author: GRAVOIS, J.

text:
    STATE of Louisiana v. Akando DUCKSWORTH
    NO. 17-KA-35
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser
    COUNSEL FOR DEFENDANT/APPELLANT, AKANDO DUCKSWORTH, Holli A. Herrle-Castillo
    . Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

| ^Defendant, Akando Ducksworth, appeals his conviction and sentence for attempted manslaughter, a violation of La. R.S. 14:27 and 14:31. On appeal, defendant argues that the evidence was insufficient to establish that he had specific intent to Mil the victim, and that the appropriate verdict is aggravated battery. He also argues that his sentence of twelve years imprisonment at hard labor is unconstitutionally excessive. For the following reasons, we affirm defendant’s conviction and sentence and remand the matter for correction of the Uniform Commitment Order, as noted herein.

PROCEDURAL HISTORY

On November 10, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Akando Ducksworth, with one count of attempted second degree murder of Joshua Hardin, in violation of La. R.S. 14:27 and 14:30.1. Defendant pleaded not guilty at his arraignment on December 11, 2015.

The matter proceeded to trial before a twelve-person jury on August 30, 2016. The following day, the jury returned a verdict of guilty of the' responsive verdict of attempted manslaughter.

On September 6, 2016, the trial court denied defendant’s motion for a new trial and post-verdict judgment of acquittal, and after a waiver of delays, sentenced defendant to twelve years imprisonment at hard labor. Immediately after sentencing, defendant filed a motion for an appeal, which the trial court granted that same date: Defendant now appeal's, arguing first that the evidence was insufficient to support his conviction of attempted manslaughter, but instead supports a verdict of aggravated battery, and second, that his sentence was excessive.

| .FACTS

At the time of trial, defendant was thirty-three years old, had a bachelor’s degree from Mississippi State University and a master’s degree in sports administration, and had served eight years in the Mississippi National Guard. In this matter, he was convicted of attacking Joshua Hardin with a machete in a bar fight. Defendant testified that as of August 11, 2015 (the date of the incident in question), he had been in a relationship with Michelle Marsh for two and one-half years. That night, after he had been drinking and watching football most of the day, Ms. Marsh suggested that they go out to JR’s Sports Bar in Metairie and meet her friend, Amanda Golden, who was also friends with the victim, Joshua Hardin. The victim had been scheduled to work at JR’s that evening, but when he arrived, he .was informed that they were overstaffed; he was given the night off. While at JR’s, the victim met up with Ms. Golden. Shortly thereafter, Ms. Marsh and defendant arrived at JR’s and Ms. Marsh introduced the victim to defendant. Unbeknownst to .defendant at that time, the victim and Ms. Marsh had been having a sexual relationship for three years, the entire length of time that Ms. Marsh had been dating defendant.

After a few drinks, the four continued on to Daiquiris and Creams, a nearby bar on Veterans Boulevard. While there, defendant attempted to dance with Ms. Marsh, who became annoyed and “stormed off,” leaving the bar. The victim then followed Ms. Marsh outside to inquire as to whether she was all right, with defendant following close behind.

Once outside, defendant asked “what’s going on?” The victim testified that at this point, there was no arguing or yelling taking place. The men spoke for a few minutes before Ms. Golden pulled Ms. Marsh away from them, as things began to grow louder and more “heated.” Defendant then told the-victim “hell, no, I ayou’re not going to talk to my girl.” The victim responded by shoving defendant and telling him to “back up off’ of him because it looked like “he was getting a lot' more aggravatéd than what it was before.”

Defendant remembered the conversation differently, however, recalling that'when he went outside to check on Ms. Marsh, he told the victim that he was going to take Ms!’ Marsh and leave, at which time the victim told him that Ms. Marsh was going to stay at the bar with him. Defendant then told the victim that he could not tell his girlfriend where to go. According to defendant, the victim then pushed defendant, calling him a n****r and telling him he would “take his woman” if he wanted to.

Defendant then ran off around the corner of the bar, and the others went back inside. The victim believed the altercation had ended, but a minute or so later, defendant ran back into the bar — while the victim’s back was turned — with a machete, “swinging” at him with “full force.” The victim testified that he ducked and put his hand up to grab the'machete, at which time defendant swung it, severing his right thumb. The two men ended up in a “bear hug,” as the victim feared that defendant would keep cutting him if there was any space between them, causing the victim to also suffer lacerations to his head and back.

Ms. Golden and Traci Parker, a friend of the victim, repeatedly hit defendant over the head before the machete was eventually seized from his. control. Defendant then fled the scene. The bartender, Jeanine Daigle, placed, the machete behind the bar and called the police. The victim testified that as a result of the incident, he lost the use of his thumb and has several scars.

The incident was Caught on the bar’s video surveillance, which was playéd for the jury. The video corroborated the victim’s account of the events, which 1¿showed defendant and the victim outside of the bar engaged in a conversation when it appears things began to escalate, at which point the victim shoved defendant prompting him to run off.towards the parking lot. After defendant ran off, the victim reentered the bar, and a few seconds later, defendant. appeared running inside the bar, swinging a machete from above his head, as if in a chopping motion, down towards the victim with what appears to be significant force. The altercation continued between the two men, in what appears to be a “bear hug,” while other patrons in the bar hit defendant in an attempt to seize his weapon and neutralize the situation.

The 9-1-1 call placed by the bartender, Ms. Daigle, was also played for the jury. On the .recording, a frantic Ms. Daigle recounts what she had just witnessed, explaining that two men were involved in a fight, one had a machete, and the other one was “all cut up.” In the background, screams can be heard as- she tells the dispatcher that defendant had fled and “there is blood everywhere,” noting that the victim sustained a severed finger that had been put on ice. She further explained to the dispatcher that there were approximately thirty people in the bar at the time of the incident and that she had “never seen anything like this before,” recalling that the machete was “huge” and as long as her arm.

. Ms. Parker testified that at first the conversation between defendant and the victim, while outside, was not heated, but that it began to escalate. It was at that point that she went over to the victim in an attempt to defuse the situation when defendant ran off. Ms. Parker believed that defendant had left to get a gun, so she warned the victim that he ought to leave. Ms. Parker and the victim were walking back into the bar when defendant ran inside straight for the victim holding a machete in his hand. Ms. Parker testified that she tried to warn the victim, who then turned around to defend himself, putting defendant in a “bear hug,” while she |Battempted to break the fight up by punching defendant, from which she ultimately sustained a broken hand.

Deputy Cleo Bridges of the Jefferson Parish Sheriffs- Office was dispatched to Daiquiris and Creams, and while en route, encountered defendant approximately a block and a half from the bar. Defendant had in his possession the sleeve for the machete. He advised the officers that he had been involved in an altercation at the bar down the street. Defendant was then transported to the hospital for cuts he had sustained during the altercation.

Defendant admitted that he cut the victim once with the machete, but denied that he was trying to kill him; however, he stated that when he went to retrieve his machete, he was angry and desired to hurt the victim. Photographic evidence of the injuries the victim sustained to his hand, back,'and head were introduced into evidence. The photographs depict a severed right thumb and extensive bleeding from the lacerations on the victim’s back and head.

ASSIGNMENT OF ERROR ' NUMBER ONE

Sufficiency of the evidence

In his ’ first assignment of error, defendant argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. He maintains that his motion should have been granted because the State failed to prove that he had the specific intent to kill, and thus, could not establish the elements necessary to sustain an attempted manslaughter conviction, and likewise, to establish the charged offense of attempted second degree murder. Defendant also contends the State presented no evidence that he acted in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his Rself-control and cool reflection that would have warranted an attempted manslaughter conviction. Thus, defendant concludes, because the State .only proved the elements of an aggravated battery offense, the trial court should have modified the verdict.

The proper procedural vehicle for raising the issue of sufficiency of the evidence is a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 288, n.18, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154 (citing State v. Allen, 440 So.2d 1330, 1332 (La. 1983)). Here, defendant raises the same sufficiency grounds on appeal as he did for the basis of his motion for post-verdict judgment of acquittal denied by the trial court.

The appropriate standard of review for determining 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., 443 U.S. 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, 7writ 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. Wooten, 738 So.2d at 675.

In reviewing a denial of a motion for post-verdict judgment of acquittal, an appellate court in Louisiana is controlled by the standards enunciated in Jackson, supra, for reviewing sufficiency of the evidence to support a conviction. State v. Trice, 14-636 (La. App. 5 Cir. 12/16/14), 167 So.3d 89, 92.

Defendant was charged with attempted second degree murder, in violation of La, R.S. 14:27 and 14:30.1, and was convicted of the lesser offense of attempted manslaughter, in violation of La. R.S. 14:27 and 14:31.

In order to convict a defendant of attempted second degree murder, the State must prove beyond a reasonable doubt that the defendant had the specific intent to kill. State v. Bishop, 01-2548 (La. 1/14/03), 885 So.2d 434, 437; State v. Logan, 45,136 (La. App. 2 Cir. 4/14/10), 34 So.3d 528, 535, writ denied, 10-1099 (La. 11/5/10), 50 So.3d 812. Proof of specific intent to inflict great bodily harm is insufficient. Logan, supra.

The offense of manslaughter is defined as a homicide that would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. Although specific intent to kill is not necessary for a conviction of manslaughter, a specific intent to kill is required for a conviction of attempted manslaughter. Logan, supra. To support a conviction for attempted manslaúghter, the State must prove that the defendant specifically intended to kill the victim' and committed an overt act in furtherance of 8that goal. State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, 135, writ denied, 12-2667 (La. 5/24/13), 116 So.3d 659.

Specific intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); Glover, supra. Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Trim, 12-115 (La. App. 5 Cir. 10/16/12), 107 So.3d 656, 660, writ denied, 12-2488 (La. 4/19/13), 111 So.3d 1030 (citing State v. Girod, 94-853 (La. App. 5 Cir. 3/15/95), 653 So.2d 664, 668). Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. Trim, 107 So.3d at 660 (citing State v. Knight, 09-359 (La. App. 5 Cir. 2/9/10), 34 So.3d 307, 317, writ denied, 10-2444 (La. 10/21/11), 73 So.3d 376); State v. Pittman, 11-741 (La. App. 4 Cir. 2/29/12), 85 So.3d 782, 785, writ denied, 12-680 (La. 9/14/12), 97 So.3d 1016. Specific intent to kill may also be inferred from the extent and severity of the victim’s injuries. State v. Lewis, 97-160 (La. App. 5 Cir. 7/29/97), 698 So.2d 456, 459, writ denied, 97-2381 (La. 3/27/98), 716 So.2d 881.

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended, and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). Mere preparation to commit a crime shall not be sufficient to constitute an attempt, but lying in wait with' a dangerous weapon with the intent to commit a crime, or searching for the intended victim with 'a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. La. R.S. 14:27(B)(1).

bWhether 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. Trim, 107 So.3d at 660 (citing State v. Gonzalez, 07-449 (La. App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-0228 (La. 9/19/08), 992 So.2d 949).

Defendant does not dispute that he committed a criminal offense by striking the victim with a machete, but he argues that the State failed to prove he had the specific intent to kill the victim and disputes that the offense he committed (which he claims to be an aggravated battery) was done in sudden passion or heat of blood caused by sufficient provocation to deprive an average person of his self-control and cool reflection.

If there is sufficient evidence to convict a defendant of a greater offense which includes the offense for which defendant was convicted, the evidence will necessarily and automatically, because of our statutory system of responsive verdicts, support the conviction for the lesser offense, as long as the defendant did not object to the inclusion of this-lesser included offense. State v. Schrader, 518 So.2d 1024, 1034 (La. 1988); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La. 1982); State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

In the present case, defendant did not object to the inclusion of attempted manslaughter as a lesser included offense; thus, because as shown below the evidence adduced at trial establishes defendant’s specific intent to kill the victim, the evidence was sufficient to convict defendant of the greater offense of attempted second degree murder and is therefore supportive of the lesser included offense of attempted manslaughter.

In State v. Dean, 528 So.2d 679 (La. App. 2 Cir. 1988), the defendant was charged with attempted second degree murder and found guilty by. a jury of attempted manslaughter. From the evidence introduced at trial, it was established hnthat the victim and two frierjds were walking home from school when they were approached by the defendant who asked the victim if he (the victim) remembered him (the defendant). The victim* answered in the affirmative and no other words were spoken"; but the two “faced off’ momentarily. The victim and his friends" resumed their walk home and had gone approximately fifty yards when the victim heard the defendant approaching from behind and began to turn. Before the victim could complete the turn, the defendant stabbed him in the upper back and ran away. One of the victim’s friends removed the knife from the victim’s back and called the police. It was later learned' that the night before the stabbing incident, the defendant and the victim had gotten into an, altercation during which the victim struck the defendant with a. stick, On appeal, the defendant argued that the evidence was insufficient to convince reasonable jurors beyond a reasonable doubt of his specific intent to kill the victim. The court of appeal in Dean found that evidence of the instrumentality used and the severity of the injury inflicted on the victim could lead á reasonable juror to conclude that the defendant had the specific intent to kill when he approached, the victim from behind and plunged a knife into his back. Id. at 682-83.

Also, in State v. Cortez, 48,319 (La. App. 2 Cir. 8/7/13), 122 So.3d 588, the defendant was involved in a barroom confrontation with Bo Ballard, one of several victims. The two men took their dispute outside where, after punching the defendant, Ballard went back inside the bar. Approximately fifteen to twenty minutes later, the defendant returned to the'bar armed with a knife. Four patrons in the bar were stabbed and/or cut as they tried to disarm the defendant. The melee finally ended when Ballard approached" the defendant from behind and knocked him unconscious. The defendant was charged in an amended bill of information with attempted second degree murder of Ballard and several other counts for the crimes committed on the other bar patrons. Ultimately, the charge of attempted In second degree murder of Ballard resulted in a conviction for attempted manslaughter. Ón appeal, the defendant argued that the evidence was insufficient to convict him of attempted manslaughter because the State failed to prove that he had the requisite specific intent to kill Ballard.

In CoHez, while Ballard did not testify at trial, the court of appeal considered evidence from witnesses who testified that after the altercation between the defendant and Ballard outside the bar, the defendant told Ballard twice, “[yjou- wait right here. I’ll be right back.” The evidence further established that the defendant returned with a knife looking for Ballard as he “relentlessly fought his way through the men who tried to stop and disarm him.” The bar’s surveillance video further corroborated the witnesses’ testimony, making it “readily apparent from his movements that he was looking about the. bar for someone during the free-for-all that followed.” The court further noted that instead of retreating and fleeing after encountering resistance in his path toward Ballard, the defendant continued to fight and stab at the men thwarting his efforts to get within striking distance of Ballard.

In finding the evidence presented at trial sufficient to prove the defendant had the specific intent to kill Ballard and in finding he committed an overt act in furtherance of that goal, the Cortez court noted that the overwhelming consensus among the witnesses was that the defendant’s intended target was Ballard. Thus, the court of appeal maintained that while -the defendant’s . actions against his other victims constituted crimes in and of themselves, the sheer ferocity of his conduct against the people in his path was also highly indicative of the deadly intent he harbored toward Ballard, the actual object of his aggression. Id. at 593-94.

In the instant matter, at trial, evidence showed that defendant and the victim were having a heated conversation over Ms. Marsh which ultimately resulted in the victim forcefully shoving defendant. Defendant, after being shoved by the victim, ran off towards the parking lot and retrieved a machete from his car. These facts | iacouIfl lead a reasonable juror to conclude that the act that followed was one committed with the specific intent to kill.

With machete in hand, defendant ran back into the bar directly towards the victim, whose back was partially turned, and began swinging his machete at the victim with such force that it severed the victim’s thumb. While attempting to defend himself, the victim also suffered lacerations to his head and back as he placed defendant in a “bear hug” for fear that defendant would “keep cutting” him. The chaos of the scene was recorded oh video surveillance and on the 9-1-1 phone call made by the bartender, ■ Ms. Daigle, who advised-the dispatcher of the alarming size of the machete and that there was “blood everywhere.” Defendant, who was relentless in his advances towards the victim despite being struck on the head numerous times by bar patrons attempting to thwart the attack, some sustaining injuries themselves, eventually fled the scene only once his machete was seized from his possession. Photographs from the night in question also depicted the severity of the attack from which the victim sustained lacerations-resulting-in scarring and the loss, of the use of his thumb.

Although the State did not offer any testimony regarding statements "made before the attack that defendant intended to kill the victim, the foregoing eyiderice shows that a reasonable trier of fact could have concluded that defendant had the specific intent to kill the victim when he ran towards the victim from behind, forcefully swinging a large machéte. Accordingly, after considering the evidence presented at trial in the light most favorable to the prosecution, we find that the jury could have reasonably concluded that the State proved that defendant had the specific intent to kill the victim and that he committed an overt act in furtherahce of that goal, thereby supporting his conviction for, attempted manslaughter. We | igfurther conclude that the trial court did not err in denying defendant’s motion for post-verdict judgment of acquittal. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Excessiveness of sentence

In his second assigned error, defendant contends that his twelve-year sentence is unconstitutionally excessive. He asserts that based on his personal background, lack of criminal history, the circumstances of the “battery,” and the sentences imposed for other defendants convicted of the same crime, the twelve-year sentence is too severe and out of proportion to the offense.

Prior to defendant’s sentencing on September 6, 2016, the court reviewed a victim impact statement supplied by the State and several letters from family members and friends written on behalf of defendant. Within the victim’s letter, he explained that because of the attack, he now suffers from anxiety, a sleep disorder, depression, and post-traumatic stress disorder (“PTSD.”) He further wrote that despite physical therapy, his physicians have informed him that he will never be able to open his hand or bend his thumb again. This disability, he explained, has had a significant impact on his personal and professional life, as he can no longer do the activities he once could. After reading the letters, the court also listened to a statement made by defendant during which he took full responsibility for his actions, apologized, and asked for forgiveness. The court then sentenced defendant, stating as follows:

Let the Court start by saying, as I have previously said, I’ve read the statement of Josh Hardin, the victim, in this case. I’ve heard Mr. Ducksworth’s testimony and reviewed the letters from Lenora Williams, Dorothy Thomas, Michelle Marsh, Jessica Marsh, Greg Bray, and that’s it. In addition to that, I’m going to put those in the record.
The Court has also reviewed the sentencing guidelines of Louisiana Code of Criminal Procedure, Article, 894.1. While there 114are a number of factors to be taken into consideration and mitigation of this crime, particularly the defendant’s young age, the defendant’s success from an educational point of view, and the defendant’s military history, and while those are considered in mitigation, they are also frustrating to this Court because someone who has accomplished so much of their life-to have come to the person that I viewed on the video, not one, not two, but three strikes going for more to Mr. Hardin. The Court finds it very difficult to wrap my head around the fact that those are one in the same persons.
The Court has also reviewed Article 894.1, as I said, for mitigation, and also in attempt to confect an appropriate sentence.
Based on everything I have reviewed, especially the trial testimony of the defendant and the victim and the videotape, the Court is going to impose 12 years at hard labor in the Department of Corrections.

Defendant now contests his twelve-year sentence, alleging it to be unconstitutionally excessive and maintains that the trial court failed to properly consider the nature of the case and his background in imposing the sentence.

Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for unconstitutional excessiveness only. State v. Bolden, 04-1000 (La. App. 5 Cir. 3/1/05), 901 So.2d 445, 447, writ denied, 05-2030 (La. 4/28/06), 927 So.2d 279. See also La. C.Cr.P. art. 881.1(E). In this case, defendant did not orally object to his sentence as excessive or file a motion to reconsider sentence. Accordingly, the issue for our review is limited to whether defendant’s sentence is unconstitutionally excessive. See State v. Alvarez, 11-223 (La. App. 5 Cir. 11/15/11), 78 So.3d 265, 268, writ denied, 11-2767 (La. 4/13/12), 85 So.3d 1245.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit'the imposition of excessive punishment. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen, 958 15So.2d at 64. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Taylor, 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56).

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Nguyen, 958 So.2d at 64. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy, 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840 So.2d 1213.

At the time of the charged offense, the penalty for attempted manslaughter under La. R.S. 14:27 and 14:31 was not more than twenty years imprisonment. Thus, defendant’s mid-range twelve-year sentence falls well below the maximum penalty the trial court could have imposed.

The review of sentences under La. Const, art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Williams, 07-111116 (La. 12/7/07), 969 So.2d 1251, 1252 (per curiam). Further, when an appellate court is reviewing a sentence, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461, 462 (per curiam).

In the instant case, the trial court took into consideration the nature and background of this thirty-three-year-old defendant. The court read numerous letters from family and friends touting his accomplishments and admirable qualities. The' court further listened to testimony regarding defendant’s educational success and military background, as .well as his lack of a criminal record. In fact, such mitigating factors were “frustrating” to the court when viewed in light of defendant’s criminal conduct witnessed by the trial court on the video surveillance from the night of the crime, depicting the force by which the brutal attack was committed.

' The trial court also sat through the trial of this matter in which witness testimony established that after a heated argument outside of a bar, defendant ran to retrieve a machete, as long as-the length of an arm, from his car to “hurt” the victim. Defendant then entered the bar, and while the victim’s back was turned, ran towards the victim “swinging” at him with “full force.” Pictures of the large machete and the injuries the victim sustained depicted a severed thumb and several lacerations to the victim’s head and back. The testimony further established that the victim attempted to defend himself while other bar patrons beat defendant sustaining injuries themselves in order to pry the machete from defendant’s fingers before defendant fled. The 9-1-1 call also confirmed the chaos in the crowded bar full of innocent bystanders as screams.were heard in the background during the attack in which “blood [was] everywhere.”

JjjMoreover, in his victim impact statement, the victim told the court of the lasting effects he has suffered as a result of the attack, including depression, anxiety, PTSD, and sleep disturbances. He recounted his countless physical therapy and psychiatry sessions, as well as the scarring he has sustained from the lacerations on his back, and the loss of the use of his hand which prohibits him from engaging. in his past hobbies and has cost him his employment.

In similar cases, courts have upheld comparable or greater sentences. In State v. Solomon, 461 So.2d 548 (La. App. 3 Cir. 1984), the court of appeal upheld a near maximum sentence for attempted manslaughter when the defendant, a first-time offender, stabbed the defenseless victim twice in the chest area causing him to suffer grave injuries. Also, in Dean, supra, the appellate court found the defendant’s mid-range sentence was not unconstitutionally excessive where the defendant stabbed the victim once in the upper back after which the victim was taken to the hospital where the wound was sutured, and he was sent home. Finally, in State v. Raev, 36,847 (La. App. 2 Cir. 3/5/03), 839 So.2d 1015, writ denied, 03-988 (La. 10/10/03), 855 So.2d 330, the Second Circuit found a twelve-year sentence for attempted manslaughter not to be unconstitutionally excessive where the evidence at trial showed the remorseful defendant, a first-time offender, stabbed the victim' in the throat with a letter opener and kicked the victim after she fell to the ground. In sentencing the defendant, the trial court noted the crime had caused a substantial economic loss to the victim and a. permanent physical scar,

While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594118So.2d 1, 3 (La. App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because-the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Based on the foregoing, we find that defendant’s twelve-year sentence is not unconstitutionally excessive. The record demonstrates that the trial court adequately considered defendant’s personal history and mitigating factors, and does not show an abuse of the trial court’s discretion in sentencing defendant. Thus, after consid: ering the circumstances of this case, defendant’s mid-range sentence is neither grossly disproportionate to the seriousness of the offense committed, nor shocking to the sense of justice. This assignment of error is without merit.

ERRORS PATENT REVIEW

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 matters merit attention.

. While the commitment indicates that defendant was advised by the trial court of the applicable prescriptive period for post-conviction relief, the transcript does not. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). It is well settled that if a trial court fails to provide such advice, 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. See State v. Neely, 08-707 (La. App. 5, Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La. 10/16/09), 19 So.3d 473. Accordingly, by means of |1Bthis opinion,, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, 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.

Also, there is a discrepancy between the State of Louisiana Uniform Commitment Order and the record in this case. The Uniform Commitment Order incorrectly provides that defendant was convicted of “14:27:30.1 Attempted Second Degree Murder.” While defendant was in fact charged with attempted second degree murder, he was ultimately found guilty of the lesser included offense of attempted manslaughter (La. R.S. 14:27 and 14:31). Accordingly, we remand the matter for correction of the Uniform Commitment Order to accurately reflect the crime for which defendant was convicted. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied, 14-0481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142).

CONCLUSION

. For the foregoing reasons, defendant’s conviction and sentence are affirmed. The matter is remanded for correction of the Uniform Commitment Order, as noted above.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      . At a restitution hearing held on January 5, 2017, the parties stipulated that restitution was owed to the victim, Joshua Hardin, in the amount of $166,488.76.

      . The victim testified that he was unaware Ms. Marsh was in a relationship with defendant,

      . A photograph of the machete was introduced into evidence. Defendant testified that he kept a machete in his car because Ms. ' Marsh had a stalker. ’ ‘

      .The court permitted the victim to show his scars to the jury.

      . Defendant told Deputy Daniel Whamond of the Jefferson Parish Sheriff’s Office that he and Ms. Marsh had gone on a double date with the victim and Ms. Golden. They first went to JR’s Sports Bar and then relocated to Daiquiris and Creams- on Veterans Boulevard. While there, Ms, March became upset with defendant and went outside on the patio where she was joined by the victim. Defendant followed the two. outside where an altercation with the victim ensued. Once the victim had gone back inside, defendant went to his véhicle and retrieved his máchete, ran back into the bar, approached the victim, and swung at him with his machete.

      . It is further noted that aggravated battery was -included on the jury verdict form as a responsive verdict. The jury was instructed regarding aggravated battery, and apparently rejected it as a responsive verdict.

      . The defendant in Solomon received a ten-year sentence at a time when the maximum sentence for attempted manslaughter was ten and one-half years.

      . The defendant in Dean received a five-year sentence at a time when the maximum sentence for attempted manslaughter was ten and one-half years.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Kerry J. REYNARD
    NO. 17-KA-375
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, KERRY J. REYNARD Bruce G. Whittaker
    Panel composed of'Judges Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   JOHNSON, J.

|, Defendant/Appellant, Kerry J. Rey-naud, appeals his convictions and sentences from the 24th Judicial District Court, Division “M”. For the following reasons, we affirm Defendant’s convictions and sentences and grant the motion to withdraw.

FACTS AND PROCEDURAL HISTORY

On February 26, 2015, Defendant and 20 other co-defendants were charged in a 30-count indictment for various acts of racketeering committed in furtherance of a narcotics distribution network on the West-bank of Jefferson Parish, operated by a street gang known by its members as the “Harvey Hustlers.” Specifically, Defendant was charged with racketeering, in violation of La. R.S. 15:1352 (count one), conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A) (count two), and conspiracy to distribute heroin and marijuana, in violation of La. R.S. 40:979 and La. R.S. 40:966(A) (count three). Defendant pleaded not guilty to the charged offenses at his arraignment on March 23, 2015. On August 21, 2015, Defendant filed a motion to suppress evidence and the following day, Defendant filed a motion to quash the indictment,

On February 16, 2016, Defendant withdrew his prior pleas of not guilty and pleaded guilty as charged. Because Defendant pleaded guilty, the facts were not fully developed at á trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

Kerry Reynard engaged in conduct to further the aims of an Enterprise by engaging in a pattern of racketeering activity and conspiring with members of . that Enterprise to distribute controlled dangerous substances, including cocaine, heroin' and marijuana. This conduct, which occurred between 2006 and 2015, included participating in the operation of a narcotics distribution network on the Westbank of Jefferson Parish wherein a violent street gang named by its members the “Harvey Hustlers” obtained controlled dangerous substances from 12associates and Enterprise members who transported the drugs into the Metropolitan New Orleans area,
The ranking members of the Harvey Hustlers then directed the conversion of these drugs into a saleable form, such as converting powder cocaine to crack cocaine, and provided the drugs to rank and file Harvey Hustlers who sold the drug product on the street for the profit of Enterprise members. This activity included all of them working on the streets of Scottsdale, on the side of each other, selling cocaine, heroin or marijuana.
Members of the Harvey Hustlers frequently identified themselves openly through items of jewelry and clothing containing a “HH” logo, tattoos containing phrases identified with the gang, social media posts, and YouTube videos.
Enterprise members and their associates sold, exchanged and otherwise transferred quantities of controlled dangerous substances to'street level end users in Jefferson Parish.

In accordance with the plea agreement, the court sentenced Defendant on count one (racketeering) to 20 years imprisonment at hard labor; count two (conspiracy to distribute cocaine) to 15 years imprisonment at hard labor; and count three (conspiracy to distribute heroin) to 20 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The court ordered that all of Defendant’s sentences be served concurrently.

Also on February 16, 2016, the State filed a habitual offender bill of information on count two, alleging Defendant to be a second felony offender, to which Defendant stipulated. The trial court vacated Defendant’s previous sentence, on count two and resentenced Defendant as a second felony offender, pursuant to La. R.S.. 15:529.1, to 20 years imprisonment at hard labor without the benefit of probation or suspension of sentence. On April 3, 2017, Defendant filed an application for post-conviction relief, seeking an out-of-time appeal, which was granted by the trial court on April 4, 2017. The instant appeal follows.

^ASSIGNMENTS OF ERROR

On appeal, Defendant seeks review of his convictions and sentences in conformity with the procedures outlined in State v. Jyles, 96-2669 (La. 12/12/97); 704 So.2d 241 (per curiam).

LAW AND ANALYSIS

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96); 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has made a conscientious and thorough review of the entire appellate record, including the procedural history and facts, and has not found any non-frivolous issues to raise on appeal.- Accordingly, appointed counsel requests permission to withdraw as counsel of record.

After receiving appellate counsel’s brief and motion to withdraw, this Court performed a full examination of all the appellate record to determine whether the appeal is frivolous in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97); 704 So.2d 241 (per curiam). Our independent, examination of the record in the instant case consisted of: (1) a review of the bill of information to ensure that Defendant, was , properly charged; (2) a review of all minute entries to. ensure that Defendant was present at all crucial states of the proceedings and that the convictions and sentences are legal; and (3) a review of all the transcripts to determine if any ruling provided an arguable basis for appeal. After review, we ñnd no non-frivolous issues with .any of Defendant’s convictions.

With regard to Defendant’s sentences, La. C.Cr.P. art. 881.2(A)(2) precludes^ defendant from seeking reyiew of a sentence imposed-in conformity with a plea agreement which was set forth in the record at the time of the. plea. State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05); 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art, 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams, 12-299 (La. App. 5 Cir 12/11/12); 106 So.3d 1068, 1076, writ denied, 13-0109 (La. 6/21/13); 118 So.3d 406. Here, Defendant’s original sentences and enhanced sentence were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Nevertheless, Defendant’s sentences fall within the sentencing ranges set forth in the statutes. See La. R.S. 15:1354(A); La. R.S. 40:979; La. R.S. 40:967(B)(4)(b); and La. R.S. 15:529.1. Moreover, Defendant’s plea agreement was beneficial to him in that he received approximate midrange sentences on counts one and three. Also, on his enhanced sentence, Defendant received a 20-year sentence, which was less than the 30-year maximum exposure.

Furthermore, the transcript reflects that the trial judge informed Defendant [ fithat if he stipulated to the habitual offender bill, his 20-year enhanced sentence on count two would be served without the benefit of probation or suspension of sentence. Afterward, the trial judge imposed the enhanced sentence without the benefit of probation or suspension of sentence.

La. R.S. 15:529.1(G) provides that an enhanced sentence shall be at hard labor without benefit of probation or suspension of ’ sentence. However, La. R.S. 40:967(B)(4)(b) required that the first two years of the sentence shall be without benefit of parole, probation, or suspension of sentence.

The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 are “those called for in the reference statute.” State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02); 821 So.2d 60, 79 n.24, writ denied, 02-1540 (La. 12/13/02); 831 So.2d 983. Because the underlying offense carries a parole restriction, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09); 20 So.3d 501, 509, writ denied, 09-2102 (La. 4/5/10); 31 So.3d 357. Therefore, the trial court erred by not restricting parole eligibility on Defendant’s enhanced sentence for the first two years.

La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. State v. Williams, 00-1725, (La. 11/28/01); 800 So.2d 790, 798-99. Thus, we find that no corrective action is required to specify that the first two years of Defendant’s sentence is to be served without benefit of parole. See State v. Young, 13-745 (La. App. 5 Cir. 4/9/14); 140 So.3d 136, 140 n.2, writ denied, 14-1002 (La. 12/8/14); 153 So.3d 439. We also find that the trial judge’s failure to specify that the first two years of his original sentence were to be served without the benefit of probation, parole, or suspension of sentence and the first two years of his enhanced | (¡sentence were to be served without benefit of parole did not affect the voluntariness of Defendant’s guilty plea or habitual offender stipulation.

In State v. Duncan, 16-493 (La. App. 5 Cir. 2/8/17); 213 So.3d 1247, 1253, this Court found that the trial judge’s failure to specify that the first two years of the habitual offender sentence were to be served without benefit of parole did not affect the voluntariness of the stipulation. In so finding, this Court cited State v. Harrell, 09-364 (La. App. 5 Cir. 5/11/10); 40 So.3d 311, writ denied, 10-1377 (La. 2/10/12); 80 So.3d 473, where the defendant contended that his plea on one of the counts was not knowing and voluntary because the trial court failed to advise him that the first five years of the sentence had to be served without the benefit of parole, probation, or suspension of sentence. In Harrell, this Court found that the trial court’s failure in this regard did not render the defendant’s guilty plea unknowing or involuntary. It noted that the trial court advised the defendant of his Boykin rights, that the defendant indicated his willingness to plead guilty throughout the plea colloquy, that the defendant acknowledged that he had discussed the guilty plea with his attorney and that he still desired to plead guilty, and that the defendant received a substantial benefit for pleading guilty.

In Duncan, this Court noted that the record reflected that the trial judge advised the defendant of his habitual offender rights, the defendant indicated his willingness to stipulate to the habitual offender bill, and the defendant acknowledged that he had discussed his stipulation with his attorney and that he still desired to stipulate to the habitual offender bill. Further, the defendant received a substantial benefit for stipulating to the habitual offender bill. Also, the record did not reflect that receiving the benefit of parole was crucial to his stipulation. This Court found that the trial judge’s failure to advise the defendant that the first two years of the sentence was to be served without benefit of parole 17did not render his stipulation to the habitual offender bill unknowing or involuntary. See Duncan, supra.

Likewise, in the instant matter, the record reflects that the trial court advised Defendant of his Boykin rights; Defendant indicated his willingness to plead guilty throughout the plea colloquy; Defendant acknowledged that he had discussed the guilty plea with his attorney; and he still desired to plead guilty and that he received a substantial benefit for pleading guilty. Accordingly, we find that the trial judge’s failure to advise Defendant that the first two years of his sentence on count two were to be served without the benefit of probation, parole, or suspension of sentence did not render Defendant’s guilty plea unknowing or involuntary.

The record further reflects that the trial judge advised Defendant of his habitual offender rights and Defendant indicated his willingness to stipulate to the habitual offender bill. Defendant acknowledged that he had discussed his stipulation with his attorney and that he still desired to stipulate to the habitual offender bill. Additionally, Defendant received a substantial benefit for stipulating to the habitual offender bill. Also, the record does not reflect that receiving the benefit of parole was crucial to his stipulation. Moreover, his enhanced sentence was ordered to run concurrent with a 20-year sentence with the restriction of benefits imposed. Accordingly,, we find that the trial judge’s failure to advise Defendant that the first two years of his enhanced sentence were to be served without benefit of. parole did not render his stipulation to the habitual offender bill unknowing or involuntary. See State v. Davis, 17-81 (La. App. 5 Cir. 6/29/17); 224 So.3d 1211 (where this Court’s review of the record reflected that defendant may have received inadequate information regarding the restriction of benefits for his enhanced sentence, but the omission did not require correction or warrant an 1 Sassignment of error).

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

DECREE

For the foregoing reasons, we affirm Defendant’s convictions and sentences and grant the motion to withdraw.

AFFIRMED; MOTION GRANTED

      . Prior to these filings, on March 25, 2015, Defendant filed omnibus motions, including motions to suppress statement, evidence, and identification.

      . While Defendant was charged with and pleaded guilty to one count of conspiracy to distribute heroin and marijuana, he was sentenced on conspiracy to distribute heroin only.

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95); 653 So.2d 1176, 1177 (per curiam).

      . On August 8, 2017, this Court" notified Defendant of his right to file a pro se supplemental brief in this appeal. Defendant did not file a supplemental brief.

      . Defendant's, original sentence on count two was vacated before he was sentenced as a habitual offender.

      . La. R.S. 15:1354(A) provides in pertinent part: "any person who-violates any provision of R.S. 15:1353 shall be fined not more than one million dollars, or imprisoned at hard labor for not more than fifty years, or both,”

      . La. R.S. 40:979 provides:
      A. Except as otherwise provided herein, any person who attempts or conspires to commit any" offense denounced and/or made unlawful’by the" provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned Or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
      B. Any person who attempts or conspires to distribute or possess with intent to distribute any substance classified in Schedule I, as provided for in R.S. 40:963 and R.S. 40:964, which is a narcotic drug (all substances in Schedule I preceded by an asterisk "*”) shall, upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence and may, in addition, be required to pay a fine of not more than ten thousand dollars.
      Defendant's sentence for conspiracy to distribute heroin falls under the penalty provision of La, R.S. 40:979(B), as heroin is classified as a *ScheduIe I narcotic drug.

      . At the time of the offense, La. R.S. 40:967(B)(4)(b) provided in pertinent part:
      Distribution.. .[of] cocaine... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

      . La. R.S. 15:529.1 provides in pertinent part that upon a second felony conviction, “the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.”

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: LILJEBERG, J.

text:
    Daniel J. LIGHTELL v. Tammy E. LIGHTELL
    NO. 17-CA-327
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, DANIEL J. LIGHTELL, Stephen R. Rue
    COUNSEL FOR DEFENDANT/APPELLANT, TAMMY E. LIGHTELL, Renee L. Swanson
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J, Liljeberg
   LILJEBERG, J.

liThe defendant; Tammy Lighted, seeks review of the trial court’s judgment finding she. was not free from fault in the dissolution of her .marriage to plaintiff, Daniel Lighted; and thus precluded from receiving final spousal support. The trial court made a factual finding based on its resolution of the parties’ conflicting testimony. Because the trial court’s factual finding was not manifestly erroneous, we. affirm.

FACTS AND PROCEDURAL HISTORY

The parties marriéd on April 30,, 1982, and have four children who- are ad of the age of majority. On August 31, 2015, Mr. Lighted filed a petition seeking a- divorce pursuant to La. C.C. art. 102 after the parties lived separate and apart for a period in excess of 180 days without reconciliation, In response, Ms. Lighted filed an answer and reconventional demand alleging she was free from fault in the termination of the marriage and entitled to interim and final spousal support. The parties appeared before a hearing officer on October 13, 2015, and he recommended that Mr. Lightell pay Ms. Lightell $4,623.00 per month in interim spousal support effective on October 15, 2015. Mr. Lightell filed an objection to the hearing officer’s recommendation and on January 26, 2016, the parties entered into a consent judgment awarding Ms. Lightell $5,000.00 per month for interim spousal support. On February 26, 2016, Mr. Ligh-tell filed a motion to determine fault and a rule to terminate spousal support. The trial court entered a final judgment of divorce on September 8, 2016.

On February 21, 2017, the parties appeared for a hearing on the rule to determine fault. At the conclusion of the hearing, the trial court took the matter under advisement. On March 7, 2017, the trial court rendered a judgment finding Ms. Lightell was not free from fault. On March 15, 2017, Ms. Lightell requested written reasons for judgment. However, the record does not contain a response [2from the trial court. On March 17, 2017, Ms. Lightell filed a timely motion and order for appeal, which the trial court granted on March 21, 2017.

At the hearing on the issue of fault, Ms. Lightell testified that she learned of Mr. Lightell’s decision to file for divorce when she went to the bank on August 31, 2015, and discovered their cheeking account was empty. Ms. Lightell called Mr. Lightell from the bank, and he told her he was leaving her because he was unhappy. At that time, Mr. Lightell was living with friends, but still had some of his possessions at their home.

During the marriage, Ms. Lightell worked various jobs and obtained a college degree. After graduating, she worked as a teacher from 1996 until 2007, when she quit working due to health problems. Ms. Lightell testified that Mr. Lightell was not happy that she worked as a teacher because he believed she could earn much more with a college degree. On December 26, 2007, the Louisiana State Medical Disability Board approved Ms. Lightens application for disability retirement. She explained that at that time, she was experiencing partial renal failure and her doctors told her she had to stop working. According to Ms. Lightell, at the time she stopped working, she was earning $2,000.00 every two weeks after deductions and Mr. Lightell was earning $160,000.00 per year. She also provided medical insurance for the family. Ms. Lightell testified that at the time of the hearing she received $800.00 per month in disability retirement pay, less deductions for health insurance.

Ms. Lightell did not introduce any medical records into evidence, but explained that she has a heart problem, a VP shunt for brain swelling and was diagnosed with rheumatoid arthritis in June 2015. Ms. Lightell explained that she was diagnosed with the brain swelling in 1996, following a car accident. She stated that she suffers from “Arnold Chiari Syndrome” and had three brain surgeries in 1996, 1999 and 2003. She has a “VP shunt” which drains cerebral [.-¡spinal fluid on a daily basis. She testified that she went back to work as a teacher within six weeks after each brain surgery. She claimed her doctors told her she should not go back to work, but she felt that she had to because they had four children to support. She also claimed that she was able to be intimate with her husband on a regular basis despite her health problems.

Ms. Lightell also experiences problems with her thyroid as a result of suffering from pituitary macroadenoma. Due to this condition, her pituitary gland was removed and she sees an endocrinologist on a monthly basis because her “adrenals'’ are affected due to the removal of the gland. She explained that this affects her hormones and as a result, her everyday life. Ms. Lightell was also born with a medul-lary sponge kidney which causes her to develop kidney stones. She also sees an oncologist because she had basal cell carcinoma in her inner right ear, which affected her jaw and required her to have a metal piece placed in her jaw in order to open and close her mouth. Ms. Lightell testified that she also had surgeries on her shoulders and has herniated discs. She explained that her doctors treat her back issues with epidural steroid injections.

In 2015, Ms. Lightell was diagnosed with rheumatoid arthritis. She testified that the medication she takes for this condition, methotrexate, makes her feel ill. Also, just ten days prior to the fault hearing, Ms. Lightell had a pacemaker installed due to heart problems. In the year after the parties’ separation, her heart problems caused her to suffer from syncope, which is the loss of consciousness due to a drop in blood pressure. Ms. Lightell sees seven doctors on a regular basis and explained that she usually sees two to three doctors per month. She testified that despite her health problems, she worked until 2007, cooked, cleaned and took care of their four children. She explained that at the time of the hearing, on good days, she can sweep, pick up clothes and sometimes cook. However, on bad days, she cannot get out of bed.

RMs. Lightell denied that she ever abused her former husband physically or emotionally, but claimed he abused her. Mr. Lightell admitted that on Father’s Day about 18 years ago, he grabbed Ms. Lightell by the arms during an argument and she left their home. Twenty minutes later, a policeman appeared at his door and arrested him for abuse. Mr. Lightell admitted to pleading guilty and was placed on nonactive probation.

On cross-examination, Mr. Lightell’s counsel questioned Ms. Lightell’s disability and directed her attention to a video on Facebook which showed her dancing. In response, Ms. Lightell explained that in the video she was at a surprise birthday party for her niece who was suffering from cancer and danced with other family members during one song. She also admitted that she went on family vacations where they went white water rafting and climbed a mountain. She explained that on the rafting trip they had a guide and she sat in the boat while everyone else paddled.

Ms. Lightell was also asked on cross-examination whether she accused Mr. Lightell of stealing her jewelry. She explained that when they evacuated for Hurricane Katrina, she brought her jewelry worth approximately $20,000.00 with her. She stated that Mr. Lightell put the jewelry above one of' the ceiling tiles in the room where they were staying. The jewelry went missing and Mr. Lightell told her someone stole the jewelry. On the way home, she became upset and asked Mr. Lightell to return to the room where they were staying so she could look for the jewelry, but he refused.

Mr. Lightell also accused Ms. Lightell of lying to obtain attention. Mr; Lightell’s counsel questioned her about an incident where she claimed their daughter was kidnapped at a Wal-Mart. Ms. Lightell explained that at the time, she recently had surgery and was on a new medication. While she was at Wal-Mart, she became dizzy and blacked out. When she woke up, she was confused Land thought her daughter was with her at the store. When she did not see her, she thought she was missing. She called Mr. Lightell and he told her their daughter was at home. She denied that the police were called about the incident, Mr. Lightell, on the other hand, testified that the police were called to the store and when he arrived at the store, he sent Ms. Lightell home. He and their sons helped the police search the parking lot and Mr. Lightell later left to go home and check on Ms.. Lightell. When he arrived home, he found their daughter lying in her bed.

Ms. Lightell was also • questioned about an incident where she allegedly called Mr. Lightell and told him their daughter was on the floor due to a drug overdose. Mr. Lightell claimed that when he arrived home, their daughter was fine and did not know anything about allegedly overdosing on pills. Ms. Lightell denied the entire incident.

Mr. Lightell’s counsel also questioned Ms. Lightell about lying to Mr. Lightell about receiving free dental work at the LSU School of Dentistry, and then incurring a $27,000 : dental bill. Ms. Lightell explained that she had jaw surgery after suffering from basal cell carcinoma. She thought insurance would pay for the surgery, but claimed her employer switched insurance companies and the new insurer refused to pay the dental bill.

Ms.1 Lightell testified that she and Mr. Lightell argued as any normal couple during their marriage and that the arguments escalated when their s.on left college to become a Mormon and a missionary. Ms. Lightell explained that she supported then-son’s decision and Mr. Lightell was very upset and depressed about the situation. She claimed that when Mr. Lightell came home he was angry and did not want to talk to her or the children. She said that sometimes he did not come home on his days off and she did not know where he was. She claimed that he was upset that the children were growing up and leaving home. Both parties admitted to saying terrible things to one another during their arguments prior to the end of lathe marriage. Ms. Lightell admitted that she accused Mr. Lightell of being gay, but claimed that was in response to him calling her a “whore” and a “bitch.”

Ms. Lightell testified that she fought hard for then- marriage and would have done anything to try to make it work. She also begged Mr. Lightell to go to therapy, but he refused. She said he told her he was unhappy, done with the marriage and that he never loved her. Ms. Lightell admitted to apologizing to Mr. Lightell in August 2016, for taking the- best years of his life, but denied that she was equally at fault for the failure of their marriage. She claimed that they both apologized for the things they did to one another.

She claimed that at the end of the marriage, they both accused each other of many things out of anger. She admitted that their arguing contributed to the breakup of the marriage, and that they argued about her medical condition which prohibited her from working, then- kids, other family members and their finances. Ms. Lightell denied that she threw Mr. Lightell out of the house o.n multiple occasions and claims.that he left. She stated that he was depressed about many things including their marriage, his job, their kids and family members.

Mr. Lightell testified that he filed for divorce because he was humiliated and could not please Ms. Lightell. He also claimed that their fights contributed to his decision to file for divorce because Ms. Lightell constantly told him he was not good enough and not doing enough for their kids. She compared him to -her family members and he felt he was always, competing with them. Mr. Lightell explained that before they separated, Ms. Lightell would not want to go anywhere or. do anything with him when he was home from work, and would sit in the house depressed. However, when he returned home, she would tell him about the things she did with family and friends while he was away.

He testified that he felt she was taking too much medication and exaggerating the effect of her illnesses. He explained that their adult children were 17embarrassed by Ms. Lightens behavior. Mr. Lightell explained that on several occasions,. Ms. Lightell pretended to pass out to try to keep their daughter from leaving to go to dinner with Mr,. Lightell and her other siblings. Mr. Lightell also explained that on several occasions, Ms. Lightell insisted on going to the hospital in an ambulance claiming extreme pain and after arriving, the doctors could not find anything wrong with her other than low potassium. He encouraged Ms. Lightell to eat food to help increase her potassium, but she would not do it. He stated that their children told Ms. Lightell she needed to do something other than sitting around the house, taking medications and being depressed.

He also explained that in the three years prior to the hearing, he came home from work on several occasions to find his clothes thrown outside of the house. Ms. Lightell would tell him to leave or she would call the police. He would gather his clothes and go stay with family or friends. Also, one night when Ms. Lightell was in the hospital, she told a nurse that her husband beat her and her kids every day. He told her that he could not continue to live with her constantly threatening to call the police to arrest him and not knowing what she was going to do from day to day. He felt as if he was “walking on egg shells” eyery day during the last two years of the marriage.

Mr. Lightell claimed that Ms. Lightell falsely accused him of having an affair with a family friend. He also claims that she stated on Facebook that Mr. Lightell had three or four DWI convictions. Ms. Ligh-tell denied accusing Mr. Lightell of having an affair. With respect to the DWI allegations, she explained that in 2015, she received a phone call from a Lafitte policeman to come pick Mr. Lightell up because he was drunk, and that this occurred .several times. Mr. Lightell admitted that on one occasion he was stopped by a deputy and told he should have someone drive him home because he was “borderline drunk.”

IsMr. Lightell testified that the “straw that broke the camel’s back” was when Ms. Lightell started- taking money from the children and started hiding credit cards. He claimed that she spent more money than he earned, forged checks and borrowed money from his life insurance policy without telling him. He also claimed that she obtained a-loan for their son for college and included Mr. Lightell as a cosigner without first consulting him. Ms. Lightell denied taking money from their children and forging checks. She also claimed that Mr. Lightell told her to obtain credit cards in both of their names and that they both used the cards,

LAW AND DISCUSSION

On appeal, Ms. Lightell argues that she satisfied her burden to prove she was free from fault. She further contends that she is entitled to special consideration due to her health issues. She contends that in response, Mr. Lightell was not able to point to any specific incidents that caused the breakdown of their marriage and instead, raised vague and non-specific complaints that occurred over the entire course of their 34-year marriage.

Final spousal support may only be awarded to a spouse who has not been at fault in the termination of the marriage and is in need of support. La. C.C. art. 111. The initial consideration in determining if a claimant is entitled to final spousal support is whether he or she is free from fault in causing the breakup of the marriage. English v. English, 09-214 (La. App. 5 Cir. 12/8/09), 30 So.3d 33, 35. The spouse seeking final spousal support has the burden of proving that he or she is without fault. Id.

Statutory law does not specify what constitutes fault sufficient to bar an award of final spousal support. However, the jurisprudence has found the necessary conduct to be synonymous with the fault grounds which previously entitled a spouse to a separation under former La. C.C. art. 138 or the fault grounds which currently entitle a spouse, to a divorce under La. C.C. art. 103. Hutson v. Hutson, 39,901 (La. App. 2 Cir. 8/9/05), 908 So.2d 1231, 1235. Prior to its repeal, La. C.C. art. 138 provided the grounds for separation which included adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment. La. C.C. 103' currently enti-' ties a spouse to seek a fault-based-divorce on the basis of the other spouse’s adultery, conviction of a felony with a sentence of death or imprisonment at hard labor, the physical or sexual abuse of the spouse seeking a divorce or a child of one of the spouses during the marriage, or the issuance of a protective order during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.

Jurisprudence has also identified other activity that can be construed as fault for the purpose of denying final spousal support, .including conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties or responsibilities. See Barnett v. Barnett, 15-766 (La. App. 5 Cir. 5/26/16), 193 So.3d 460, 466, writ denied, 16-1205 (La. 10/10/16), 207 So.3d 406; Evans v. Evans, 04-215 (La. App. 5 Cir. 7/27/04), 880 So.2d 87, 89, writ denied, 04-2191 (La. 11/19/04), 888 So.2d 200.

Spouses seeking support need not be perfect to be free from legal fault; rather, to constitute fault which will prohibit a spouse from permanent support, the spouse’s conduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Matthews v. Matthews, 15-499 (La. App. 5 Cir. 12/23/15), 184 So.3d 173, 177. Petty quarrels between husband and wife do not rise to the level of “legal fault.” Rather, to be legally at fault, a spouse must be guilty of cruel treatment which compels separation because the marriage is insupportable. Evans, 880 So.2d at 89. To prove cruel treatment, a party needs to show a continued pattern of mental harassment, nagging, and griping by one spouse directed at the other so as to make 1inthe marriage insupportable. Barnett, 193 So.3d at 467. Mere bickering and fussing do not constitute cruel treatment for purposes of denying final spousal support. Id.; Gilley v. Gilley, 07-568 (La. App. 5 Cir. 12/11/07), 976 So.2d 727, 728.

There is little jurisprudential guidance on how a claimant spouse proves he or she is free from fault for purposes of spousal support. Barnett, 193 So.3d at 467. In Hut-son, supra, the court found the claimant spouse met her burden of proving she was free from fault through her own testimony, as well as the testimony of her niece, sister and neighbors, that she did nothing to break up the marriage and had been a good wife. The court determined that this evidence constituted prima facie proof that the claimant spouse was not at fault in the' breakup' of the marriage. The court then shifted the burden to the non-claimant spouse to prove conduct on the part of the claimant spouse that rose to the level of fault. 908 So.2d at 1236. Furthermore, this Court has recognized that a spouse in poor health is entitled to special consideration. Barnett, 193 So.3d at 469.

The issue of spousal fault turns largely on evaluations of -witness credibility. Noto v. Noto, 09-1100 (La. App. 5 Cir. 5/11/10), 41 So.3d 1175, 1179. Thus, the trial judge, as trier of fact having the opportunity to observe the demeanor of the witnesses, has vast discretion in determining the weight and credibility of witnesses. Pearce v. Bailey, 348 So.2d 75, 78 (La. 1977). A trial court’s factual findings regarding fault in the area of domestic relations are to be given great deference, and findings of fact on the issue of a spouse’s fault for the purposes of determining final spousal support will not be disturbed on appeal unless found to be manifestly erroneous. Desai v. Desai, 01-1325 (La. App. 5 Cir. 4/10/02), 817 So.2d 230, 231.

Ms. Lightell claims that her alleged health issues and arguments regarding their son’s decision to become a missionary for the Mormon Church caused Mr. hi Lightell to file for divorce. Mr. Lightell denied that Ms. Lightell’s health was a factor in ending their marriage, other than his claim that their family believed she exaggerated the effects of her illnesses for attention. Ms. Lightell suffered from various medical conditions throughout their 34-years together and Mr. Lightell remained in the marriage. He testified that he decided to file for divorce due to Ms. Lightell’s cruel treatment, which included verbal arguments with disparaging comments, throwing his clothes out of the house on multiple occasions, threats to call the police if Mr. Lightell would not leave the home, and false accusations on Face-book regarding DWI convictions. He also pointed to Ms. Lightell’s embarrassing conduct when exaggerating her illnesses and taking too much medication, as well as the financial stress she placed on the marriage. He testified that he was humiliated by Ms. Lightell’s conduct toward him and he could no longer remain in the marriage as a result.

Although we recognize that a spouse should not be deprived of final spousal support simply because she is not totally blameless for the dissolution of the marriage, in light of the conflicting testimony and facts and circumstances of this case, we cannot say the trial court abused its vast discretion in determining the credibility of the witnesses and the weight to give their testimony, nor can we say that it was manifestly erroneous in finding Ms. Ligh-tell failed to prove she was free from fault in the breakup of the marriage. The trial court obviously chose to accept Mr. Lightens testimony regarding the events leading to the dissolution of the marriage, which support a finding of cruel treatment on the part of Ms. Lightell well beyond mere bickering. Furthermore, Ms. Lightell did not introduce any evidence other than self-serving testimony regarding her medical conditions and how these conditions entitled her to special consideration to excuse her conduct toward Mr. Lightell.

[ ^DECREE

Accordingly, we find that the trial court was not manifestly erroneous by concluding defendant, Tammy Lightell, was not free from fault in the breakup of her marriage to plaintiff, Daniel Lightell.

AFFIRMED

CHEHARDY, C.J. DISSENTS WITHOUT REASONS


author: WINDHORST, J.

text:
    Carlo CONFORTO v. Dylan TOSCANO, United Services Automobile Association and Allstate Insurance Company
    NO. 17-CA-20
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CARLO CONFORTO, Laurence D. Cohen
    COUNSEL FOR DEFENDANT/AP-PELLEE, DYLAN TOSCANO AND USAA CASUALTY INSURANCE COMPANY, T. Gregory Schafer
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg i
   WINDHORST, J.

| íAppellant, Carlo Conforto, appeals the trial court’s September 22, 2016 judgment, granting his motion to tax costs against appellees, Dylan Toscano and United Services Automobile Association. For the reasons that follow, we affirm.

Facts and Procedural History

On March 18, 2011, appellant was involved in a motor vehicle accident and as a result sustained injuries. Appellant filed a petition for damages against appellees on February 10, 2012. A jury trial was held March 28 through March 30, 2016, wherein judgment was rendered in favor of appellant in the amount of $145,708.36 plus legal interest from the date of judicial demand and all court costs.

At the trial on the merits, appellant inquired into how the trial court would like to handle expert witness fees when he had his first expert witness on the stand. After a bench conference with opposing counsel and the trial court, it was agreed that the expert witness fees would be addressed after trial at a motion to tax 'costs.

|2On April 26, 2016, appellees filed a motion for JNOV and/or new trial, which was denied by the trial court oh July 11, 2016. Appellant filed a rule to tax costs on August 9, 2016, wherein he requested expert witness fe'es for Dr. Rand Voorhies, Dr. Donald Dietz,' Dr. Peter Zimmerman, Dr. Samuel Greenburg, and Nathaniel Fentress. After a hearing, the trial court issued judgment granting appellant’s motion on September 22, 2016. The judgment awarded expert witness fees to appellant for four of the five experts called to testify at trial. The trial court did not award an expert witness fee for one expert, Dr. Samuel Greenburg, appellant’s treating physician. This appeal followed.

Discussion

La. C.C.P. art. 1920 authorizes the taxing of costs. Further, La. R.S. 13:3666 authorizes expert witness fees to be taxed as costs and provides in pertinent part:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in ' the cause.

13A trial court has great discretion in awarding costs and its assessment will not be reversed on appeal absent an abuse of discretion. State of Louisiana, Dept. of Transp. & Develop. v. Monteleone, 11-1013 (La. App. 6 Cir. 11/13/12), 106 So.3d 153, 173, writ denied, 13-118 (La. 03/01/13), 108 So.3d 1179; Scramuzza v. River Oaks, Inc., 03-959 (La. App. 5 Cir. 03/30/04), 871 So.2d 522, 531, writ denied, 04-1088 (La. 06/25/04), 876 So.2d 839.

Factors to consider in determining a reasonable expert witness fee award include the time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Bourgeois v. Heritage Manor of Houma, 96-0135 (La. App. 1 Cir. 02/14/97), 691 So.2d 703, 708. Other considerations by the trial court include helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Id. However, expert witnesses are entitled only to reasonable compensation. Id The amount agreed upon between an expert witness and the party calling him is not the criterion to be used by the court in assessing expert fees. Id.

Competent evidence must be produced by a litigant on a contradictory rule to fix and tax expert witness fees pursuant to La. R.S. 13:3666 B(2). Wampold v. Fisher, 01-808 (La. App. 1 Cir. 06/26/02), 837 So.2d 638, 640. The assertions of an attorney and expert through a submitted bill, even in conjunction with an expert’s affidavit attesting' to the correctness and truth of the bill, do not support an award for the total time of an expert. Dakmak v. Baton Rouge, 12-1850 (La. App. 1 Cir. 09/04/14), 153 So.3d 511, 515. The expert must testify at the trial of the rule and be subject to cross-examination. Wingfield v. State ex rel. Dept, of Transp. and Development, 03-1740 (La. App. 1 Cir. 05/14/04), 879 So.2d 766, 770; Wampold, 837 So.2d at 640.

When a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the trial court. Cambre v. St. John the Baptist Parish, 12-590 (La. App. 5 Cir. 05/16/13), 119 So.3d 73, writ denied, 13-1415 (La. 10/11/13), 123 So.3d 1227.

In his first assignment of error, appellant contends that the trial court erred in not awarding appellant the expert costs for the appearance and testimony of Dr. Samuel Greenburg during the trial of this case.

Appellant requested expert witness fees for Dr. Greenburg at the motion to tax costs. Appellee opposed the request. Attached to his motion, appellant included a letter from Dr. Greenburg stating the fees for his court appearance and testimony totaling $2,250.00 and a check to Dr. Greenburg in the amount of $750.00 for the “difference for trial fee.” However, no evidence or testimony was admitted regarding the expert witness fees for Dr. Greenburg, only argument. Since the matter was submitted to the trial court and the judgment is silent as to this claim, it is presumed to have been denied by the trial court. We find that the trial court did not abuse its discretion in denying appellant’s request for expert witness fees for Dr. Greenburg based on a lack of admitted supporting evidence. Moreover, we find that the documents which were attached to his motion and memorandum would not have been sufficient on them own to award expert fees to Dr. Green-burg had they been admitted. Dr. Green-burg did not testify and was not subject to cross-examination at the hearing. Dak-mak, supra, Wingfield, supra, and Wam-pold, supra. Accordingly, this assignment of error is without merit.

In his second assignment of error, appellant contends that the trial court committed legal error in failing to award expert costs to Dr. Greenburg and therefore, this Court should review de novo all of the expert. fees based on the lower court’s abuse of discretion in the low cost awards it made for the other experts. Because we find the trial court did not commit legal error in declining to award expert witness | sfees to Dr. Greenburg, there is no basis or ground to justify a de novo review by this court. This assignment of error is therefore without merit.

Conclusion

Based on the foregoing, we affirm the trial court’s September 22, 2016 judgment.

AFFIRMED

      .. On September 14, 2017, this Court, ordered the trial court to amend the September 22, 2016 judgment to include the appropriate and necessary decretal language for a final judgment. The trial court rendered an amended judgment on September 15, 2017, which was filed into this Court's record on September 20, 2017.

      . Appellees did not appeal or file an answer to the trial court's September 22, 2016 judgment.

      . The following discussion took place at the trial of this case on March 28, 2016.
      Bench conference held on the record:
      Mr. Cohen:
      Judge, I want to be certain about expert witness fees and how you handle that with these witnesses. Do I add it into the bill? Do you treat that separately? Do they testify here and tell them what their costs is for appearance?
      Mr, Schafer:
      We can address that after the trial. Depending on what the evidence is usually done for a motion and tax costs after.
      Mr. Cohen:
      Well, I’m going to make sure that they get their witness fees on the record.
      Mr. Schafer:
      Well, you can submit that through—
      The Court:
      Whatever his fees are you submit that after the person testifies.
      Mr. Schafer:
      For a motion, I mean, I think we do — if you have a piece of paper, I’m not going to — I’ll say it in front of the judge, I’m not going to object to that down the road, that we have a motion to tax costs after the trial.
      Mr. Cohen: Okay. All right, thanks Judge. Thank you Tom.

        (Back on the record)

      . La. C.C.P. art. 1920 provides:
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.