction Co., 148 So.3d at 16. The factual finding of the WCJ as to whether the claimant has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong. Guy Hopkins Construction Co., 148 So.3d at 16. Under La. R.S. 23:1221(2)(c), a finding of PTD is only possible if a claimant,is unemployed and proves, by clear and convincing evidence, unaided by any presumption of disability that he is: ■ •

.. .physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain,- notwithstanding the location or availability of any such employment or self-employment.

The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its nonexistence. Iberia Medical Center v. Ward, 2009-2705 (La. 11/30/10), 53 So.3d 421, 432. Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600 (La. App. 1st Cir. 3/24/05), 907 So.2d 86, 88. A finding of disability is a legal determination reached by the trier of fact based upon consideration of a totality of the evidence, both lay and medical testimony. See Batiste v. Tenet Healthcare Corp., 2009-1192 (La. App. 1st Cir. 2/12/10), 35 So.3d 352, 355, writ denied, 2010-0559 (La. 5/7/10), 34 So.3d 864. Under the totality of the evidence other factors besides purely physical limitations should bé considered in determining status as permanently and totally disabled. | «Factors considered include whether the injured employee could reasonably be given training or education "that would raise him to an employable status. See Comeaux v. City of Crowley, 2001-0032 (La. 7/3/01), 793 So.2d 1215, 1222.

Since a determination regarding disability is a question of fact, it cannot be reversed in the absence of manifest error. Batiste, 35 So.3d at 355. The manifest eiTor test requires that a reviewing court determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880, 882 (La. 1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The manifest error standard of review is based not only upon the factfinder’s “better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Hayes Fund for First Methodist Church of Welch, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1116. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Mr. Poole contends that he demonstrated a change in his condition since 2013 through medical evidence as well as his own testimony establishing an increase in physical limitations and pain. As to the denial of his claim for PTD benefits, Mr. Poole argues the totality of the circumstances demonstrate that he is permanently and totally disabled. Essentially, Mr. Poole argues that he “cannot be rehabilitated” due to his age, education level, reliance on narcotic pain medication, |gand long absence from the work place. According to Mr. Poole, his inability to be rehabilitated renders him permanently and totally disabled. Based on our review of the record and the applicable law, we find no manifest error in the WCJ’s determination that Mr. Poole failed to prove a change in condition or in the WCJ’s finding that Mr. Poole not did prove by clear and convincing evidence that he qualified for PTD benefits.

The relevant medical evidence presented at trial provided an overview of Mr. Poole’s condition at the time of the 2013 judgment as well as prior to the 2016 determination on appeal herein. The physicians who examined Mr. Pool prior to the September 2013 hearing, Dr. George Jiha and Dr. Gray Barrow, both found him to be able to return to sedentary or light duty work. Further, Dr. Jiha found that Mr. Pool was at maximum medical improvement, stating he did not anticipate any worsening of Mr. Poole’s condition.

The medical records evidencing Mr. Poole’s condition at the time of the 2016 hearing included a report by and the deposition of Dr. Neil Romero, an orthopedic surgeon selected by Mr. Poole, the IME report of Dr. John R. Budden, |1ftand a letter/report dated March 22, 2016 from Mr. Poole’s treating physician, Dr. Daniel Hodges. All three physicians reviewed and rendered an opinion on the results of a March 2015 MRI that revealed a 2 millimeter retrolisthesis of L3 and L4. The 2015 MRI 'was performed following subjective reports of increased pain by Mr. Poole to Dr. Hodges beginning in February of 2014.

In oral reasons for judgment, the WCJ noted that the medical reports submitted evidenced “some degenerative change” in Mr. Poole’s • condition, however, said changes were found to be expected with age. Further, citing the testimony of Dr. Neil Romero, the WCJ found that any degenerative changes were too insignificant to warrant the pain levels alleged by Mr. Poole. Support for the WCJ’s finding can be found in the reports of Drs. Budden and Romero, neither of whom found the changes present on the 2015 MRI significant. Dr. Budden stated that he did not believe that Mr. Poole had suffered “any change or worsening of his condition” since 2012. Further, Dr. Budden opined that Mr. Poole was capable of performing the job duties associated with jobs listed by the vocational rehabilitation counselor, including, cashier, customer service, and delivery driver.

In his deposition, Dr. Romero stated that his review of x-rays and the March 2015 MRI of Mr. Poole’s spine evidenced “mild degenerative changes above his [earlier] fusion[;]” however, the doctor opined that Mr. Poole’s symptoms were not consistent with the mild changes above his fusion. In fact, based on his review of Dr. Hodges’ records, Dr. Romero opined that Mr. Poole’s condition had been stable for a number of years. In his report, Dr. Romero deferred the issue of Mr. Poole’s work status to Dr. Hodges; however, when asked in his deposition, Dr; Romero testified that he believed that Mr. Poole was capable of performing sedentary labor. Dr. Romero explained that this conclusion was based on his physical examination of Mr. Poole, review of x-rays and the 2015 MRI, and hisJjjviewing of a surveillance video of Mr. Poole. In contrast, Dr. Hodges opined in his report that tjie 2 millimeter retrol-isthesis of L3 and L4 was an indication of progressive degeneration with slippage, and noted Mr. Poole’s reports of increase pain. As set forth above, the record clearly demonstrates that the WCJ was presented with two permissible views of the evidence regarding Mr. Poole’s medical condition. The WCJ’s choice between them cannot be manifestly erroneous or clearly wrong. See Hayes Fund, 193 So.3d at 1116.

With regard to the WCJ’s finding that Mr. Poole’s was not credible, we note that deference to the WCJ’s findings regarding credibility is particularly important, ás only the factfinder can be aware of the variations in the demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. See West v. Wal-Mart, 2010-2271 (La. App. 1st Cir. 6/17/11), 70 So.3d 164, 168. Review of the record suggests a reasonable basis existed for the WCJ’s finding that Mr. Poole lacked credibility. For example, the WCJ compared Mr. Poole’s testimony at the 2016 hearing with the 2013 hearing transcript and found that “it’s almost identical in terms of what he said he couldn’t [do] back in 2013 and what he says, [he] can’t do now.” The WCJ correctly summarized Mr. Poole’s testimony in both instances as essentially that he was unable to perform any activities other than watching television at home, because all activities resulted in pain. Moreover, the WCJ was presented with surveillance footage that supported a finding that Mr. Poole possesses a greater ability to ambulate than presented in his testimony.

Finally, we find no error in the WCJ’s holding that Mr. Poole was not entitled to PTD benefits on the grounds that he failed to meet his burden of proving that he was physically unable to engage in any employment or self-employment by clear and convincing evidence, Mr. Poole contends that the WCJ’s determination failed to consider factors that rendered him unable to be rehabilitated, including hisliaage, his low education level, and his dependency on narcotic pain medication. In support of his position, Mr. Poole cites the following decisions: Conerly v. Triad Nitrogen, 2012-2032 (La. App. 1st Cir. 8/14/13), 123 So.3d 273, writ denied, 2013-2441 (La. 1/10/14), 130 So.3d 329, and writ denied, 2013-2515 (La. 1/10/14), 130 So.3d 330; Severio v. J.E. Merit Constructors, Inc., 2002-0359 (La. App. 1st Cir. 2/14/03), 845 So.2d 465; Smith v. Season’s Mfg., 2001-0890 (La. App. 3rd Cir. 2/6/02), 815 So.2d 899, writ denied, 2002-0692 (La. 5/3/02), 815 So.2d 822.

The WCJ was presented with the above-referenced medical evidence, a surveillance video of Mr. Poole, Mr. Poole’s elementary school report card, the testimony of Mrs. Poole, and the documents and testimony of Mr. Ronnie J. Ducote, a vocational rehabilitation counselor. Viewing this evidence as a whole, and in light of the evidence demonstrating that Mr. Poole failed to prove a change in condition, we cannot say that the WCJ’s denial of PTD benefits was manifestly erroneous. The WCJ’s finding that Mr. Poole was able to engage in some kind of employment, but had failed to attempt to. acquire any employment was reasonable based on the record. Mr. Poole testified that he met with several of the potential employers suggested by Mr. Ducote and was. told- by each that he did not have the necessary skills/for the jobs advertised. Mr. Poole also testified that he attempted to attend a free computer skills class suggested by Mr. Ducote, but was told “[i]f | iSyou can’t read, ain’t nothing we can do for you.” However, -Mr. Poole provided no evidence to corroborate his testimony regarding attempts to contact the potential employers or attend the class suggested by Mr. Ducote, nor did Mr. Poole present evidence of any attempts to secure any type of. employment since the 2013 determination that he was qualified for SEB not TTD benefits. Further, Mr. Poole did not refute Mr. Ducote’s testimony that Mr. Poole never accepted any of the multiple offers to meet regarding vocational rehabilitation options after the two initial meetings, which undermines any assertion by Mr. Poole that he cannot be rehabilitated despite his best efforts. This evidence combined with the credibility determination of the WCJ renders the instant matter distinguishable from the cases cited by Mr. Poole. See Conerly, 123 So.3d at 275; Severio, 845 So.2d at 470; and Smith, 815 So.2d at 904.

Based on the above, we find no manifest error in the WCJ’s ruling that Mr. Poole failed to demonstrate a change in condition under La. R.S. 23:1310.8 or eligibility for PTD benefits under La. R.S. 23:1221(2)(c). As such, we affirm the judgment of the WCJ dated April 29,2016.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment signed April 29, 2016 of the WCJ dismissing the claim for permanent total disability benefits filed by Mr. Poole against the defendants, Guy Hopkins Construction Company and LUBA Workers’ Compensation. All costs of this appeal are to be paid by the appellant/plaintiff, Charles Poole, Jr.

AFFIRMED.

Holdridge J., dissents w/ reasons.

HOLDRIDGE, J.,

dissenting.

hi respectfully dissent from the majority opinion. Although the “Judgment” on appeal grants Luba Workers’ Compensation oral motion for involuntary dismissal, the “Judgment” fails to specifically identify against whom judgment was rendered and party in favor of whom the ruling is ordered. A judgment is the determination of the rights of the parties in an action. La. C.C.P. art. 1841. This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art. 2083. A final, appealable judgment must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. Additionally, when there are multiple parties, the judgment must specifically identify the names of the parties to which the judgment applies. English Turn Property Owners Association v. Taranto, 2016-0319 (La. App. 4 Cir. 4/19/17), 219 So.3d 381, 395, reh’g denied (Apr. 23, 2017).

The “Judgment” in this case dismisses with full prejudice the “above-captioned matter”; however, it is unclear from the “Judgment” which parties claim is being dismissed with prejudice, as there are multiple parties named in the caption. See Conley v. Plantation Management Co., L.L.C., 2012-1510 (La. App. 1 Cir. 5/6/13), 117 So.3d 542, 547, writ denied, 2013-1300 (La. 9/20/13), 123 So.3d 178. Therefore, the “Judgment” is not a valid final judgment and this court lacks jurisdiction to review it.

      . In 2012, Guy Hopkins filed a motion attempting to modify the 2006 judgment; however, the matter was ultimately resolved by a consent judgment between the parties wherein Guy Hopkins conceded that the 2012 motion to modify was without merit.

      . Louisiana Code of Civil Procedure article 1672(B) provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . On June 8, 2017, this court issued a rule to show cause why this appeal should not be dismissed, noting that the judgment did not specifically identify the party against whom judgment was rendered and the party in favor of whom the ruling was ordered. On June 22, 2017, Mr. Poole submitted a brief in response to the show cause order alleging that "the judgment as written is not a final judgment and the case should be remanded to the [OWC] to place the name of the party [whose] case is being dismissed and the name of the party(s) who are being dismissed with prejudice.”
      Louisiana courts require that a judgment be "precise, definite and certain.” Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1st Cir. 12/20/02), 836 So.2d 364, 365. However, the form and wording of judgments are not sacramental, Matter of Succession of Porche, 2016-0538 (La. App. 1st Cir. 2/17/17), 213 So.3d 401, 405. Review of the judgment renders it evident that Mr. Poole, whose name appears in the caption, is the claimant against whom the motion for involuntary dismissal was filed by the employer and carrier—i.e. Guy Hopkins Construction Company and LUBA, who also appear in the caption, Compare Laird, 836 So.2d at 366. The ruling dismisses "the above-captioned matter” with prejudice, leaving no doubt that any claim by any party in the above-captioned matter is dismissed with prejudice, Moreover, the judgment in this case sets forth that the claimant failed to establish his entitlement to permanent total disability benefits. While that statement arguably constitutes reasons for judgment that should not have been included, the statement does preclude any possible confusion whether the judgment is dismissing the claim for benefits. We find the ruling a final judgment as the determination of the matter is evident from the language of a judgment without reference to other documents in the record. See Id. As such, we maintain the instant appeal,

      . Alternatively, Mr. Poole contends on appeal for the first time that a determination should have been made by the WCJ regarding his entitlement to further rehabilitation services under La. R.S. 23:1226 and/or TTD benefits. We decline to consider Mr. Poole's assertions that the WCJ erred in failing to make a determination regarding his entitlement to further rehabilitation services under La. R.S. 23:1226 and/or TTD benefits. Mr, Poole raises these alternative arguments for the first time on appeal. As a general rule, appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the court below has not addressed. See Geiger v. State ex rel. Dept. of Health & Hosp., 2001-2206 (La. 4/12/02), 815 So.2d 80, 86. Nevertheless, as noted above, the only matter determined in this matter is whether there has been change in Mr. Poole’s condition and whether he is entitled to PTD. The other rulings in this matter remain in place. Further, we note that the WCJ’s finding that there had been no change in Mr. Poole’s status of SEB eligibility since the 2013 hearing would preclude a finding that he was entitled to TTD benefits, as any modification to his eligibility status requires a showing of a change in condition under La. R.S. 23:1310.8.

      . Mr. Poole asserts that the inclusion of Drs. Jiha and Barrow’s records was improper herein on the basis of the exclusion of certain evidence at the 2013 hearing regarding eligibility. The propriety of the 2013 evidentiary determination is not properly before this court. The critical threshold issue in the instant matter is whether there has been a change in Mr. Poole's condition since the last hearing. As such, we find no error by the WCJ in the admission of Drs. Jiha and Barrow’s medical records from 2013 to assist in that determination.

      . Vocational testing indicated that Mr.' Poole had reading comprehension skills at approximately the second grade level, calculation skills at approximately a fifth grade level and applied skills at approximately the fourth grade level,

      . Mr. Poole assigns error to a statement contained in the WCJ’s oral reasons for judgment expressing the opinion that Mr. Poole could perform a video monitoring job. Mr.. Poole asserts that the WCJ’s statement amounts to judicial notice of a fact under La. C.E. art. 201. Appeals are from the judgment itself, not the reasons for judgment. See La. C.C.P. art. 2083. Reasons for judgment only set forth the basis for the court's holding and are not binding, Veal v. American Maintenance & Repair, Inc., 2004-1785 (La. App. 1st Cir. 9/23/05), 923 So.2d 668, 673. We find no merit in Mr. Poole’s assignment of error on this issue. For the same reason, Mr. Poole’s assignment of error regarding the WCJ's failure to reference Dr. Hodge’s March 22, 2016 report in the oral reason for judgment lacles merit'as well.'

      . On June 8, 2017, this court issued ex pro-prio motu a rule to show cause order directing the parties to show cause as to whether or not the appeal should be dismissed because it was unclear from the April 29, 2016 judgment which parties’ claim was being dismissed with prejudice. On June 22, 2017, Mr. Poole submitted a brief in response to the show cause order alléging that "the judgment as written is not a final judgment and the case should’be remanded to the Office of Workers’ Compensation to place the name of the party who the case is being dismissed and the name of the party(s) who are being dismissed with prejudice.” No opposition was filed by Guy Hopkins Construction Company and LUBA Workers' Compensation.