author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Johnathan P. SIMS
    NO. 2017-KA-0101
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 15, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Scott G, Vincent, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Mary Constance Hanes,' LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge-Paula A. Brown)
   Judge Joy Cossich Lobrano

1¶Appellant, Joñathan Sims (“Defendant”), appeals his September 16, 2015 convictions for home invasion, a felony in violation of La. R.S. 14:62.8, domestic abuse battery by strangulation, a felony in violation of La. R.S. 14:35.3(L), and aggravated battery, a felony in violation of La. R.S. 14;34. Finding that the evidence is sufficient to support Defendant’s convictions, that Defendant’s right to confrontation was not violated, and that Defendant’s ineffective assistance of counsel claim is not properly before the Court, we affirm Defendant’s convictions. Further, finding patent errors as to each of the sentences imposed, we vacate |aDefendant’s sentences in part and remand the case to the district court to impose sentences as instructed by this opinion.

Factual Background

A relationship began between Defendant and the victim in 2013. ⅛ early 2014, Defendant moyed into the victim’s home. The victim eventually ended that relationship, and told Defendant to move out and return his key. Defendant vacated the home, but left behind some personal items and refused -to return the key.

On September 14,2014, the victim asked her uncle to come to her apartment because she was afraid that Defendant may be waiting there for her. The victim asked her uncle to search her residence to ensure Defendant was not present. Finding nothing, her uncle eventually left. After her uncle left, the victim put her children to bed. When she exited the children’s bedroom, she heard the closet door open, and began to run. Defendant emerged from the closet and began chasing the victim. She attempted to run out of the house, but Defendant caught her.

Defendant began punching the victim in the face. As she fell to the floor, Defendant climbed on top of her and began to strangle her. Shortly thereafter, the victim’s uncle returned and knocked on the door. Defendant stopped strangling the victim, threw a towel at her, and told her to wipe the blood from her face. They went outside and, as Defendant and the victim’s uncle were speaking, the victim managed to get inside her home and lock the door.

After being locked outside the victim’s home, Defendant kicked the door open. The victim grabbed her child and ran back out of the door that Defendant had forced open. Defendant dragged the victim into the backyard and began beating her again while she was holding her child. Once Defendant had punched the victim’s face, head, and stomach, he picked up an aluminum broom handle and ^demanded that the victim let go of the child. After the victim refused, Defendant began beating the victim with the broom handle, repeatedly striking her across the face and the body. The broom handle eventually broke, but Defendant continued to beat the victim with the remaining piece. After the broom handle slipped out of his hand, Defendant strangled the victim in the street.

Nigel Daggs (“Officer Daggs”), an officer with the New Orleans Police Department (“NOPD”), responded to a domestic disturbance call at the victim’s home shortly after 11:00 pm. When Officer Daggs arrived, he observed the victim with bruises on her face, an open wound near her left eye, and scratches on the knuckles of her right hand. Officer Daggs further observed a silver broom handle lying in the street in front of the neighbor’s yard and a cracked door frame in the interior doorway of the victim’s home. The victim gave a brief statement on the scene, but her inju-ríes required that she be relocated to Tulane Hospital. There, the victim was treated for a head injury, deep bruise of jaw, facial laceration, fracture of the hand, contusion to the eye, and shoulder strain. At the hospital, she gave a written statement to Officer Daggs.

On June 24, 2015, Defendant was charged by bill of information with home invasion, a felony in violation of La. R.S. 14:62.8; aggravated battery, a felony in violation of La. R.S. 14:34; and domestic abuse battery by strangulation, a felony in violation of La. R.S. 14:35.3(L). Despite the fact that at the time, of Defendant’s act, the home invasion statute contained an enhancement provision for home invasions where a child under the age of twelve was present, see La. R.S. 14:62,8(B)(3)(2017)(repealed 11/1/2017), the bill of information does not contain Lany reference to that sentencing enhancement or allege that a child under twelve was present at the time of the home invasion. The two-day trial commenced September 16, 2015, and concluded the following day. The jury found Defendant guilty of home invasion, aggravated battery, and domestic abuse battery by strangulation. Defendant filed a motion for new trial which was denied. On March 15, 2016, the State filed a multiple bill of information pursuant to La R.S. 15:529.1, charging Defendant as a quadruple felony offender.

On July 19, 2016, at Defendant’s sentencing hearing, counsel for Defendant filed a motion for post-verdict judgment of acquittal. The district court denied the motion. Thereafter, Defendant was sentenced to serve twenty-five years at hard labor for home invasion; ten years for aggravated battery; and three years for domestic abuse, all to run concurrently with each other and any other charge.

On July 25, 2016, the multiple bill hearing was held. At that time, the district court denied Defendant’s motion to quash the multiple bill, and found Defendant to be a quadruple felony offender as charged. The district court vacated Defendant’s original sentences, and reimposed the same sentences that-were imposed on July 19, 2Q16. The district court then orally granted Defendant’s motion for appeal and appointment of counsel, but advised counsel that he would have to file a formal notice of appeal. Defendant’s counsel then filed a formal notice of appeal and a | ^motion to reconsider sentence. The district court granted the motion for appeal and denied the motion to reconsider .sentence, This appeal timely follows.

Errors Patent

Louisiana Code of Criminal Procedure article 920 directs appellate courts to consider errors discoverable by an inspection of the pleadings and proceedings. State v. Thomas, 2012-0177, p. 6 (La. App. 1 Cir. 12/28/12), 112 So.3d 875, 878. In this case, the record reveals that when resentencing Defendant as a fourth-felony habitual offender on his conviction for home invasion, the district court failed to impose the mandatory fine required by La. R.S. 14:62.8(B). Additionally, the record establishes that although Defendant was- found guilty as a fourth-felony offender on each conviction, the district court failed to impose the mandatory minimum enhanced sentence for each offense as required under La. R.S. 15:529.1.

Statutory restrictions are contained in a sentence whether or not verbally imposed by the sentencing court. State v. Hall, 2002-1098 (La. App. 4 Cir. 3/19/03), 843 So.2d 488. With respect to the failure to impose: a fine, the failure, to impose a mandatory fine requires a remand of the case for the imposition of the fine. See State v. Jefferson, 2004-1960, p. 40. (La. App. 4 Cir. 12/21/05), 922 So.2d 577; State v. Brown, 2003-2155, p. 5 (La. App. 4 Cir. 4/14/04), 895 So.2d 542; State v. Lindsey, 2012-1195, p. 9 (La. App. 4 Cir. 11/20/13), 129 So.3d 759, 764-65. Thus, we remand this ease and instruct the district court' to impose • the fine required by La. R.S. 14:62.8(B).

Additionally, as stated supra, after being found guilty of the multiple bill, which alleged Defendant was a fourth-felony offender on each of his convictions in the case sub judice, Defendant was' resen-tenced to twenty-five years at hard -lábor for home- invasion, ten years for aggravated battery, and three years for domestic battery involving strangulation. The sentences for aggravated battery and domestic abuse battery do not comport with La. R.S. 15:529.1, which requires that a defendant who is adjudicated as a fourth-felony offender be sentenced to a minimum of twenty years for-new felony convictions. See supra, fn. 7.

In State v. Kelly, 2015-0484 (La. 6/29/16), 195 So.3d 449, the Louisiana Supreme Court made clear the extent to which appellate courts may correct illegally lenient sentences for patent error. After finding that an error is patent on the face of the record when it is discoverable by an inspection of the pleadings and proceedings without an inspection of the evidence, the Kelly court stated that bills |7of information and verdicts are parts of criminal records that can be reviewed during a patent error analysis. Id. at 2015-0484, p. 6, 195 So.3d at 453 (citations omitted).

In the case sub judice, the multiple bill of information clearly charges Defendant as a multiple offender on the home invasion, domestic abuse battery by strangulation, and aggravated battery counts. The district court’s verdict found : Defendant guilty of the multiple bill of information. Accordingly, unlike the alleged error of not sentencing Defendant under La. R.S. 14:62.8(B)(3)(repealed November 1, 2017) addressed in the partial concurrence and partial dissent filed in this matter, this error is patent on the face of the record.

The authority to correct illegally lenient sentences is permissive, not mandatory. See State v. Bell, 2014-735, p. 11 (La. App. 5 Cir. 3/11/15), 169 So.3d 574, 579. Due to the length of Defendant’s sentence as to home invasion, which he is serving concurrently with these counts, correcting Defendant’s sentences for domestic abuse battery by strangulation and aggravated battery would likely not increase the amount of time Defendant would spend imprisoned. Using our discretion not to correct these sentences in this domestic violence case would be an arbitrary decision not to follow the will of the Legislature as expressed in La. R.S. 15:629.1 rather than an exercise of restraint .arguably warranted by a desire not to place Defendant in a worse position for having exercised'his right to appeal. Accordingly, we vacate Defendant’s sentences for aggravated battery and domestic abuse battery by strangulation, and remand the case for resentencing on these two counts in accordance with La. R.S. 15:529.1.

JjAssignments of Error

Defendant assigns multiple errors regarding his trial, including insufficiency of evidence, a Confrontation Clause violation, and a claim of ineffective assistance of counsel. When a defendant asserts multiple trial errors, including sufficiency of the evidence, the appellate court must first determine the sufficiency of the evidence. State v. Williams, 2015-498, p. 4 (La. App. 3 Cir. 12/9/15), 181 So.3d 857, 861.

Defendant argues that the evidence for his convictions is insufficient. Under Jackson v. Virginia, when analyzing the sufficiency of evidence, the reviewing court must view the evidence in the light most favorable to the prosecution and analyze whether any rational trier of fact could have found that the State proved its case beyond a reasonable doubt. State v. Brown, 2003-0897, p. 18 (La. 4/12/05), 907 So.2d 1, 22. “[Tjhe rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court.” State v. Williams, 2011-0414 p. 18 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771. The existence of conflicting statements as to factual matters affects the weight of the evidence, not its sufficiency, and such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. “The testimony of a single witness, if believed by the trier of fact, is sufficient to support a 1 nconviction.” On appeal, a reviewing court must consider the record as a whole, as that is what a rational trier of fact would do. State v. Santinac, 1999-0782, p. 6 (La. App. 4 Cir. 6/14/00), 765 So.2d 1133, 1137.

Defendant first argues that the evidence is not sufficient to support his conviction for home invasion. The Louisiana legislature has defined home invasion as:

.. .the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface or damage the property of another.

La. R.S. 14:62.8(A).

Defendant argues that the evidence was insufficient in two respects: (1) that the entry was not unauthorized; and (2) that the dwelling he entered did not belong to another. Regarding Defendant’s argument that his entry was authorized, Louisiana courts have previously held that the fact that a person previously had permission to enter a house does not imply that the person continues to have such authorization. The relevant inquiry is “not whether defendant could generally enter the victim’s residence, but whether this particular entry was authorized.” State v. Spain, 99-1956, p. 7 (La. App. 4 Cir. 3/15/00), 757 So.2d 879, 884. In State v. Ellis, 2012-0540, p. 8 (La. App. 4 Cir. 1/16/13), 109 So.3d 944, 949, this Court hnupheld a conviction of home invasion where a defendant had an oral sublease with the victim, had already paid rent for that month, had stayed at the residence several days leading up to the incident, and still had his belongings inside. The Ellis court found that the defendant’s entry into the dwelling was “unauthorized,” after victim testified that the defendant did not have permission to enter the home after she locked him out. Id. In the case sub judice, as in Ellis, Defendant’s prior permission to be in the home, his possession of a house key, and the presence of his personal items in the victim’s home are not sufficient to imply that Defendant was authorized to enter the victim’s home on September 14,2014.

Defendant also argues that the victim’s failure to change the locks evidences his continued authorization' to be present in her home. Defendant has faded to cite any eases, and we have found none, that require the victim to bear the financial burden of replacing the locks in order to revoke her .previous consent to another’s entry into her home. Given that Defendant hid in the closet and that the victim asked her uncle to search the premises for Defendant, t|ie jury had a reasonable, basis to conclude that Defendant entered the victim’s home that night without authorization. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

As to Defendant’s argument that the dwelling he entered did not belong to another, Defendant relies upon the assertion that he was a resident of the victim’s home at the time of the offense. He contends that his possession of the house key and the fact that he maintained a Dish Network satellite/cable account at the home demonstrated he lived there at the time and that the dwelling did not belong (solely) to another. This argument lacks merit. The record shows that the lease on Inthe home was solely in victim’s name and, although Defendant had permission to reside there while they were dating, she revoked that permission prior to the September 14, 2014 incident. Compare State v. Coleman, 2002-1000, p. 13 (La. App. 4 Cir. 9/25/02), 828 So.2d 1130 (finding that a jury had a reasonable basis to conclude that the defendant committed an unauthorized entry even though the defendant and victim had lived together, defendant’s belonging were still in the home, and the defendant had possession of a house key). Moreover, the victim asked Defendant to return the house key on several occasions and he refused, and she asked Defendant to cancel the Dish Network account. Accordingly, a rational finder of fact viewing the evidence in the light most favorable to the prosecution could have found that the home belonged to another. See State v. Wilson, 2006-1421 p.11 (La. App. 4 Cir. 3/28/07), 956 So.2d 41, 48. This assignment of error lacks merit.

Defendant next argues that the evidence is not sufficient to support his conviction for domestic abuse battery by strangulation. He asserts that the State failed to prove by sufficient evidence that the victim was strangled. La. R.S. 14:35.3(L) defines domestic abuse battery by strangulation as, in relevant part:

A. Domestic abuse battery is the intentional use of force or violence committed by one household member or family member upon the person of another' household member or family member,
B. For purposes of this Section: ■
(7) “Strangulation” means intentionally impeding the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of the victim.

In the case sub judice, the victim testified that she was strangled and Officer Daggs testified that the victim gave both a verbal statement at the scene and |12a written statement at the hospital indicating that she was strangled. The victim’s uncle also testified that Defendant strangled the victim. Additionally, multiple 911 calls were admitted into evidence and played for the jury, during which family members present at the scene allege that Defendant is' strangling the victim at the time of their calls.

Nevertheless, Defendant argues that this evidence is insufficient to prove domestic abuse battery by strangulation because he alleges that the victim’s medical records show no evidence that she was strangled. This is inaccurate. The victim’s medical records indicate that she complained of neck pain and was brought to the hospital in a cervical collar, more commonly known as a neck brace. Moreover, the jury could have properly credited the witness testimony accusing Defendant of strangulation, as the statutory definition of strangulation requires that Defendant impeded the victim’s breathing or flow of blood by applying pressure to her throat or neck, not that he must cause some injury by doing so that would be noted in medical records. Compare State v. Byles, 94-776, p. 6 (La. App. 5 Cir. 2/15/95), 652 So.2d 59, 64 (wherein a court affirmed a defendant’s conviction of second degree murder where the evidence otherwise indicated-that the cause of death was strangulation, despite the absence of marks on the body associated with strangulation). A rational juror, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that Defendant strangled' the victim. This assignment of error lacks merit.

Further, -Defendant argues that the evidence is insufficient to convict him of aggravated battery. La. R.S. 14:34 defines, aggravated battery as “a battery committed with a dangerous weapon.” A dangerous weapon is defined as “any gas, liquid or other substance or instrumentality, which, in hsthe manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3).

Defendant argues that the evidence was insufficient on this count because the State did not provide sufficient evidence to show that Defendant hit the victim with a broom handle. The victim testified that she was hit with a broom handle, and Officer Daggs observed a broken metal broom handle at the scene. Moreover, the victim’s medical records indicate bruises on her face and an open wound near her left eye. Viewing the evidence in the light most favorable to the prosecution/ a rational jury - could - have found'that the victim was in fact battered with a broom handle. Furthermore, a rational jury could have also determined that the broom handle, in the manner it was used, constitutes a dangerous weapon.Compare State v. Davis, 2013-48,161, p.9 (La. App. 2 Cir. 8/7/13), 121 So.3d 1207, 1212 (wherein a court found that the jury was reasonable in concluding a mop handle and other ordinary household items utilized by defendant to physically beat and injure victim constituted dangerous weapons as contemplated by the statute). This assignment of error lacks merit.

Additionally, Defendant argues that he did not have an opportunity to confront or cross-examine a relative of the victim. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend. VI. The Confrontation Clause- bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In the case sub judice, victim’s relative was not called to testify by the State or Defendant during trial. Rather, the relative placed a 911 phone call .at the scene during -the September 14, 2014 incident which was played for the jury at trial.

Statements are non-testimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006); State v. Beauchamp, 2010-0451, p. 4 (La. App. 1 Cir. 9/10/10), 49 So.3d 5, 7. Because a review of the 911 call at issue indicates the relative’s statement had the primary purpose of enabling police officers to respond to an ongoing emergency at the victim’s residence, the relative’s statement was not testimonial in nature. Accordingly, Defendant’s right, to confrontation has not been violated. This assignment of error lacks merit.

Lastly, Defendant argues that his counsel denied his request for an expert witness and such expert would have caused a different outcome of the case. We construe this pro se, assignment of error to argue ineffective assistance of counsel. See State v. Bradley, 516 So.2d 1337, 1339 (La. App. 4th Cir. 1987) (wherein this Court construed the defendant’s pro se assignment of error based on its contents rather than the defendant’s phrasing of the assignment.)

As a general rule, a claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief at the district court, rather than on appeal. This is because post-conviction relief creates the opportunity for a full evi-dentiary hearing under La. C.Cr.P. art. 930. State v. Ellis, 42,520, p. 19 (La. App. 2d Cir. 9/26/07), 966 So.2d 139, 150; State v. Payne, 47,481, p. 10 (La. App. 2 Cir. 12/12/12), 108 So.3d 174, 181. The record before the Court contains no evidence to support Defendant’s argument that he requested an expert and his counsel denied the request. Accordingly, the record before the Court is insufficient to allow the Court to address this assignment of .error.

Defendant’s convictions are affirmed. Defendant’s sentences aggravated battery and domestic abusé battery are vacated, and the case is remanded with the instruction that the district court resentence Defendant on those counts in accordance with the requirements of La. R.S. 15:529.1. Defendant’s sentence for home invasion is affirmed, however, the district court is further instructed to impose the fine required by La. R.S. 14:62.8(B).

CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART; REMANDED WITH INSTRUCTIONS

JENKINS, J., CONCURS IN PART AND DISSENTS IN PART

      . Defendant’s counsel assigned error only to his conviction for home invasion. Defendant, through a pro se supplemental brief, assigned errors to his conviction for aggravated battery, a felony in violation of La. R.S. 14:34, and domestic abuse battery by strangulation, a felony in violation, of La. R.S. 14:35.3(L).

      . In Jackson v. Virginia, the Supreme Court provided the standard for review of a claim of insufficiency of the evidence, stating
      the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
      443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

      . During the attack victim’s uncle and cousin, who had arrived on the scene, called 911.

      ., On March 15, 2016, the State filed a multiple bill of information pursuant to La. R.S. 15:529.1, charging Defendant as a quadruple offender based on a 2009 guilty plea to unauthorized entry of an inhabited dwelling; a 2002 guilty plea to illegal possession of a stolen automobile worth over $500; and a 1996 guilty plea to illegal possession of a ' stolen automobile worth over $500. On June 1, 2016, the State amended the multiple bill of information to add another predicate conviction, a 2004 guilty plea to illegal possession of a stolen vehicle worth over $500 and theft over $500.

      . The sentences imposed were twenly-five years at hard labor for home invasion; ten years for aggravated battery; and three years for domestic abuse, all to'run concurrently with each other and any other charge.

      . La. R.S. 14:62.8(B) (2014) provides that "whoever commits the crime of home invasion shall be fined riot more than five thousand dollars and shall be imprisoned at hard labor for not less than one year nor more than thirty years.” See also State v. Ellis, 2012-0540, p. 5 (La. App. 4 Cir. 1/16/13), 109 So.3d 944, 947 (holding that "the failure to impose a mandatory fine requires that the matter be remanded for imposition of that fine”).

      . La. R.S. 15:529.1 states "[t]he person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term of not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life,” , (emphasis added). See State v. Shaw, 2006-2467pp. 23-24 (La. 11/27/07), 969 So.2d 1233, 1247 (holding that all sentences for convictions on same date for a single course of criminal conduct are subject to enhancement under the Habitual Offender Law, overruling State ex rel. Porter v. Butler, 573 So.2d 1106 (La. 1991), and State v. Sherer, 411 So.2d 1050 (La. 1982)).

      . As Judge Jenkins recognizes in her partial concurrence and partial dissent filed in this matter, the facts of this case could implicate a sentencing enhancement under the prior version of 14:62.8(B)(3)(2017)(repealed 11/1/2017). The dissent as to this alleged error is based on the fact that the victim "testified that her two children were in the house when Defendant emerged from the closet..and testified that "one of her children was two years old at the time.” As the dissent makes clear, correcting this error requires reviewing the evidence — not merely the pleadings and proceedings — before this Court. We decline to impose this sentencing énhancemént on appeal, as such a correction goes beyond patent error review as contemplated by La. C.Cr.P. art. 920. See State v. Kelly, 2015-0484, p. 6 (La. 6/29/16), 195 So.3d 449, 453 (finding that where discovery and correction of an illegally lenient sentence required review beyond "a mere inspection of the pleadings and proceedings and without inspection of the evidence,” the appellate court exceeded its authority to correct errors patent when it corrected that sentence). Moreover, any fact other than that of a prior conviction that increases the penalty for a crime must be submitted to jury and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 492, 120 S.Ct. 2348, 2364, 147 L.Ed. 2d 435. As stated supra, the bill of information contains no allegation that a child under the age of twelve was present at the time of the home invasion, and thus, the jury made no finding in that regard.

      . See supra n. 8.

      . While Defendant did not 'fully brief his Confrontation Clause and ineffective assistance of counsel assignments of error, he argued them summarily. Accordingly, we choose to address these assignments of error. See Clark v. Dep’t of Police, 2012-1274, p. 8 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, 536 (wherein . this Court held Uniform. Rule, Courts of Appeal, Rule 2 — 14, which required the courts to view a defendant’s claim not briefed or argued on appeal as abandoned, invalid),

      . State v. Wells, 2010-1338, p. 5 (ta. App. 4 Cir. 3/30/11), 64 So.3d 303, 306; see also State v. Jones, 537 So.2d 1244 (La. App. 4 Cir. 1989).

      . Wells, 2010-1338, p. 5, 64 So.3d at 306.

      . State v. Nunnery, 2004-1560, p. 12 (La. App. 4 Cir. 12/8/04), 891 So.2d 67, 73; see also State v. Cojoe, 2000-1856 (La. App. 4 Cir. 3/21/01), 785 So.2d 898 (finding that even though the defendant still had belongings inside of the residence and although the defendant previously had permission to enter the house, the- evidence that the victim subsequently changed the locks demonstrated that the defendant’s entry on that occasion was unauthorized.); see also Wells, 2010-1338, pp. 5-8, 64 So.3d at 306-08 (where the court found the defendant’s entry was unauthorized based on police officer’s testimony that the victim told him she asked the defendant, her ex-boyfriend, not to enter the house and had locked him out. The door had been damaged when the defendant kicked it open and pulled the victim out of bed.)

      . Defendant refers to this item in his brief as a "metal pipe." In the record, it is repeatedly identified as a broken broom handle.


source: Caselaw Access Project

author: Judge Roland L. Belsome

license: Public Domain

text:
    Zachary ADDISON and Andree Addison v. AFFIRMATIVE INSURANCE COMPANY, Liberty Mutual Insurance Company and Phara Martin
    NO. 2017-CA-0378
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 15, 2017

      Matthew D. Hemmer, MORRIS BART, LLC, 601 Poydras Street, 24th Floor, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    H. Minor Pipes, III, Susan M. Rogge, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, L.L.C., 909 Poy-dras Street, Suite 2400, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
   Judge Roland L. Belsome

It The appellants, Zachary and Andree Addison (the Addisons), appeal the trial court’s granting of summary judgment in favor of LM General Insurance Company.

On May 11, 2013, Zachary Addison’s automobile was rear-ended by Phara Martin. Thereafter, the Addisons filed suit against Ms. Martin, Affirmative Insurance Company, Martin’s liability insurer, and Liberty Mutual, which they allege provided uninsured/underinsured motorist (UM) coverage to them.

LM General filed a motion for summary judgment seeking the dismissal of the Ad-disons’ claims for UM bodily injury (UMBI) coverage. The motion for summary judgment was based on Mr. Addison electronically selecting economic-only UMBI coverage. The trial court granted the motion for summary judgment and limited LM General’s coverage to economic-only UMBI. This appeal followed.

|2It is well settled that motions for summary judgment are reviewed de novo on appeal. La. C.C.P. art. 966 provides that “a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.”

Facts

Mr. Addison obtained insurance from LM General by receiving a quote via telephone. He was then given the option to complete his transaction by executing emailed documents that could be returned by mail, fax, or electronically. He chose to complete and submit the documents elec-ironically. The electronic documents had selections of coverage pre-made based on the quote he received. The pre-selected information could not be changed and Mr. Addison did not inquire about changing the selections any time prior to executing and returning the documents. There is no dispute that the dqcuments were electronically signed by Mr. Addison. Additionally, Mr. Addison was sent a copy of the policy prior to its effective date.

On appeal, the Addisons raise numerous assignments of error that all pertain to the validity of the UM rejection form that was e-signed by Mr. Addison and provided for economic-only UMBI coverage.

Generally, UMBI coverage is required by Louisiana law to be in the same amount as the policy limits of bodily injury liability coverage. However, the law allows a named insured to select lower limits for UMBI coverage, reject UMBI | .¡coverage completely, or select economic-only UMBI coverage on a form prescribed by the Commissioner of Insurance. In Duncan v. U.S.A.A. Ins. Co., the Louisiana Supreme Court set forth six requirements for a valid UM form. Those requirements are: 1) initialing the selection or rejection of coverage chosen; 2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; 8) printing the name of the named insured or legal representative; 4) signing the name of the named insured or legal representative; 5) filling in the policy number; and 6) filling in the date.

Although, the Addisons assert that the UM rejection form that Mr. Addison e-signed was deficient in meeting the Duncan criteria, we disagree. The Addisons assert that the UM form rejection form should fail because the coverage was preselected and could not be changed and his name and date do not appear in the designated area on the form. In addition to raising an issue about the proximity of the insured’s name and date on the form, the Addisons also argue that an electronic signature cannot stand for both the printed and signed name.

• This Court recently addressed the validity of an electronically signed UM form in Maradiaga v. Doe. In Maradiaga, the insured challenged the e-signed UM rejection form on three grounds: 1) the agent signed and initialed it, 2) the insured did not have the option to make changes to the form, and 3) the insured did not unmistakably and unambiguously reject UM coverage. Like in this case, the [¿insurer filed a motion for summary judgment based on the electronically signed UM form. The motion was granted by the trial court and the insured appealed. This Court found that just Mr. Maradiaga’s testimony that he did not know what he was signing was not enough to overcome the presumption that he knowingly rejected UM coverage.

“A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” In this case, the form meets the criteria of Duncan. Mr. Addison electronically initialed his selection of economic-only UMBI coverage, his name is printed on the form that was electronically signed by him and it contains the date and policy number. Mr. Addison does not dispute that he e-signed the document, so his claim that his name needs to appear twice on the document to be valid lacks merit. As this Court acknowledged in 'Maradia-ga, “the Uniform Electronic Signature Law, La. R.S. 9:2602, et seq, applies to automobile insurance policies and required UM forms.” The only evidence presented to rebut Mr. Addison’s selection of economic-only coverage is his testimony that he desired and intended on purchasing full coverage UM.

We find that this Court’s opinion in Maradiaga is controlling. Accordingly, because the Addisons failed to sufficiently rebut the presumption that the LM General UM form is valid, the trial court’s granting of summary judgment is affirmed.

AFFIRMED

      . Although LM General Insurance is the proper party name, the petition names Liberty Mutual Insurance.

      . Mr. Addison alleges injuries from the accident, while Mrs. Addison asserts a loss of consortium claim.

      . Maradiaga v. Doe, 15-0450, p. 4 (La.App. 4 Cir. 11/25/15), 179 So.3d 954, 957, writ denied, 2015-2361 (La. 2/26/16), 187 So.3d 470 (citing Quantum Resources Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (La. 3/19/13), 112 So.3d 209, 214; Garrison v. Old Man River Esplanade, 13-0869, p. 3 (La.App. 4 Cir. 12/18/13), 133 So.3d 699, 701; La.Code Civ. Proc. art. 966).

      .La. C.C.P. art. 966 (A)(3).

      . See La.R.S. 22:1295(Z )(a)(i).

        . Id.

      . 06-0363 (La. 11/29/06), 950 So.2d 544,

      . Id.

      . La, R.S. 22:1295(l)(a)(ii).

      . Maradiaga, 15-0450 at p. 7, 179 So.3d at 959.


author: Judge Roland L. Belsome LOBRANO, J.,

text:
    STATE of Louisiana v. Antoine GREEN
    NO. 2017-KA-0520
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 15, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY ORLEANS PARISH, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR-THE STATE OF LOUISIANA
    Christopher A, Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
   Judge Roland L. Belsome

Statement of Facts

In the early morning hours of July 13, 2015, the Defendant entered Barcadia Bar and Grill, ah establishment in New Orleans, with the intent of robbing the business. The Defendant brandished a firearm and proceeded to the money room in the back of the business. The Defendant pointed the firearm at the three people located' in the money room and demanded the money be placed into a plastic bag. During this time, the Defendant was pointing the gun at Lea Wolfe, the manager on duty. When the Defendant was momentarily distracted by some activity outside of the room, one of the other victims was able to shut the Defendant outside of the room and lock the door. That action caused the Defendant to flee the scene without the money.

Ms. Wolfe triggered the alarm alerting the police of the attempted armed robbery. Upon arrival, New Orleans Police Detective Steve Nolan viewed the surveillance recordings with the manager. Ms. Wolfe informed Det. Nolan that the suspect resembled a former employee, Antoine Green. Det. Nolan learned the name of the Defendant’s then employer and went to his place of employment to discuss the incident. Det. Nolan brought Defendant to the police station where he |2was read his rights, and the Defendant fully confessed to the attempted armed robbery of Barca-dia.

Procedural History

On December 23, 2015, the Defendant was charged by bill of information with attempted armed robbery while armed with a firearm. On January 11, 2016, the Defendant appeared for arraignment and entered a plea of not guilty. On March 7, 2017, the Defendant appeared for trial with counsel. Trial’ was continued due to the possibility of a plea .offer. The state offered to remove the firearm enhancement under La. R.S. 14:64,3 (B) and request a five-year sentence in the Department of Corrections. The Defendant elected to reject the plea offer, enter a plea of guilty as charged and requested a downward departure from the mandatory sentence in accordance with State v. Dorthey. Thereafter, the district court sentenced Defendant to five years.

A Dorthey hearing was conducted immediately following sentencing to determine if a downward departure from the statutorily required minimum sentencing was warranted. Following the Dorthey hearing, the district court imposed the mandatory five-year hard labor without benefits sentence under La. R.S. 14:64.3 (B) for commission of attempted armed robbery when the dangerous weapon is a firearm. This appeal followed.

Assignment of Error

On appeal, the Defendant maintains that the trial court erred in making inconsistent findings regarding the excessiveness of his sentence and by declining to impose a downward departure in accordance with Dorthey.

IsThe Louisiana Constitution guarantees that “[n]o law shall subject any person to ... cruel, excessive or unusual punishment.” That protection allows the judicial branch to determine whether the range of sentences authorized by a criminal statute is excessive for a particular defendant. The court must start with the presumption that a mandatory minimum sentence is constitutional. In order to rebut that presumption, a defendant must clearly and convincingly prove that he is exceptional. This Court has articulated that exceptional “means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”

If the mandatory minimum sentence is constitutionally excessive then a downward departure is required under Dorthey. “A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.

In the instant case, the Defendant alleged his sentence was excessive due to his youth, age twenty-three, and the fact that it was his first offense. The LDefendant has asserted no additional factors which would make his situation exceptional. In State v. Henry, Demonte Henry was found guilty of attempted armed robbery and attempted armed robbery with a firearm. He was sentenced to twenty years at hard labor without benefits for the attempted armed robbery conviction, and five years at hard labor without benefits for the attempted armed robbery with a firearm conviction. On appeal, Henry cited to his youth and the fact that he was a first time offender to challenge his sentence as excessive. The Court of Appeal affirmed the defendant’s sentence stating: “[W]e cannot say that the defendant’s sentences shock our sense of justice or make no measurable contribution to acceptable penal goals.”

In this case, the Defendant held three people at gun point in their place of employment. Ms. Wolfe testified that she and the other victims were frightened and now carry firearms for their protection. After hearing the testimony of Ms. Wolfe, Nicholas Johnson (the Defendant’s employer at the time of the hearing), and allowing the defendant to speak on his own behalf, the trial court made a clear finding that the legislatively mandated minimum sentence of five years was not constitutionally excessive. The trial court stated, “I don’t think that it’s constitutionally excessive.” After declaring the sentence constitutional, the trial court further stated:

I think that it is an inappropriate sentence. I don’t think that it has reasonable contributions for this individual, but the Legislature that makes those laws and the State that establishes which law to charge each person that walks into this Court.. .could have made these ^changes. But you’re now asking a judge to look at a statute that says you can’t go below it, and then you’re asking a Judge to look at a statute and then go below it by using one case from the Supreme Court that no one has ever used to go below it on a matter like his, on a violent offense, and I’m not going to do it.

On appeal, the Defendant maintains that the later statements made by the trial court indicates that she misapplied the law. We disagree. Clearly, the trial court did not agree with the length of the minimum sentence, but ultimately concluded that it was not unconstitutionally excessive. The relevant question for this Court is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Thus, absent a showing that the Defendant was exceptional, the trial court was within its discretion to impose the sentence.

On the record before us, the Defendant failed to meet his burden of clearly and convincingly proving he was exceptional to warrant a downward departure in his sentence. Accordingly, we cannot find that the trial court abused its discretion in imposing the five-year minimum sentence. Antoine Green’s sentence is affirmed.

AFFIRMED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent from the majority opinion. Because a review of the sentencing transcript as a whole reveals that the district court made findings inconsistent with its determination that the sentence imposed on Antoine Green (“Defendant”) is not excessive and improperly found that it did not have the authority to sentence Defendant below the statutory minimum on a crime of violence, I would vacate Defendant’s sentence and remand for a proper sentencing hearing.

Louisiana Constitution of 1974, art. I, § 20 provides that “[n]o law shall subject any person to ... excessive .., punishment.” A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than a purposeless imposition of pain and suffering that is grossly out of proportion to the severity of the crime. State v. Zeitoun, 2017-0366, p. 9 (La. App. 4 Cir. 11/8/17), 231 So.3d 934 (citing State v. Ambeau, 2008-1191, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 215, 221). Mandatory minimum sentences are presumed to be constitutional. State v. Hernandez, 2002-892, p. 3 (La. App. 5 Cir. 1/28/03), 839 So.2d 281, 284 (analyzing whether a first offender |gwho pled guilty to an armed robbery had presented sufficient-evidence to justify a downward departure from the mandatory minimum sentence). However, should a defendant prove by clear and convincing evidence that he is exceptional such that the mandatory minimum sentence applied to him would be excessive, a court may downward depart from that mandatory minimum sentence. Id. at 2002-892, pp. 3-4, 839 So.2d at 284 (citing State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 676).

The majority opinion removes one statement, “I don’t think that it’s constitutionally excessive,” from the context surrounding it in order to reach the conclusion that the district court properly exercised its sentencing discretion. Despite stating that it did not find the sentence excessive, the district court called Defendant’s sentence “inappropriate” and declared that the sentence did not make “reasonable contributions” to acceptable goals of punishment for this individual — reasoning in direct conflict with Louisiana’s definition of an excessive sentence. This Court should not overlook this contradiction in the district court’s reasoning aiid lurch forward into an analysis of whether Defendant’s sentence is in fact unconstitutionally excessive.

Moreover, referencing State v. Dorthey, the district court declared that it did not have the authority to sentence Defendant below the mandatory minimum on a crime of violence. This is inaccurate. In Dorthey, the court found that the Louisiana Constitution’s prohibition against excessive sentences applies to mandatory minimum sentences under the Louisiana Habitual Offender Law. See 623 So.2d 1276 (La. 1993); see also La. R.S. 15:529.1 et seq. However, it is the Louisiana Constitution’s prohibition on excessive sentences, not the holding of Dorthey, which requires courts to downward depart where mandatory minimum ^sentences would be excessive as applied to particular defendants. The Dorthey court simply recognized this existing constitutional limit. Because the Louisiana Constitution prohibits excessive sentences without qualification, district courts may downward depart from mandatory minimum, sentences regardless of how they arise — including on crimes of violence. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (finding that the principles espoused in Dorthey apply to substantive criminal statutes as well as sentences under the Habitual Offender Law); Hernandez, 2002-892 at pp. 3-4, 839 So.2d at 284 (analyzing whether a downward departure was warranted where the defendant plead guilty to a crime of violence). This broad discretion is appropriately limited by the assumption of constitutionality our jurisprudence requires district courts to apply to sentencing statutes, see id., and by the fact that the La. C.Cr.P. art. 894,1 sentencing factors expressly require consideration of the multiple ways violence can be used during the commission of a crime.

The majority’s decision to omit this portion of the analysis in favor of reaching its own conclusion as to the sentence’s alleged excessiveness undermines the constitutionality of Defendant’s sentence. Given that the district court not only made findings inconsistent with its determination that Defendant’s sentence was unconstitutionally excessive, but also misunderstood its authority to correct an excessive sentence, I would vacate Defendant’s sentence and remand the case for a proper sentencing hearing.

      . 623 So.2d 1276 (La. 1993).

        . LSA-Const. art. 1, § 20.

      . See, State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274.

      . State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 676.

      . Id.

      . Id.

      . Dorthey, 623 So.2d at 1280 (citing State v. Scott, 593 So.2d 704, 710 (La.App. 4th Cir. 1991); State v. Lobato, 603 So.2d 739, 751 (La. 1992)).

      . Lobato, 603 So.2d at 751.

      . 14-1131 (La.App. 3 Cir. 3/4/15), 159 So.3d 1176.

      . Henry had allegedly pointed a gun at an acquaintance and told him to “give it up.” The acquaintance threw his cell phone at him and ran. In his defense, Henry suggested the incident was a prank, and he had no intent to rob the victim.

      . Henry, p. 10, 159 So.3d at 1183.

      . State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

      . See La. R.S. 14:2(B)(34) (defining an attempted armed robbery with a firearm as a "crime of violence”).

      . 623 So.2d 1276 (La. 1993).

      . See La. C.Cr.P. art,' 894,1 (B) (requiring consideration of the defendant's-cruelty to the victim, the risk of death or great bodily harm to more than one person created by, a defendant’s actions, the use of threats or actual violence during the commission of the offense, the use of violence to influence the criminal proceedings arising from the offense, the existence of a significant permanent injury to the victim, the defendant's use of a dangerous weapon, and the use of threatened use of physical force when committing an offense with a firearm when sentencing a defendant), See also Zeitoun, 2017-0366 at p. 9, 231 So.3d at 941 (analyzing whether the district court adequately applied the La. C.Cr.P, art. 894,1 sentencing factors when determining whether the defendant’s sentence was excessive).


author: Judge Marion F. Edwards, Pro Tempore

text:
    IN RE: AGGRIEVED PRACTITIONER
    NO. 2017-CA-0298
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 15, 2017

      James M. Williams, Conrad Meyer, CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, L.L.P., One Galleria Blvd., Suite 1100, Metairie, LA 70001, Stewart E. Niles, Jr., Bryan J. Knight, NILES, BO-URQUE & KNIGHT, L.L.C., 909 Poydras Street, Suite 3500, New Orleans,' LA 70112, COUNSEL FOR PLAINTIFF/AP-PELLEE
    Ralph H. Wall, Raymond P. Ward, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

hThe Louisiana State Board of Medical Examiners (the Board) appeals a judgment of the trial court remanding this matter back to the Board for reconsideration of a decision to revoke a member’s license to practice medicine. We reverse and reinstate the decision of the Board.

Plaintiff, Aggrieved Practitioner (AP), a physician licensed to practice medicine in the State of Louisiana, filed a petition in the district court for judicial review and/or appeal of a decision by the Board revoking his license to practice medicine on grounds of incompetence” involving AP’s performance of Transforminal Lumbar Interbody Fusions, a neurosurgical spine procedure performed by both neurosurgeons and orthopedic surgeons. After a hearing on the matter, the trial court found that the hearing conducted by the Board was “in violation of AP’s constitutional .due process rights, made upon unlawful procedure, and clearly arbitrary and characterized by. an abuse of discretion.” However, the trial court did not reverse, vacate or amend the decision of the Board. Instead, the trial court remanded the matter for a new trial “to allow full development of the |2record where all relevant, . competent evidence. . .should be considered by the Board and then they can give that evidence whatever weight they think it deserves.”

The Board appeals and assigns two errors; that the trial court erred in remanding the matter for the taking of additional evidence, and in concluding that the penalty imposed by the Board is too harsh.

PROCEDURAL HISTORY

This matter began on June 10, 2010 with a letter to AP informing him of an initial investigation by the Board concerning certain complaints received. Shortly thereafter the parties met and agreed that AP would not perform Transforminal Lumbar Interbody Fusion (TLIF) surgery during the investigation. It was also agreed that AP would submit to certain evaluations from the Physician Assessment and Clinical Evaluation program (PACE) and Clinical Competence Solutions (CCS). On September 3, 2010, the Board wrote to AP acknowledging his participation in PACE, but informing AP that there was no indication that he entered into an agreement with CCS or any other comparable entity. The letter also indicated the Board received information suggesting that AP performed recent TLIF surgeries, and informed him of additional complaints questioning his surgical competence.

On September 20, 2010, the parties entered into an interim consent order whereby AP agreed not to perform surgery until the Board issued a decision or an order removing the restriction. The order also mandated that AP participate in a Board approved assessment, training, or clinical course of study.

On March 20, 2012, a formal complaint to the Board was filed, charging AP with 23 counts of medical malpractice involving numerous violations of the |sMedical Practice Act embodied in La. R.S. 37:1261 et seq. Specifically, AP was charged with the following violations relating to 23 patients:

1.) Professional or medical incompetency
2.) Unprofessional conduct
3.) Continuing or recurring' medical practice which fails to satisfy the prevailing and usually accepted standards of medical practice in this state
4.) Abandonment of a patient
5.) Knowingly performing any act which, in any way, assists an unlicensed person to practice medicine, or having professional connection with or lending one’s name to an illegal practitioner

AP filed an answer, exceptions of vagueness, ambiguity and lack of amicable demand' as well as a réconventional demand alleging that the complaints made against him were initiated and generated by a plaintiffs’ counsel who represented 12 of the 23 patients identified in the complaint to further his civil suits against AP. AP asserted his rights of due process and equal protection were violated throughout the undue delay of the Board’s investigation and for “unreliable, inefficient and indefensible process”, and abuse of prose-cutorial discretion and misconduct. AP also made allegations against the Board including violation of right to privacy, publically putting AP in a false light, and forcing him to sign an interim consent agreement in order to aggregate newly filed claims with prior claims. AP’s assertions of violation of his equal protection rights include fundamentally unfair treatment. AP also makes a claim of breach of contract relating to alleged breaches of an informal agreement between the parties, as well as the interim consent order. He asserts vices of consent to vitiate consent, fraud, misrepresentation, duress and detrimental reliance relating to the interim consent order. Finally, AP argued the Board should be estopped from bringing any | complaints against him that are outside of the scope of the investigation pending at the time of the informal agreement.

On October 14, 2013, AP proposed a consent order which would vacate and supersede the prior interim consent order. Under the new proposed consent order, AP’s license would be limited to a nonsurgical practice. However, that limitation would be removed upon his acceptance of and strict compliance with certain conditions, including his acceptance into and completion, of a Board approved neurosurgery graduate medical education program. That proposal was rejected by the Board.

The Board assembled a panel of four physicians presided over by an independent counsel to conduct the investigation into the allegations against AP. After discovery and several continuances, the Board conducted hearings between February 21, 2015 and June 29, 2015;- and, on October 26, 2015, the Board rendered a decision-finding that AP failed to satisfy the prevailing and usually accepted standards of medical practice in the State of Louisiana. The decision also found AP “guilty’ of violating the Louisiana Medical Practice Act (La. R.S. 37:1285(13)), in that AP failed to create adequate medical records. However, the Board found AP “not guilty” on the charges of abandonment of a patient and of assisting an unlicensed .person to practice medicine.

AP filed a motion for rehearing that was denied by the Board. AP filed an appeal of the Board’s decision with the district court. Upon consideration of the merits of AP’s appeal, the district court rendered an opinion remanding the matter back to the Board for further proceedings, but did not reverse, vacate or alter the Board’s ruling. That judgment is now before this Court on appeal from the Board.

J^FACTS

The allegations of incompetence relate to a minimal' surgical spinal fusion procedure known as Transforminal Lumbar In-terbody Fusion. According to the expert testimony, in this surgery there are two goals, to decompress the nerve root between two vertebrae, and to ultimately fuse those two segments together. To accomplish this, the surgeon removes disc materials. between the vertebrae and ■places a cage into the disc space with bony materials harvested, along with other donated allografts or bone grafts, in hope of fusing the spinal segment. The purpose is to restore the lost disc space and decompress the nerve to alleviate pain. The cage inserted into the spinal-column is designed to allow bone growth.

It is necessary to optimize the environment where the bone could grow between the discs. To do that, a surgeon must remove disc materials to create the empty space to place the bone grafts that are harvested and place a cage in the space to hold the bone graft in place until it fuses.

At the hearing before the Board, the complainant went forward with 11 of the original 23 cases cited in the complaint against AP. In its consideration of the complaint, the Board heard testimony, offered by both parties to the complaint, from various experts in the fields of neurosurgery, spinal surgery, minimally invasive surgery, orthopedic surgery, instrumentation surgery, radiology, interventional neu-roradiology, kyphoplastic surgery, neuro-radiology-neurosurgery, and residency training. Additionally, the Board considered the medical records of the 11 patients whose treatment forms the basis of the complaint, and heard testimony from some of those patients;

J^THE ELEVEN PATIENTS "

L) O.B.

O.B. was a 72 year-old man with a history of back pain at the time he saw AP. Because conservative treatment proved ineffective and the pain was getting worse, O.B. consulted AP. Physicians who testified agreed that O.B. had severe spinal stenosis. AP ordered a discogram which showed no pain for all levels from L1-L2 to L4-L5, but severe pain at level L5-S1. AP performed an L5-S1 fusion and an L4-5 and L3-4 decompression. After the surgery, O.B. experienced significant pain, and muscle spasms, a new symptom. AP decided that the pain was due to inflammation rather than any post-surgery problem. AP discharged O.B. and referred him to -a ■pain management physician.

O.B. subsequently saw Dr. Powell Auer, who ordered MRI and CT scans which revealed “diffuse severe degenerative changes everywhere.” Dr. Auer testified at the hearing and stated that in this case a “discogram is completely useless” and the decision to do a one level fusion was “absurd”. The tests also showed that the cage inserted by AP was misplaced and was the likely cause of O.B.’s pain. Dr. Auer explained that AP failed to remove sufficient disc tissue to allow the vertebrae to fuse. Dr. Auer also found fault with AP’s failure to perform the laminectomy to decompress the nerve roots, leaving O.B. with unrelieved severe lumbar stenosis.

All testifying doctors agreed that the cage was misplaced and could be a source of O.B.’s pain, although two doctors who testified for the defense were of the opinion that the surgical procedure did not breach the standard of care.

17However, these doctors did agree that the attempted laminectomy failed to adequately decompress the nerve roots. It was clear from the testimony that testifying doctors were disturbed by the fact that AP did not adequately investigate the cause of the post-op pain and was not truthful with the patient.

2.) K.I.

' K!. was a 24 year-old woman- who. sought treatment from AP for back and leg pain. She was able to manage the pain with low level medication and was functioning ádequately as a student. AP performed a decompressive factectomy at L5-Sl. AP testified that this patient had a “tricky anatomy” and that she did not have the normal amount of disc space. However, AP testified that he tapped the cage into place and verified its proper placement on the C-arm fluoroscopy. The surgery not only made the pain worse, it caused numbness and tingling below the waist, as well as pain in her right foot. After the post-op worsening of pain, AP ordered an MRI and a CT scan, which according to AP’s testimony revealed that the cage was properly placed inside of the vertebrae.. • AP referred K.I. to a pain management physician.

K.I. sought a second opinion from Dr. Anthony Sin. Dr. Sin reviewed the MRI and CT scan and found that the cage was outside the vertebral body itself and could not have migrated there. Dr. Sin also testified that K.I. has hemi-vertebrae, a genetic malformation of her vertebral spine and was never a candidate for the surgery performed by AP because there is no room for the cage used in such surgeries.

Because K.I. was forced to use a wheelchair and was hospitalized for treatment of an infection after the surgery performed by AP, Dr. Sin consulted two other physicians and waited a few months before making a treatment plan for K.I.

.IsUltimately, Dr. Sin performed surgery on K.I. exploring the aréa, finding compression of the nerve roots. Dr. Sin found no evidence of a facetectomy or micro-discectomy as recorded by AP in the medical records. Dr. Sin did what he could to decompress the nerve roots to relieve' the pain, with some success. After this surgery, KI.’s pain lessened.. Both Dr. Sin and Dr. John Steck, who testified for the defense, agreed.that AP failed to comply with the standard of care in his treatment of K.I.

3.). J.C.

J.C. had a history of spinal and leg pain resulting from a fall about 20 years earlier. AP ordered a discogram and found that J.C. had mid-level pain at L4-L5. AP performed a TLIF at that level, but did not schedule any ■ post-surgical ■ evaluations. About two months after the surgery, J.C. returned to AP with complaints of lower back pain in addition to pain in new areas of the spine. AP ordered a second disco-gram which showed that the pain level at L3-L4, one level above the surgical site, had gone from no pain to severe pain. AP performed a second surgery at the L3-L4 level. AP saw J.C. again about four months after this surgery. The pain continued and AP recommended a spinal cord stimulator. It was not until the final visit, over one year after the first surgery and about eight months after the second, that AP ordered x-rays to check the surgical hardware. The x-rays showed no spinal fusion occurred in either surgical area.

Dr. Milan Moody, who subsequently treated J.C., testified that the tests showed a multi-level pathology with degenerative changes of the facet joints. Dr. Moody testified that the single level fusions performed by AP had a high chance of failure because of the severity of the degenerative disc disease. He explained that a one level fusion would only move the pain up one level leading to “failed back | flsyndrome.” In fact, Dr. Moody testified that this case is being used as a teaching tool to show doctors what not to do. -

Dr. Moody, performed surgery on J.C. in which he did a revision decompression fusion spanning from L3 to SI. The old cages were removed and replaced with new cages properly placed in these disc spaces, old screws were removed and new screws placed at the L3-L4 and L5-S1 levels.- During the surgery, Dr. Moody observed that there was a lack of bone growth caused by the AP’s failure to properly prepare the surgical site where the fusion was attempted.

Based on the records and medical tests, Dr. Moody was of the opinion that recommending a single level L4-L5, rather than a multi-level fusion for this patient’s degenerative disc disease was a breach of the. standard of care. Two doctors who testified on AP’s behalf disagreed with that opinion, and believed that the treatment did not breach the standard of care. .

4.) B.M.

B.M., a man in his forties, went to AP complaining of low back and right leg pain that was ongoing for the past 10 years and was diagnosed as having degenerative disc disease. Tests showed the degenerative discs at L5-S1 were, the worst. AP discussed options with B.M., including a minimally invasive TLIF. B.M. told'AP that he was very active, still playing baseball and horseback riding. According to B.M., AP told him there was an 85% chance he would be back to those activities with no problems. AP denied making this promise to this patient.

B.M. opted for the surgery and AP performed a TLIF. When B.M. experienced post-op pain, AP ordered an MRI and a CT scan. AP checked -the tests and informed B.M. that everything was fine, but it would take a year to heal.

ImWhen the pain did not subside, B.M. consulted Dr. Powell Auer who viewed the MRI and CT scan taken by AP. Dr. Auer testified that, while a two level fusion would be reasonable if the patient had insisted and fully understood the risks, he would not recommend that surgery for this patient. Dr. Auer also testified that the original CT scan showed the cage was in the wrong place and this was pointed out by the radiologist.

Dr. Auer performed surgery on B.M. in which he removed the cages and remaining disc material to make way for new, properly placed cages. Dr. Auer testified that the original surgery would never have worked because there was insufficient disc material removed and cage was misplaced and pressing on the nerve root. Dr. Auer stated that, in essence, the operation was -half done. AP simply made a hole, rather than removing the disc, and tried to force the cage into the hole.

Dr. Auer believed that B.M.’s level of function before the surgery was much too high to warrant surgery. In Dr. Auer’s opinion, B.M. would not have consented to the surgery if he had been properly informed of the risks and the likely outcome. It was Dr. Auer’s opinion that AP’s treatment was below the standard of care. Dr. Voorhies, who testified in AP’s defense disagreed with Dr. Auer’s assessment that AP’s treatment of B.M. ..was below the standard of care.

5.) A.J.

A.J. went to AP with complaints of neck, leg and arm pain.- This patient is a woman who is morbidly obese. An MRI showed a large diffuse herniation at C7-T1. AP recommended an anterior cervical disc fusion. However, AP was unable to complete the surgery because the retractor was not long enough. Consequently AP completed the surgery posteriorly, even though" he had only discussed and [^gotten consent for an anterior surgery. He did, however, get the patient’s husband’s consent before completing the surgery.

The testimony regarding the surgery indicates that AP’s treatment met the acceptable standards. However, there was testimony to show that AP’s post-operative medical records on this patient are incomplete.

6.) C.N.

C.N., a teenaged girl, sought treatment with Dr. Steven Cox for pain in her back, and legs. Dr. Cox conducted diagnostic tests and concluded that this patient should be treated with physical therapy rather than invasive treatment. She then consulted AP, who ordered an MRI and a discogram. AP testified that he was reluctant to operate on a 19 year-old girl; however, C.N. told him the conservative treatment was not working and she -wanted relief from the pain. AP performed a fusion at L5-S1. Two days later C.Ñ. called AP complaining of lower back- pain that radiated into her hip. About two weeks later, AP saw C.N. and reported that all was well and did not document any physical evaluation. AP explained that it is his practice only to document abnormal findings. It also appears from AP’s testimony ■that he did establish a regular schedule for his post-op patients as a general rule. About one month later, C.N.. called to report pain and weakness in her back. AP referred her to physical therapy. Three months later, C.N. pain was getting worse. About one year after the surgery, AP ordered an MRI and a CT scan which showed a moderate to large central disc bulge or herniation at L4-L5.

The C.N- made a complaint and the case was referred to a Medical Review Panel. One of the doctors on that panel testified at the hearing. He stated the panel did not find AP had breached the standard of care in this case.

|iaDr. Nunley, .a physician who subsequently treated C.N. disagreed with the medical panel’s assessment. Dr. Nunley testified that' a single lever fusion was inappropriate for this patient considering the findings at L5-S1. C.N. required revision surgery to remove the spinal-córd stimulator and revise the fusion surgery performed by AP.

7.) W.H.

•W.H. presented as an adult male with a history of an L4-L5 and L5-S1 fusion performed 7 years earlier. He had a significant herniated disc at L3-L4. A -disco-gram revealed fissures at levels L3-L4, L4-L5 and L5-S1, although W.H. only reported pain at the L3-L4 level. AP performed fusion surgery at all three levels to repair the fissures. AP performed a second surgery about five months later to- correct a problem with the placement of the cage at the L5-S1. According to AP’s testimony, the cage at that level had subsided into the vertebral body as a result of the nature of tissue and bone encountered at that level. Dr. Nunley, the subsequent treating physician who saw W.H. about one year later, testified that W.H. had been treated for a lengthy time for infection after the second operation. Dr, Nunley conducted tests which* showed thé cage- at the L5-S1 was actually placed into the vertebral body and did not subside into it. After viewing the CT scans and fluoroscope from the second surgery, Dr. Nunley concluded that AP drove the previous cage through the vertebral body into a position- that could cause great harm. Dr. Nunley also believed that the cause of the infection and some of the pain experienced by this patient was due to the misplaced screws at L5-S1. To alleviate these problems, Dr. Nunley surgically removed the screws. Dr. Nunley was of the opinion that the misplacement of the cage, which was clearly shown on post-operation imaging, was a breach of the standard of care.

haDr. Ramos acknowledged that the cage was partially inside the vertebral body, and that the original cage was moved a:bit in the second operation. However,- ■ Dr. Ramos disagreed that AP breached the standard of care in the treatment of W.H.

8.) K.F.

When K.F. went to AP, he had previously received a prior micro-discectomy at L5-S1. AP ordered a discogram which revealed intense concordant pain at level L3-L4,-but no pain at L5-S1, AP performed a TLIP at L3-L4. When the pain did not subside after the surgery and several pain injections, K.F. sought a second opinion from Dr. Nunley. Dr. Nunley reviewed the inter-operative studies and concluded that the cage was only halfway in the disc space. Dr. Nunley performed surgery on this patient' and found no fusion at the site of Aps surgery about one year before.

In K.F.’s case, the medical review panel found AP failed to meet the applicable standard of care in the failure to remove sufficient disc material, failure to schedule sufficient follow-up visits considering the neurological deficits, and failure to inform the patient of the misplacement of the cage. Dr. Ramos disagreed with the panel’s findings.

9.) S.E.

S.E,, a 24 year-old woman, suffered a fracture at the L2 level in a fall, Ten days after the fall, AP performed kyphoplasty on S.E. AP testified that this option would give S.E. immediate relief from the pain, whereas conservative treatment with a back brace would take months. In kypho-plasty, radiopaque cement is injected into the affected vertebra using thoracoscopy to guide the surgeon. In S.E. case, a subsequent MRI showed radiopaque cement leaking into S.E.’s veins from | uthe site of the injection all the way up to the inferior vena cave. There' is expert testimony to indicate that this is not an abnormal occurrence with this procedure. However, the condition must be documented in the patient’s record; and further, a thoracoscopy of the chest area to document that there was no cement in that area should be done. AP did neither. There was also expert testimony questioning the adequacy of the consent form.

The Board found that, while the surgery was performed in a manner consistent with the- standard of care, the failure to record the extensive extravasation in the notes and the decision to perform this surgery on a 24 year-old without considering, conservative treatment was a breach of the standard of care,

10.) P.P.-

P.P,, an elderly patient with chronic back pain went to AP for treatment. She was diagnosed with a large mass at L2 that was in the epidural space, encasing the nerves and eating away at the -bone; AP performed a kyphoplasty on P.P. at-the T4 and L2 levels before the patient began radiation for treatment of the tumor. Experts testified that, while this procedure can be appropriate for treating fractures in the spine from malignancies, in this case there was nothing to keep the cement in place because of the absence of bone. Dr. Wojak testified that the danger is that the cement could push the tumor into the canal and potentially cause problems with the nerves, leading to possible loss of bowel and bladder control, or even paralysis. In short, a compression fracture in this patient could not be repaired because there was no bone left to repair. As with S.E, there were issues raised concerning the sufficiency of the consent form.

After the surgery, P.P. complained of leg weakness consistent with - cord compression and numbness from the waist down. Post-operative tests showed the | ^cement did not stay within the vertebral body; however, this fact is not documented in the operative report.

( 10.) M.S.

M.S. sought treatment after being diagnosed with a large acoustic neuroma to the brain stem. AP considered M.S, a candidate for the Gamma Knife. AP testified that he removed as much of the tumor as possible without affecting the facial nerve. M.S. consulted Dr. Nanda about 4 months after the surgery. Dr. Nanda testified that the tumor was too large to be surgically removed with a Gamma Knife. He was of the opinion that a tumor this size must be de-bulked surgically. He stated that an MRI showed a minimal amount of the tumor was removed by AP and he found no interim or post-op MRI conducted by AP to check the results of the use of the Gamma Knife. After the surgery, M.S. reported new neurological complaints that he had no taste sensation on the left side and no coordinátion on the right side. Dr. Nan-da opined that AP should have ordered an MRI to evaluate these new symptoms.

There was also testimony from experts who were of the opinion that the surgery was not performed in a negligent manner and that AP’s post-operative care met the standard of care.

With M.S. as with some of the other patients in this analysis, the Board found AP’s post-operative care to be below the standard of care.

After the extensive hearing eliciting all of the above discussed evidence, the Board’s findings were that there were several incidents in which AP recommended inappropriate surgery, failed to perform surgery in a technically competent manner, misplaced the cage after inadequate decompression, failed to remove adequate disc material to promote fusion, failed to recognize misplaced cages after surgery, | iflfailed to disclose complications to the patient, failed to schedule enough followup appointments, failed to properly evaluate post-op complaints, failed to keep adequate medical records, failed to record complications of surgery in medical records, and failed to address significant post-op complications in follow-up care.

In an extensive decision addressing each of the patients individually, the Board revoked AP’s license to practice medicine.

DISCUSSION

The practice of medicine is not a natural or absolute right of individuals. There is no property right to engage in the practice of medicine. The right to practice medicine is a right granted on condition. The state has the power to regulate the practice of medicine, and to establish and enforce standards of conduct relative to the health of its citizens. It is well established that the state has a legitimate concern for maintaining high standards of professional conduct in the practice of medicine. Recognizing that the practice of medicine is a privilege granted by the legislature, the state declared that,

.the state of Louisiana deems it necessary as a matter of policy in the interests of public health, safety, and welfare to provide laws and provisions covering the granting of that privilege and its subsequent use, control, and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized, and unqualified practice of medicine and from unprofessional conduct of persons licensed to practice medicine....’

|17To meet this objective the Louisiana State Board of Medical Examiners was established by La. R.S. 37:1268.

Review of a decision of an administrative body begins in the district court. A party aggrieved by a final agency decision in an adjudication’proceeding is entitled to have that decision reviewed initially by the district court of the parish in which the agency is located. “The general principle governing the review of the Board’s decision by the district court is that, if the evidence, as reasonably interpreted, supports the agency’s determinations, then the agency’s orders are accorded great weight and will not be reversed or modified in the -absence of a clear showing that the administrative action is arbitrary and capricious.” “A reviewing court should not set aside an administrative agency’s decision to impose a particular sanction unless that decision can be characterized as arbitrary, capricious, or an, abuse of discretion.”

Appeal of a district court’s decision on review of the Board’s decision can be made to' the appropriate appellate court as in other civil cases. “When an appellate court reviews the district court’s judgment, no deference is owed by the appellate court to the district court’s fact findings or legal conclusions, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal.” Thus, an appellate court sitting in review of h san administrative agency reviews the findings and ultimate decision of the administrative agency and not the decision of the district court.

“The exclusive grounds,upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G) of the Administrative Procedure Act (“APA”).” La. R.S. 49:964(G) provides that a court can reverse an agency’s decision if the appellant’s substantial rights have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1). In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or,

(6) Not supported and sustainable by a preponderance of evidence as determined by the. reviewing court.

The APA further provides that “[t]he agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.” La. R.S. 49:956(3). ;

In the application of this rule, the' court shall make its own evaluation of the record reviewed in its entirety upon judicial review. “Where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of |13demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues,”

Although a review of the district court’s ruling is not mandated, out of an abundance of caution, that ruling was thoroughly reviewed by this Court as is reflected in this opinion. Upon review, we disagree with the district court that the Board conducted a fundamentally unfair hearing.

In the matter before us, the district court found the “totality of the improper actions of the Board resulted in a hearing conducted in violation of AP’s constitutional due process rights, made upon unlawful procedure and clearly arbitrary and characterized by an abuse of discretion.” However, the district court did not reverse or modify the Board’s decision to revoke AP’s license to practice medicine. Instead the district court remanded this matter to the Board for further proceedings. The district court agreed with AP that the hearing of the Board was not fundamentally fair.

In its reasons for judgment, the district court lists several improper and/or unlawful actions of the Board used to support the decision. The first relates to the initial basis for the inquiry into AP’s competence in 2010. The court reasoned that, because the Board considered the Interim Consent Order, it should have allowed AP to present evidence to show that the basis of the initial, complaint that led to the consent order was inaccurate.

We disagree with the trial court that further inquiry into the initial complaints against AP is necessary for fundamental fairness. AP was well aware of the allegations against him that led up ⅝> his consent -to refrain from performing 120the surgical procedure since 2010, and had ample opportunity to present evidence at the hearing to combat all allegations against him.

Next, the trial court found that'the hearing officer “cut off’ AP’s attempt to qualify Dr. Robert Lieberson as an expert in minimally invasive TLIF surgery sinee he had only performed one procedure. The record of the Board does not support this finding. AP’s counsel was given the opportunity to question Dr. Lieberson regarding his education, training,- experience, teaching experience, publications, presentations at national meetings, as well as his consulting experience. Although, the hearing officer did not accept Dr. Lieberson as an expert in TLIF surgery since he had only performed one such procedure, the doctor was allowed to testify as an expert in general neurosurgery.

The district court took issue with the reference in the Board’s decision to Dr. Anil Nanda’s characterization of AP’s actions as “moral blindness”. This comment was cited by the Board in its consideration whether AP’s post-operative care met the standard of care.

It is clear from the Board’s decision that AP’s post-operative care of his patients was of grave concern. The record of the administrative hearing shows sufficient evidence for. that concern.- There were several instances in which AP failed to assess and/or treat patients’ post-op complaints. There were also instances in which AP failed to inform his patients that post-op tests revealed a problem with the surgery. On some occasions, information given to patients was directly opposite results shown by the post-op tests. AP assured some patients that everything was normal on the tests, when in fact the tests showed misplaced or Immigrated cages. Testimony from doctors who treated AP’s patients after the TLIF showed that some of AP’s patients required secondary surgeries to repair or mitigate the damage doné in the TLIF. For some patients, the damage could not be repaired.

The experts who testified acknowledged that there are always risks in surgical procedures, and in this particular surgery there is a possibility that the cage could migrate out of the space created for it. However, this is readily discoverable by post-op tests, and must be reported to the patient. Given AP’s penchant for misrepresenting the post-op facts to his patients, we do not find Dr. Nanda’s description of AP’s behavior as “moral blindness” to be inaccurate or unfair.

• Other reasons cited by the district court for its finding that the overall process of the Board was unfair to AP include the concern that most of the experts called by the Board were direct economic competitors. Considering AP’s practice and area of expertise, it, is not surprising that physicians who would have the most knowledge of local accepted standards of practice would also be economic competitors. However, the hearing officer addressed this concern in the proceeding, and was satisfied that the testimony of the physicians was not tainted by any, desire for economic gain. The hearing officer also considered AP’s motion for mistrial relating to a comment overheard by one of the doctors on the panel, in which he implied hearing AP’s testimony was unnecessary. The hearing officer denied that motion after assurance from the doctor that the comment was not made seriously and that he would fairly consider all of the evidence before making a decision.

As previously stated our review must afford considerable latitude to the decision of the Board. We must start with the presumption that the proceedings 12aand decision of the Board is legitimate, The burden is on the, appellant to demonstrate the grounds of reversal or modification. We do not find AP has met this burden.

The record of the Board’s proceedings in this matter is extensive and the evaluation of the evidence presented to the Board and reflected in the Decision and Order withstands our judicial review. Contrary to the district court’s findings and the representations in AP’s brief to this. Court, we find the Board conducted a fair and thorough investigation and hearing before making the determination to revoke AP’s license to practice medicine. We find no merit in AP’s allegations that he was unfairly treated by the Board or that there were any violations of his constitutional rights. Further, we do not find any improper actions or unlawful procedures in the Board’s hearings that amoúnt to a clearly arbitrary or abusive revocation, of AP’s medical license. Nor do we find there is any need to remand this matter to the Board for additional proceedings. Accordingly, we reverse the ruling of the district court and reinstate the decision and order of the Louisiana State Board of Medical Examiners.

REVERSED; DECISION OF THE LOUISIANA STATE BOARD OF MEDICAL EXAMINERS REINSTATED

LOBRANO, J., CONCURS IN THE RESULT.

      . The patients will be identified by initials only to protect their privacy,

      . Louisiana State Board of Medical Examiners v. Fife, 1927, 162 La. 681, 685, 111 So. 58, affirmed 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324.

      . Id.

      . Id.

      . Barsky v. Bd. of Regents of Univ., 347 U.S. 442, 452, 74 S.Ct. 650, 656, 98, 98 L.Ed. 829 L.Ed.829 (1954).

      . Louisiana State Bd. of Medical Examiners v. Fife, supra 162 La. at 685, 111 So. 58.

      . La. R.S. 37:1261.

      . La. R.S. 49:964(A)(1) and (B).

      . Mayeaux’s Food & Sporting Goods, Inc. v. State, Dep’t of Health & Human Res., 470 So.2d 469, 471 (La. Ct. App. 1985).

      . Clark v. Louisiana State Racing Com'n, 2012-1049 (La. App. 4 Cir. 12/12/12), 104 So.3d 820, 827, writ denied, 2013-0386 (La. 4/1/13), 110 So.3d 589.

      . La. R.S. 49:965.

      . Bourgeois v. Louisiana State Racing Comm’n, 10-0573 (La.App. 4 Cir. 11/12/10), 51 So.3d 851, 856 (quoting Smith v. State, Dep’t of Health and Hospitals, 39,368 (La.App.2d Cir.03/02/05), 895 So.2d 735, 739).

      . Armstrong v. Louisiana State Bd. of Medical Examiners, 03-1241 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 837-38.

      . Cathey v. Louisiana State Racing Comm’n, 2003-0923 (La. App. 4 Cir. 9/24/03), 855 So.2d 414, 418, writ denied, 2003-3153 (La. 1/30/04), 865 So.2d 86. See also La. R.S. 49:964(G).

      . Holladay v. Louisiana State Board of Medical Examiners, 96-1740 (La.App. 4 Cir. 2/19/97), 689 So.2d 718, writ denied, 97-0730 (La. 5/1/97), 693 So.2d 740.

      . id.