source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William Clay BENNETT
    17-889
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT-APPELLANT: William Clay Bennett
    Asa Allen Skinner, District Attorney, 30th JDC, Terry W. Lambright, Assistant District Attorney, 30th JDC, P.O. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR STATE-APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Elizabeth A. Pickett, Judges.
   PICKETT, Judge.

FACTS

On January 3, 2017, the defendant, William Clay Bennett, was charged by bill of information, number 90484, with one count of operating a vehicle while intoxicated (OVI), fourth offense. On the same day, he was also charged by bill of information, number 90485, with one count of failure to operate a motor vehicle in a single lane zoned for traffic, one count of possession of an open container of an alcoholic beverage in the passenger compartment of a vehicle, and one count of operation of a motor vehicle without wearing a seatbelt.

The defendant filed a Motion for Preliminary Examination in the trial court on September 30, 2016. On October 25, 2016, the state filed a Response for Preliminary Examination which included copies of documents related to the state's prosecution of the defendant for the above offenses and court minutes from relevant prior convictions.

On May 3, 2017, as part of a plea agreement, the defendant tendered a plea of guilty to operating a vehicle while intoxicated, fourth offense. In accordance with the plea agreement, the state dismissed all charges in bill of information number 90485. The state also recommended a cap on his sentencing of not more than twenty years, with sentencing left up to the court. Additional recommendations by the state included that the defendant receive intensive substance abuse treatment while incarcerated and that he be sentenced to a facility which provided the opportunity for the defendant to obtain his college degree. The state took no position on the defendant's request that his sentence in this case be served concurrently with any other sentences. During this proceeding, the defendant's signed Plea Agreement and Waiver of Constitutional Rights and Plea of Guilty forms were entered into the record.

On July 11, 2017, the defendant was sentenced to twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, plus a fine of five thousand dollars plus costs. The court ordered that the defendant not be given credit for time served since the date of arrest and that his sentence run consecutive with any and all other sentences. The court noted that it considered the Presentence Investigation (PSI) report along with La.Code Crim.P. art. 894.1. The defendant objected to the court's sentence, particularly to the court's denial of credit for time served.

The defendant filed a Motion to Reconsider Sentence on July 18, 2017, asserting that he should have been given credit for time served, and that the court did not follow the recommended plea agreement by ordering his sentence to be served consecutively to any other sentence. Further, the defendant asserted that the sentence imposed is excessive, that the sentence is not within the statutory limits and is a manifest abuse of discretion, and that the trial court failed to adequately consider applicable mitigating circumstances.

The trial court issued a Judgment on Rule, on July 31, 2017, granting the defendant credit for time served but denying the other portions of the defendant's Motion to Reconsider Sentence. On the same day, the trial court issued Written Reasons and stated its reasons for denying the other claims in the defendant's Motion to Reconsider Sentence. On August 14, 2017, the defendant filed a Motion for Appeal and Designation of Record in the trial court, which was granted on August 15, 2017.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

In the defendant's sole assignment of error, he alleges that based on the record of this case, the trial court erred by sentencing him under La.R.S. 14:98.4(C) to a consecutive, twenty-year sentence without the benefit of probation, parole, or suspension of sentence because the record only supported a sentence under La.R.S. 14:98.4(A)(1), which does not require a consecutive sentence and only requires that two years of the sentence be served without benefits.

The defendant first argues that "there were no pretrial motions heard to develop facts in this case." There is no merit to this argument by the defendant. In the state's Response for Preliminary Examination, filed on October 25, 2016, the state attached multiple documents pertaining to its prosecution of the defendant for the instant offense. Subsequently, the defendant did not file any further motions for preliminary examination or request a hearing on any such motions. Further, aside from the Motion and Request for Discovery and Bill of Particulars Pursuant to Local Rule, filed on January 10, 2017, which the state answered on February 21, 2017, the defendant did not file any other discovery requests. In light of these facts, we do not agree there were no pretrial motions heard to develop facts in this case.

Next, the defendant argues that because the PSI report was not offered into the record of this case, it "cannot be considered in this appeal to determine if there are sufficient facts to support the trial court's ruling." In support of his argument, the defendant cited State v. Cottingin , 476 So.2d 1184 (La.App. 3 Cir. 1985) and State v. Malbroux , 507 So.2d 319 (La.App. 3 Cir. 1987). The defendant stated that, in Cottingin , this court could not review the PSI because "the Report was not filed into the original record." The issue being discussed in Cottingin was whether the trial court complied with La.Code Crim.P. art. 894.1. This court, in Cottingin , actually said, "the pre-sentence report was not filed in the record or made a part of the record for this court to review." Cottingin , 476 So.2d at 1186. In Cottingin , the state attached a copy of the report to it brief, but this court stated it has no authority to receive or review evidence not contained in the trial court record. This court noted "Act 384 of 1985, effective September 6, 1985, has now amended La.C.Cr.P. Art. 877 to provide that a pre-sentence report shall be made a part of the record if a defendant seeks post-conviction relief on the grounds of excessive sentence." Cottingin , 476 So.2d at 1186, n.1. The date of the sentencing hearing in Cottingin is not indicated; however, the defendant pled in September of 1984. Given that the date on which the defendant pled was approximately a year prior to the effective date of Act. 384 and given the wording of this court's footnote, it appears the sentencing date in Cottingin was prior to the effective date of the amendment to Article 877.

In support of the defendant's argument that this court's review of the evidence in the instant case is restricted to the transcripts from the sentencing hearing and the trial court's written reasons for judgment, the defendant cited a portion of this court's holding in Malbroux which stated that because "the report was not made a part of the record before us, we are unable to review these alleged deficiencies." The quote the defendant relies on was made by this court in reviewing defendant's assertion in Malbroux that the PSI report did not comply with La.R.S. 15:1132, which requires the report to undertake such things as educational and medical studies of the defendant. The defendant in Malbroux also asserted the trial court erred in refusing to allow him to challenge and correct allegedly false and inaccurate material in the PSI report. In addressing that issue, this court held that because the trial court was not bound by the sentence recommendation and used the PSI in deciding whether to accept or reject the sentence recommendation, it erred in not allowing the defendant to rebut information in the report that was prejudicial to the defendant. This case, however, is distinguishable from Malbroux because here the defendant does not claim to have requested to view the PSI, nor does he assert that it contains erroneous and prejudicial information. The trial court quoted the defendant's OVI arrest and conviction record directly from the PSI:

Okay. Then I'm going to turn to the PSI because, Mr. Bennett, you have a very extensive criminal record, sir. Approximately 5/23/83-I'm just going to cover the alcohol, driving under the influence, offenses that you have. You have received an OWI misdemeanor in the City Court of Leesville. You pled guilty to that. On 2/18/84 you had a DWI, first. You pled guilty to that. That was in the 30th Judicial District Court. Then in 3/22/85 you have an OWI, second, in City Court. You pled guilty to that. 4/28 of '85 you have an OWI, third, in the 30th Judicial District Court. You pled guilty to DWI, second, in that case. And 1/91-in '91, that's the offense date, in the 30th Judicial District Court you pled guilty to DWI, first. 12/21/92 in City Court, Leesville City Court, you pled to OWI, second. In '95-in 5/4/95 you have an OWI, second, in City Court that you pled guilty to OWI, first, and the same one in '92 you pled to a first offense. In '97, 3/21/97 is the offense date, you have a DWI, fourth. You pled guilty to a DWI, second, in the 30th Judicial District Court. In '98, 4/29 of '98 in Morgan City, this is not a DWI, but this is a felony of-you pled guilty to the entry of an inhabited dwelling and sentenced to five years DOC. '99, that was-in 2000 you were revoked on that sentence and then 10/27 of '99 you have, once again, DWI, fourth, here in Vernon Parish. You pled guilty to a third, sentenced to five years, suspended three years, parole, parole and parole [sic]. But you were revoked and probation was revoked in 2002 on that one. In '06, 9/30/2006, you pled guilty in 2007, DWI, fourth. You got ten years DOC. Then '13 you got a DWI, second, and you pled guilty to that, and then we have the current offense of DWI, fourth. You pled guilty 5/3 of 2017. If my math is correct you have one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve-this is your thirteenth DWI and you have at least another felony and you have been revoked on probation before. Mr. Bennett, it's not likely that you're going to respond favorably to probationary treatment. You've had treatment in the past, you've been incarcerated, your probation has been revoked, your parole has been revoked. There is an undue risk that during the period of a suspended sentence or probation that you will commit another crime and you are in need of correctional treatment in a custodial environment. A lesser sentence will deprecate the seriousness of your offense.

When the trial court quoted the relevant portions of the PSI at sentencing, the defendant did not object and did not indicate any error in that information.

Further, based on his assertion that appellate review is limited to the sentencing transcript and the trial court's written reasons, the defendant asserts that the record does not support a finding that the defendant previously benefited from parole, probation, or suspension of sentence, as required by La.R.S. 14:98.4(C). We find no merit in this argument as will be discussed more fully below.

The state first argues that the defendant waived his right to appeal when he signed the Plea Agreement on May 3, 2017, which stated:

By accepting this plea agreement, defendant waives, releases and relinquishes any claim or right to appeal this matter, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise on a claim if [sic] ineffective assistance of counsel.

On the same day, the defendant also signed a Waiver of Constitutional Rights and Plea of Guilty which waived his right to appeal from a guilty verdict, among other rights, but also informed him that he had "thirty days after the rendition of the judgment to file a motion to appeal [his] sentence or any other orders or judgments of the court." Given that the record is conflicting in regard to whether or not the defendant waived his right to appeal his sentence in this matter, we find the defendant did not validly waive his constitutional right to have the sentence reviewed.

The state further argues that under the provisions of La.Code Crim.P. art. 877, it did not err in not making the PSI report a part of the record. Louisiana Code of Criminal Procedure Article 877 states:

A. The presentence and postsentence investigation reports shall be privileged and shall not be disclosed directly or indirectly to anyone other than the sentencing court, the victim or the victim's designated family member, as defined in R.S. 46:1842, the prosecutor,
members of the division of probation and parole within the office of adult services, the officer in charge of the institution to which the defendant is committed, the committee on parole, the probation or the parole officer if the defendant is placed on probation or released on parole, medical authorities directly involved in the defendant's rehabilitation or treatment if the defendant is committed to a hospital or a substance abuse program, the Board of Pardons, and the governor or his representative. However, this Article shall not require the disclosure of sources of confidential information.
B. Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation report. The sources of confidential information shall not, however, be disclosed. If the defendant contests any information contained in the presentence report, the court shall provide the district attorney the same access to the report as was given to the defendant or his counsel. The district attorney may respond to the defendant's contentions concerning the information in the presentence report.
C. The presentence investigation report, edited to protect sources of confidential information, shall be made part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence imposed by the court.

The state notes that in State v. Carrier , 453 So.2d 1216 (La.App. 3 Cir. 1984), this court, in reviewing claims of excessiveness and compliance with La.Code Crim.P. art. 894.1, stated that there was no requirement for the PSI to be made part of the record for appellate review. This court also stated:

[T]there is no allegation that defendant requested that the report be made part of the record or that he be allowed access to it. Absent such a request, there is no error in not making the report a part of the record. The defendant also makes no claim that the report contained false information prejudicial to him which would entitle him to access.

Id. at 1218 (citation omitted). Carrier , however, was decided prior to the effective date of the amendment to article 877, which now provides that the PSI report shall be made a part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence.

The defendant did not request that the report be made part of the record. The state, however, requested that, in compliance with the provisions of La.Code Crim.P. art. 877(C), the PSI be made a part of the record since the defendant appealed his sentence. The PSI is, in fact, part of the record before this court.

The defendant asserts the record, without the PSI report, does not establish the requisites for the application of La.R.S. 14:98.4(C). However, the PSI report states that on September 19, 2016, the defendant's parole, which he was sentenced to as a result of the defendant pleading guilty to DWI Fourth, was revoked due to the arrest that resulted in the instant DWI Fourth conviction. Because the defendant did previously receive the benefit of parole on a DWI Fourth conviction, which was revoked as a result of a subsequent DWI Fourth conviction, as required by La.R.S. 14:98.4(C), the trial court did not err in sentencing the defendant under section (C) of La.R.S. 14:98.4.

The defendant alternatively argues that the record also does not support a sentence under La.R.S. 14:98.4(B). Because we find the record supports the sentence imposed under La.R.S. 14:98(C), it is not necessary to address the merits of the defendant's argument that the record does not support a sentence under La.R.S. 14:98(B).

CONCLUSION

The defendant's sentence is affirmed.

AFFIRMED.


author: GREMILLION, Judge. THIBODEAUX, Chief Judge, concurring.

text:
    Jenella E. BEN and Rickie Hairston v. BALDWIN & LYONS, INC., et al.
    17-678
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Richard D. Chappuis, Jr., Beau A. LeBlanc, Voorhies & Labbe, 700 St. John Street, Fifth Floor, P.O. Box 3527, Lafayette, LA 70502, (337) 232-9700, COUNSEL FOR DEFENDANTS/APPELLANTS: Baldwin & Lyons, Inc., Oakley Trucking, Inc., Shermain Montiel Vaughn
    J. Kirk Piccione, Brenda S. Piccione, Piccione & Piccione, 2701 Johnson Street, Suite 301, P.O. Box 3029, Lafayette, LA 70502, (337) 233-9030, COUNSEL FOR PLAINTIFF/APPELLEE: Rickie Hairston
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

Defendants appeal the trial court's judgment awarding plaintiff, Rickie Hairston, $195,000 in general damages and $60,683.93 in special damages for injuries sustained in a motor vehicle accident. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts in this matter are not in dispute. Defendant, Shermain Montiel Vaughn, was driving a semi truck for his employer, Oakley Trucking, Inc., who was insured by Baldwin & Lyons, Inc. In March 2012, Vaughn collided with the left front panel of Jenella E. Ben's vehicle while attempting to make a left turn onto West Willow Street from North University Avenue in Lafayette, Louisiana. Hairston was a passenger in Ben's vehicle. Defendants stipulated that Vaughn was 100% percent at fault in causing the accident and that he was in the course and scope of his employment at the time.

Hairston filed a petition for damages in August 2012. Following a trial in April 2017, the trial court rendered judgment finding that Hairston proved the subject accident caused him the following injuries:

1) Cervical pain with radiculopathy and spasm
2) Irritated nerves in the right arm
3) Left sacroiliac joint pain
4) Non-specific upper extremity paresthesias
5) Subluxating Patella and Torn Meniscus of the left knee, which was surgically repaired by Dr. Blanda.
6) Posttraumatic headaches, and head trauma Lumbar [sic] pain on [sic] with some muscle spasms.

The trial court awarded Hairston $195,000 in general damages and $60,683.93 in special damages, $240 of which was for lost wages. Defendants now appeal.

ASSIGNMENTS OF ERROR

1. The Trial Court erred in awarding Plaintiff Hairston an amount for lost wages when no concrete evidence was introduced at trial proving with any specificity an amount of wages which Plaintiff lost as a result of this accident.
2. The Trial Court Erred [sic] in failing to discredit the testimony of Plaintiff Hairston after his testimony was impeached at trial.
3. The Trial Court erred in giving greater weight to the testimony of Dr. Bozzelle concerning Plaintiff's neck and back injuries allegedly sustained in the accident, when both Drs. Butaud and Blanda contradicted Dr. Bozzelle's testimony concerning Plaintiff's alleged neck and back injuries.
4. The Trial Court erred in giving greater weight to the testimony of Dr. Blanda concerning Plaintiff's alleged knee injury than it gave to the testimony of Dr. Butaud, who was more qualified to opine on Plaintiff's condition, and who had the benefit of reviewing additional, indispensable medical records which Dr. Blanda did not consider.
5. The Trial Court erred in awarding general damages in excess of the highest reasonable amount that could be awarded for the injuries he allegedly sustained in the accident sued upon.

DISCUSSION

Manifest Error

The supreme court recently summarized the manifest error standard of review:

This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg , 15-247, p.10 (La. 10/14/15), 186 So.3d 83, 90.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

Liability-Causation

Although defendants' second assignment of error refers to credibility determinations, the crux of this argument is that the subject accident was not the cause of Hairston's injuries. Elemental to any negligence claim is causation. The determination of whether defendants' conduct was a cause-in-fact of the plaintiff's injuries is also a question of fact subject to the manifest error review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La. 5/22/09), 16 So.3d 1065. A trial court is in a better position to make credibility determinations, as it has the benefit of examining the nuances of a witness's testimony and demeanor. Lopez v. Lopez , 00-660 (La.App. 3 Cir. 11/2/00), 772 So.2d 364. Because a finding of no causation would moot the damages issue, we address this assignment of error first.

Defendants claim that Hairston injured his knee after jumping out of a bunk bed in 2010 and failed to treat the injuries then and, thereafter, to report the previous injury to his current doctors. Defendants argue that Hairston's testimony is not credible because he admitted that he did not tell the current doctors of his previous injury. In brief, defendants state: "The evidence is clear that the March 2012 accident forming the basis of the instant suit did not cause those [knee] injuries.... Dr. Blanda's opinion that the March 2012 accident caused Plaintiff's knee injuries and necessitated his knee surgery is clearly wrong[.]"

The following is a summary of the testimony elicited at trial or via deposition. Ben testified that she picked Hairston up from the airport in New Orleans the day before the accident and that he moved in with her. She said they had dated for 5 years before the accident and that Hairston was the father of her two youngest children. Ben said that, prior to the accident, Hairston played basketball and played with their one year old on the floor. She said when Hairston was moving in, he was able to lift heavy items like furniture. Ben testified that they moved two times following the accident and that Hairston was unable to lift anything. She said she had to call her brothers to help.

Following Hairston's knee surgery a year before trial in April 2016, Ben said that Hairston required assistance that she could not provide because she herself had surgery, so Hairston's brother had to come from Pennsylvania to assist him in bathing, dressing, and using the bathroom. Ben described Hairston as a sports fan who loved to play football and basketball, which he still could not do at the time of trial.

Ben admitted on cross-examination that Hairston returned to work as a cook at Our Lady of Lourdes Medical Center within one month of the surgery and has worked continuously since then. She further admitted that Hairston worked as a painter and carpenter from the time he moved back to Louisiana until at least May 28, 2013, when defense counsel took his deposition.

Hairston testified that he works forty hours a week as a cook making $11.49 per hour. He testified about the moving activities that occurred the day before the accident, including moving furniture and TVs, and walking up and down stairs. He said he had no problems doing any of this activity, or with his neck, back, or knee prior to this accident.

Hairston testified that following the accident, he had intensification of previously existing headaches, neck pain lasting about four months, and he still occasionally has back pain he did not experience prior to the accident. However, Hairston said, "I don't even think death would cause me to miss work," because he has to support his family. Thus, he said he works even if it hurts.

Hairston then reviewed his work history beginning with a job as a painter for "Mr. Johnny" approximately three months after the accident. Hairston said that his boss knew his limitations from the accident. Hairston said he made around $80 a day working as a painter and usually worked about three days per week. He said once he started working for Mr. Johnny he missed about 5 days of work due to his knee injury.

Hairston discussed a May 2010 incident in Pennsylvania in which he jumped out of a bunk bed and landed on his knee. He said that he did go to the emergency room where he had an X-ray. Hairston testified that his knee was swollen and painful from the knee sprain and that it lasted about four weeks. He wore a knee brace and used an ice pack but had no other medical treatment for his knee injury at the time. Hairston said that his knee was back to "100%" in about four weeks. He did not seek any other medical treatment for his knee because it posed no further issues for him, and he was able to resume his normal habits and work doing interior finishing, which included hanging sheetrock and painting.

Hairston described his knee pain following the March 2012 accident. He said his knee would slip in and out of place and was painful. He said even after surgery it continued to be painful. Hairston testified that he is much less active now and cannot engage in any sporting activities like he used to. Hairston said he used to play basketball all the time before the accident but is no longer able to because of the pain and because he is afraid of reinjuring his knee.

On cross-examination, Hairston said he returned to work as a cook one month after his surgery and has never taken a day off of work since then. Opposing counsel extensively reviewed Hairston's employment application with Our Lady of Lourdes for his cook position in which he did not report that he had any limitations, but he did report that he had pain in his knee. Next, Hairston was questioned about the 2010 Pennsylvania incident.

Dr. Joseph R. Bozzelle, an expert in physical medicine and rehabilitation, testified that he first saw Hairston three days after the accident. Hairston complained of headaches, neck pain, left arm and hand pain, left-side mid-back pain, lower back pain, hip, leg pain, and knee pain. Dr. Bozzelle opined that the injuries suffered were related to the March 2012 accident. He stated that Hairston informed him of the 2010 Pennsylvania incident, but that Hairston claimed not to have any ongoing medical treatment at that time because his knee caused him no further problems. Dr. Bozzelle described the various tests conducted over time in relation to Hairston's complaints of headaches and pain. Dr. Bozzelle noted Hairston's lateral patellar subluxation (kneecap not staying properly aligned). Results from an MRI of the knee taken in the fall of 2012 indicated a meniscal tear, tendinosis, tearing of the patellar tendon, and of the chondromalacia patella. In June 2013, Dr. Bozzelle referred Hairston to Dr. Blanda.

Dr. Louis C. Blanda, an orthopaedic surgeon, testified via deposition that he first saw Hairston in October 2013, at which time Hairston complained of neck, lower back, and left knee pain. Dr. Blanda said the neck and low back pain resolved over time but he had lingering problems with his knee. Dr. Blanda testified that Hairston reported the knee injury from the 2010 Pennsylvania incident but claimed he had not had any problems between then and the March 2012 accident. Dr. Blanda recommended surgery after conservative treatment to stop Hairston's knee from slipping out of place (realignment of his patellofemoral mechanism) and to see if he had a meniscal tear. Dr. Blanda reviewed Hairston's medical records from Pennsylvania, which indicated that Hairston had a sprained knee. Dr. Blanda opined that Hairston's subluxating patella was caused by an acute injury, more probably than not resulting from the March 2012 accident.

Dr. Blanda next saw Hairston in March 2014, and again in July 2014. Dr. Blanda continued to recommend surgery but noted that Hairston was afraid to take any time off from work. Dr. Blanda noted that Hairston's patella continued to subluxate and that he had a positive McMurray's test, which indicates a meniscal tear. Hairston returned to Dr. Blanda's office in February and July 2015. He continued to show objective signs of a meniscal tear and patellar subluxation. He continued to wear a knee brace and take pain medication as needed.

Dr. Blanda performed outpatient arthroscopic surgery on April 11, 2016, during which he removed a bucket handle tear (a type of meniscal tear ) and realigned the patella mechanism. Dr. Blanda said that following a surgery of this kind a patient is usually able to ambulate well in about three months, with maximum medical improvement within a year.

Dr. Blanda stated:

Q. And again, the overall need for this surgery, based on the history and everything that you have and the complaints from the patient, you would relate this to the accident of March 2012?
A. Well, the need for the surgery, yeah. I think there may have been some pre-existing issues with his patellofemoral mechanism. Some of it could have been congenital and-which often happens, but trauma is usually the thing that can make it symptomatic enough where it needs surgery. And I think that this trauma is what actually was the icing on the cake. And, you know, you have to add in the fact that he had that meniscal tear too, and that it, by itself, would have required surgery without the patellofemoral problem.

Dr. Blanda released Hairston to return to work on May 26, 2016, with no strenuous activity. In periodic follow up appointments, Hairston continued to exhibit improvements in his symptoms and the functioning of his knee with occasional pain which, Dr. Blanda testified, would not be unexpected following this type of surgery. He rated Hairston's knee impairment at 20%, meaning that his knee was functionally twenty percent worse than another person of the same age without injury to their knee.

Dr. Thomas Butaud, an orthopaedic surgeon, performed an independent medical examination of Hairston in November 2014. Regarding his knee, Dr. Butaud reported that Hairston told him of a previous knee injury that had improved but did not tell him that he jumped out of a bunk bed, had mild to moderate swelling, had an 8 out of 10 pain level, or that the emergency personnel gave him a knee splint.

Dr. Butaud completed an addendum after reviewing the x-ray records from the 2010 ER visit and concluded:

[H]e had what's called a patella alta, and what that basically told me was that there was injury to the patellar tendon that inserts on the inferior pole or the bottom part of the kneecap and inserts into the tibia, meaning that there was a high-riding patella.

Dr. Butaud said that an MRI in 2010 would have been indicated to determine the pathology and then a repair of the tendon tear would follow. Dr. Butaud opined that in the 2012 accident, Hairston re-injured his left knee patellar tendon injury, which should have been operated on "back then." Based on various calculations using the X-ray images obtained from the Pennsylvania hospital, Dr. Butaud opined that there was a patellar tendon injury in 2010. Dr. Butaud was of the opinion that the 2012 knee injury exacerbated the pre-existing knee injury in 2010.

Although defense counsel went to great pains to show that Hairston was hiding the 2010 Pennsylvania incident and that the injury to his knee was rooted in that incident, reasonable people could easily find that not to be the case. Hairston himself testified regarding the 2010 incident and stated that, after a month, he was able to resume his normal activities. Dr. Blanda knew of the incident and did not feel it was significant in terms of the acute injury that occurred in this accident. It is true that Dr. Blanda did not have the benefit of the 2010 X-rays that Dr. Butaud had access to. Dr. Butaud could not determine whether the previous tear was medial or lateral; only that the Pennsylvania X-rays showed a positive McMurray's test.

Furthermore, even if there was an aggravation or exacerbation of a pre-existing injury, it is classic hornbook law that you take the plaintiff as you find them:

[t]he defendant's liability for damages is not mitigated by the fact that the plaintiff's pre-existing physical infirmity was responsible in part for the consequences of the plaintiff's injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.... When the defendant's tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation.

Lasha v. Olin Corp. , 625 So.2d 1002, 1005-06 (La. 1993) (citations omitted).

The plaintiff bears the burden of proving a causal connection between the subject accident and the aggravation of his pre-existing injury. Bienemann v. State Farm Mut. Auto. Ins. Co. , 08-1045 (La.App. 3 Cir. 2/4/09), 3 So.3d 621. The trial court found Hairston's testimony that he had no lingering issues with his knee following the 2010 incident to be credible. The trial court further found credible Hairston and Dr. Blanda's testimony that the 2012 accident caused a serious change in the proper function of Hairston's knee resulting in a change of lifestyle and ongoing issues. Regardless of whether the 2012 accident caused an aggravation and/or exacerbation of a pre-existing injury, the trial court had a reasonable basis for its finding. Furthermore, contrary to the defendants' assertions, Hairston did not conceal the fact that he had injured his knee before the 2012 accident. Accordingly, we find the trial court did not err in finding that the March 2012 accident was the legal cause of the injuries to Hairston's knee requiring surgery. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER ONE

Damages-Lost Wages

Special damages are those damages that may be determined with some degree of certainty and include past and future medical expenses and past and future lost wages. Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541.

Defendants contend the trial court erred in awarding Hairston $240 in lost wages because Hairston did not meet his burden of proof at trial and no reasonable fact finder could hold otherwise. We disagree. A plaintiff's own reasonable testimony is sufficient to prove a lost wages claim. See Driscoll v. Stucker , 04-589 (La. 1/19/05), 893 So.2d 32 ; Wendel v. Travelers Ins. Co. , 14-02 (La.App. 4 Cir. 10/8/14), 151 So.3d 828, writ denied , 14-2346 (La. 2/6/15), 158 So.3d 818 ; and Mathews v. Dousay , 96-858 (La.App. 3 Cir. 1/15/97), 689 So.2d 503.

Hairston testified that he missed between two and five days of work as a painter at which he earned $80 per day cash. Under the circumstances of this particular case, we find the trial court's award of $240 in lost wages was not manifestly erroneous. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR FIVE

Alternatively, defendants argue that even if causation is proven, the trial court erred in awarding general damages which "grossly exceed" the highest reasonable amount Hairston may be awarded.

General Damages

In Wainwright , 774 So.2d 70 at 74 (alteration in original), the standard to be used by an appellate court when reviewing a quantum award was set forth by our supreme court:

The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Moreover,
before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.
Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted).

It is not our role to determine what we feel is an appropriate award. While we may have found this award on the high side, we can only disturb the trier of fact's determination if it abused its discretion. Youn , 623 So.2d 1257. Considering the injuries the trial court attributed to the accident, particularly Hairston's significant knee injury, we do not find it abused its discretion in awarding him $195,000 in general damages. See Lawrence v. Government Employees Ins. Co. , 13-1296 (La.App. 4 Cir. 10/15/14), 151 So.3d 917, writ denied , 14-2382 (La. 2/6/15), 158 So.3d 821.

CONCLUSION

The judgment of the trial court in favor of the plaintiff-appellee, Rickie Hairston, is affirmed. All costs of this appeal are assessed against the defendants-appellants, Baldwin & Lyons, Inc., Oakley Trucking, Inc., and Shermain Montiel Vaughn.

AFFIRMED .

THIBODEAUX, Chief Judge, concurring and assigning reasons.

THIBODEAUX, Chief Judge, concurring.

I agree with the result reached by the majority but do not subscribe to the view that the award "is on the high side."


author: Cooks, Judge.

text:
    Ellen MCDONALD v. PAPS PATHOLOGY GROUP, INC., et al.
    17-539
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Sera H. Russell, III, Attorney at Law, 111 Mercury Street, Lafayette, LA 70503, (337) 237-7171, Attorney for Plaintiff/Appellant: Ellen McDonald
    Peter E. Sperling, Nairda T. Colon, Halley S. Carter, 3700 Energy Centre, 1100 Poydras Street, New Orleans, LA 70163-3700, (504) 599-8180, Attorneys for Defendant/Appellee: Skin Pathology Assoc., Inc.
    Court composed of Sylvia R. Cooks, Elizabeth Pickett, and Phyllis M. Keaty, Judges.
   Cooks, Judge.

FACTS AND PROCEDURAL HISTORY

Ellen McDonald's (Plaintiff's) dermatologist, Dr. Christopher Hubbell (Dr. Hubbell) removed suspicious moles from Plaintiff's skin and sent them to be tested by Skin Pathology Associates, Inc. (Defendant) in July of 2010. The original report on these samples, rendered by dermato-pathologist, Dr. James Elder, M.D. (Dr. Elder), concluded the samples did not indicate melanoma. Over the course of two years Plaintiff became concerned with the reappearance of the moles. Plaintiff visited Dr. Hubbell again in 2012 for further testing. Once again he sent samples to Defendant and upon reviewing the new samples in 2012, Defendant's dermato-pathologist, Dr. Michael K. Jacobs, M.D. (Dr. Jacobs), determined they indicated melanoma. In accordance with Defendant's normal protocol Dr. Jacobs automatically re-evaluated the samples from 2010. Based upon the new information he determined that the 2010 samples indicated melanoma. Defendant alerted Plaintiff's doctor and informed him of the new findings including Dr. Elder's and Dr. Jacob's conclusion that based upon their reviewing the 2012 samples, they both agreed the 2010 samples also revealed signs of melanoma.

Plaintiff filed suit against Defendant asserting a claim for medical malpractice based upon an allegation of misdiagnosis of melanoma. Plaintiff deposed Defendant's two dermato-pathologists. Defendant propounded discovery seeking the name of any expert witnesses Plaintiff would be using at trial. Plaintiff responded that she had not chosen any expert at that time. She consulted with and deposed medical experts in the field of oncology but none in the specialty of dermato-pathology. More than a year after receiving Plaintiff's response to discovery Defendants moved for summary judgment and supported their motion with an affidavit from a dermato-pathologist, Dr. Clay J. Cockerell, M.D. (Dr. Cockerell), who stated that, in his professional opinion, after reviewing the samples taken in 2010, he "agree[ed] with the original diagnosis made by Dr. James Elder of Skin Pathology Associates, Inc. of 'Clark's nevus, compound (dysplastic nevus ).' Additionally, based upon [his] review of these slides, [he] saw no evidence of melanoma and would not have recommended excision." He further stated, "At all pertinent times thereto, the treatment and care rendered by Dr. James Elder and Skin Pathology Associates, Inc. met the applicable Standard of Care for Dermatopathologists."

At the close of the hearing on Defendant's motion for summary judgment Plaintiff was given thirty days to retain the services of a dermato-pathologist as her expert witness, failing which, her case would be dismissed with prejudice. The trial court explained that the thirty-day period was for the purpose of obtaining the services of an expert witness and identifying that witness to the court. It further explained that the expert witness would not have to be ready at that time to offer testimony. Plaintiff made no attempt to engage the services of such an expert witness within the time limit imposed by the trial court. In both her memorandum in opposition to Defendant's motion for summary judgment, and in brief to this court, Plaintiff indicates she does not believe it necessary to retain the services of a dermato-pathologist. After the passage of the thirty-day time period Defendant moved ex-parte for a judgment granting summary judgment. The trial court granted Defendants' motion for summary judgment dismissing Plaintiff's claims with prejudice. Plaintiff appeals assigning one assignment of error:

The District Court erred in granting summary judgment to defendant, Skin Pathology Associates, Inc. in the face of vigorous opposition by the plaintiffs (sic), including affidavit and depositions which created a serious question of fact that could only be decided by a jury.

LEGAL ANALYSIS

Plaintiff asserts she has met her burden on summary judgment by submitting the affidavits of Dr. Hubbell and his Physician's Assistant, Thomas A. Briscoe, (PA Briscoe) both of whom attest to the fact that Dr. Elder told them his original diagnosis of "no melanoma" was in error. Dr. Hubbell states in his affidavit:

6. Subsequent to the April 2012 biopsy disclosing frank melanoma pathology report from the biopsy tissue of the right lateral buttocks, the pathologist Dr. Michael K. Jacobs, called and spoke to my PA, Thomas Briscoe, who informed me that Dr. Jacobs had indicated to PA Briscoe that upon review of the original biopsy specimen taken in July 2010 of the right lateral buttocks that, in fact, there was Melanoma present and that the diagnosis given originally in July 2010 was erroneous; said diagnosis in July 2010 being a reading of the specimen by Dr. James Elder, which he reported in 2010 as being minimally dysplastic (Clark's) nevus.
7. Upon being informed by PA Briscoe of said call by Dr. Jacobs, I, Dr. Christopher Hubbell, called Dr. Jacobs and spoke to Dr. Jacobs. During my telephone conversation with Dr. Jacobs, Dr. Jacobs confirmed that there had been an error in the original reading performed in July of 2010 and the report issued on the pathological opinion for said tissue.
8. Following my phone call with Dr. Jacobs, Dr. Elder called for me, and I spoke to Dr. James Elder. Dr. Elder apologized for the erroneous read and thus, erroneous pathology opinion contained in the pathology report for July 2010 tissue samples from the biopsy site of the right lateral buttocks. Dr. Elder told me that the lesion of the right lateral buttocks, upon his re-review of the original specimen from 2010, said re-review being accomplished in 2012, was indeed Melanoma and that this had been erroneously reported in 2010 as a minimally dysplastic (Clark's) nevus.

The affidavit of PA Briscoe is in accord with the representations in Dr. Hubbell's affidavit.

Plaintiff, in opposition to the motion for summary judgment, also submitted the deposition of Dr. Elder who testified he never talked to PA Briscoe about this matter and never discussed the 2010 slides with Dr. Hubbell. Plaintiff maintains these contradictions establish genuine issues of fact that cannot be resolved on summary judgment. Plaintiff also submitted the deposition of Dr. Jacobs and the affidavit of Dr. Taylor Curiel, MD oncologist, along with the depositions of Plaintiff's treating physicians at M.D. Anderson, Dr. Adi Diab, M.D. (Dr. Diab) and Dr. Nicholas E. Papadopoulos M.D. (Dr. Papadopoulos), for the purpose of showing that "Ms. McDonald would have had a better result had her melanoma been properly diagnosed in 2010 rather than being improperly diagnosed then, and not properly diagnosed until 2012."

Plaintiff asserts that no expert testimony is required in this case to prove Dr. Elder breached the standard of care. She relies on the state supreme court's decisions in Schultz v. Guoth , 10-343 (La. 1/19/11), 57 So.3d 1002, and Pfiffner v. Correa , 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228, for the proposition that she does not need an expert witness in this case to prove a breach of the standard of care because the lay fact finder "can infer negligence from the facts" testified to by Defendant or Defendant's expert witnesses. The discussion in Schultz concerning the instances in which medical expert witnesses are not necessary does not support Plaintiff's argument. In fact, the supreme court's holding in Schultz indicates just the opposite result in these circumstances.

Plaintiff places much emphasis on the allegation that Dr. Elder told Dr. Hubble he was in error regarding the 2010 diagnosis but now denies he said this to Dr. Hubble. This, says Plaintiff, is a pivotal issue of material fact to be determined by a jury in a trial on the merits.

Louisiana law sets forth the burden of proof in a medical malpractice case:

In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794 (emphasis added).

In Schultz, 57 So.3d at 1006, the Louisiana State Supreme Court explained "[t]o establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury."

Defendants filed a motion for summary judgment, and in support of their motion filed the affidavit of their expert in the specialized field of dermato-pathology, Dr. Cockerell. He stated: (1) Dr. Elder's reading of the 2010 samples did not fall below the standard of care for dermato-pathologists, and (2) his reading of the samples as an expert in the field would have been the same as Dr. Elder's in 2010.

Plaintiff admitted she had not retained the services of an expert witness in the field of dermato-pathology. Additionally, she failed to submit any evidence regarding her ability to establish the standard of care for a dermato-pathologist examining her skin samples in 2010, or to demonstrate that Dr. Elder breached that standard of care when he concluded in 2010 there was no indication of melanoma.

Plaintiff's reliance on the disputed facts concerning the alleged conversation between Dr. Hubbell and/or PA Briscoe with Dr. Elder and Dr. Jacobs as an issue precluding summary judgment is misplaced. Defendant offered the testimony of its expert witness in the specialized field of dermato-pathology who opines that Dr. Elder did not breach the standard of care in his reading of the 2010 samples and further states he would have reached the same conclusion in 2010. This shifted the burden to Plaintiff to come forward with evidence she can produce at trial concerning Dr. Elder's breach of the standard of care in his actions in 2010. See Schultz , 57 So.3d at 1006. The only evidence Plaintiff shows on summary judgment to rebut Defendant's expert testimony is the fact that Dr. Jacobs determined in 2012, upon re-reading the 2010 samples with the benefit of hindsight, that the original reading by Dr. Elder in 2010 is now viewed as erroneous. Error does not always equate to malpractice and malpractice is not determined in hindsight.

As to the diagnostic duties required of a dentist or a physician, an error of diagnosis is not malpractice per se. A physician or dentist is not obligated to always be correct in making a diagnosis. A diagnosis is an act of professional judgment and, in case of a misdiagnosis, malpractice exists only if it results from a failure by a
physician or dentist to exercise the standard or degree of care in diagnosing which would have been exercised by a member of his profession in good standing in his locality, under similar circumstances. Borne v. Brumfield , 363 So.2d 79 (La.App. 4th Cir. 1978).
Also, 70 C.J.S. Physicians and Surgeons § 48, page 961, states:
"... Whether a physician was negligent in making a diagnosis must be determined in light of conditions existing and facts known at the time thereof, and not in the light of knowledge gained through subsequent developments ..."

Tillman v. Lawson , 417 So.2d 111, 114 (La.App. 3 Cir. 1982). See also Slavich v. Knox , 99-1540 (La.App. 4 Cir. 12/15/99), 750 So.2d 301.

To survive this motion for summary judgment Plaintiff was required to demonstrate that she could offer expert testimony in the field of dermato-pathology that would dispute the testimony of Defendant's expert. Id. Plaintiff's own witness, Dr. Diab, board certified in medical oncology and internal medicine, plainly stated in his deposition he cannot offer an expert opinion regarding the reading of the 2010 slides as only a dermato-pathologist is qualified to do so:

Q. If you're called to testify at the trial of this matter, I assume you're not going to render opinions regarding the standard of care of pathologists.
A. Absolutely not.
....
Q. Are you going to render any opinions that the original pathology showed melanoma or not?
A. That's not my area of expertise. So I won't do that.

Dr. Papadopoulos likewise testified that as a medical oncologist he is not qualified to interpret the 2010 slides as such "requires a pathologist."

Despite this information in hand, and despite the trial judge indicating that such expert testimony was necessary, Plaintiff continued to assert that such an expert witness was not necessary. Plaintiff made no attempt to procure the services of such an expert within the time frame allowed by the trial judge to avoid dismissal. "After an opportunity for adequate discovery, 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." La.Code Civ.P. art 966(A)(3).

Plaintiff failed to show at the hearing on the motion for summary judgment that she can present any evidence at trial to: (1) establish the standard of care in 2010 that applies to Dr. Elder's reading of the slides and (2) show Dr. Elder breached the standard of care in making his diagnosis in 2010. Without such proof Plaintiff's case fails as a matter of law.

We find no error in the trial court's ruling granting Defendant's motion for summary judgment and dismissing Plaintiff's case with prejudice. The judgment of the trial court is affirmed and all costs of this appeal are assessed against Plaintiff.

AFFIRMED.

      The brief filed by Plaintiff's counsel erroneously refers to "Ellen McDonald and her husband" as "Plaintiffs-Appellants." The suit contained in the record identifies only Ellen McDonald as a party Plaintiff. The suit was amended once but Ellen McDonald's husband was not added as a party to the suit. Therefore, this opinion will refer to Ellen McDonald as Plaintiff.


author: KYZAR, Judge.

text:
    STATE of Louisiana v. Kentrell D. MCELROY
    17-826
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Julie C. Tizzard, 700 Camp Street, Suite 101, New Orleans, LA 70130, (504) 529-3774, COUNSEL FOR DEFENDANT/APPELLANT: Kentrell D. McElroy
    Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Eleventh Judicial District, P. O. Box 1557, Many, LA 71449, (318) 256-6246, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The defendant, Kentrell D. McElroy, appeals his convictions for armed robbery and aggravated kidnapping. For the following reasons, we affirm the conviction for armed robbery, but vacate the conviction for aggravated kidnapping.

DISCUSSION OF THE RECORD

The defendant was charged by bill of information filed on November 12, 2015, with aggravated kidnapping, a violation of La.R.S. 14:44, and armed robbery, a violation of La.R.S. 14:64. After waiving his right to trial by jury, a bench trial was held on January 17, 2017.

The evidence at trial established that the victim, Latasha McKinney, a shift manager at the Many, Louisiana Pizza Hut restaurant, was taking a deposit to the bank on August 24, 2015, when a man, who was hiding in the backseat of her car, pointed a gun at her face and ordered her to keep driving. As she drove on, she noticed a silver car following her car. The defendant subsequently took Ms. McKinney's phone and the cash from the money bag and threw five twenty-dollar bills at her as he exited her car. He then got into the silver car, which drove off. The evidence established that more than $3,000.00 was taken from Ms. McKinney.

Ms. McKinney first identified the defendant from a photographic lineup. She later identified him as the perpetrator during her trial testimony. At the close of the bench trial, the trial court found the defendant guilty of both aggravated kidnapping and armed robbery.

The defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. He was then sentenced to life in prison at hard labor, without the benefit of probation, parole, or suspension of sentence, on the aggravated kidnapping conviction, and twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, on the armed robbery conviction, with both sentences ordered to run concurrently.

On appeal, the defendant argues that the charge of aggravated kidnapping was improperly instituted by bill of information and that the evidence was insufficient to prove that he committed each of the offenses.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent, one of which is directly raised by the defendant herein and is addressed in our discussion of his first assignment of error.

In addition, the defendant waived his right to trial by jury and elected to be tried by a judge alone. While a written waiver was filed on October 18, 2016, it was signed only by counsel for the defendant and not signed by the defendant himself, as required by La.Code Crim.P. art. 780. In addition, the written waiver referenced only the charge of aggravated kidnapping. However, the October 27, 2016 court minutes indicate that the defendant and his attorney were present in court when the trial court personally addressed the defendant concerning his right to a jury trial and the waiver thereof. Thereafter, the trial court found that the defendant had "knowingly, intelligently and voluntarily waived his right to a trial by jury[;]" thus, rendering the error harmless. State v. Bell , 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830 ; State v. Brundy , 15-1233, 16-263 (La.App. 4 Cir. 8/24/16), 198 So.3d 1247, writ denied , 16-1748 (La. 6/16/17), 220 So.3d 755.

OPINION

Improper Charging Instrument

In his first assignment of error, the defendant contends that the offense of aggravated kidnapping was improperly charged by bill of information.

The defendant was charged via a single bill of information with both armed robbery and aggravated kidnapping. Louisiana Constitution Article 1, § 15 provides that "no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury." Similarly, La.Code Crim.P. art. 382(A) provides that "[a] prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury." Aggravated kidnapping is punishable by life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. La.R.S. 14:44. Therefore, the institution of prosecution for this offense should have been by grand jury indictment. The failure to proceed by grand jury indictment is a "fatal defect." State v. Underdonk , 11-1598, p. 7 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, 374, writ denied , 12-910 (La. 10/8/12), 98 So.3d 848 ; State v. Engel , 13-519, p. 3 (La.App. 5 Cir. 12/19/13), 131 So.3d 1017, 1018. Consequently, this requires reversal of the defendant's conviction for aggravated kidnapping.

We now turn to whether the remaining conviction for armed robbery must also be vacated as a result of the inclusion of the aggravated kidnapping charge in the bill of information. In State v. Donahue , 355 So.2d 247 (La.1978), the institution of prosecution for second degree murder and armed robbery was by bill of information.

The supreme court annulled the second degree murder conviction and discussed the armed robbery conviction as follows:

Armed robbery is neither a capital crime nor a crime punishable by life imprisonment. La.R.S. 14:64 ; La.Const. art. 1, § 15 (1974). It may be charged by grand jury indictment or by bill of information. State v. Williams , 341 So.2d 370 (La.1976) ; State v. Bradford , 298 So.2d 781 (La.1974). It is clear, therefore, that had the armed robbery charge been brought alone, it could properly have been brought by bill of information.
Moreover, if the second degree murder had been quashed before trial began, the prosecution for armed robbery could have continued on the valid robbery count. This is so because each count in a multiple-count charge independently charges an offense. It is this principle which underlies the entire procedure whereby offenses are joined in a single count, as explained in Wharton's Criminal Procedure, as follows:
"Each count, being in legal contemplation a separate indictment or information must contain all the allegations necessary to constitute the offense sought to be charged in such count, for it is upon the principle of the joinder of offenses that the joinder of counts is allowed. In determining whether an indictment or information is sufficient, each count must be treated as a whole, and the jury is not required to treat such an indictment or information as an indivisible unit." 2 Wharton's Crim.Proc. § 295, pp. 138-39 (12th ed., Torcia ed., 1975)[.]
Thus, if one count of a two-count indictment or information is invalid, the entire accusation will not be quashed, but, instead, only the defective counts will be quashed. See Selvester v. United States , 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029 (1898). Moreover, Louisiana law allows the granting of partial relief in response to a motion to quash. State v. Mitchell , 319 So.2d 357 (La.1975).
The only real question, then, is whether the charge and evidence of second degree murder presented to the jury simultaneously with the armed robbery charge so infected the otherwise properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We believe that it did not.
In the first place, the two crimes arose out of the same transaction, and facts as to each would have been respectively admissible at separate trials of the other as part of the res gestae. R.S. 15:447, 448. This is not a situation where the counts could not have been joined and where such misjoinder resulted in inherent prejudice to defendant on each charge. See State v. McZeal , 352 So.2d 592 (La.1977). Here, because of a technical but fatal deficiency in one count of the accusation defendant should not have been tried on that count. Under these circumstances, we hold that our quashing of the second degree murder count post trial does not affect the otherwise valid armed robbery charge and trial, and that the conviction and sentence for the crime of armed robbery should be allowed to stand.
Thus, while we nullify defendant's conviction and sentence for second degree murder, we find that this defect does not infect the conviction and sentence for armed robbery.

Id. at 249-50 (footnote omitted); see also Underdonk , 92 So.3d 369.

Thus, we conclude that the defective bill of information as to the aggravated kidnapping count nullifies only the defendant's conviction for that offense. If the armed robbery charge had been brought alone, it could have properly been charged by bill of information. Moreover, had the aggravated kidnapping charge been quashed or severed prior to trial, the prosecution for armed robbery could have continued separately.

The germane issue is whether the evidence of aggravated kidnapping presented concurrently with that of the armed robbery so infected the properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We find that it does not.

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae , that "constitutes an integral part of the act or transaction that is the subject of the present proceeding." Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence "to insure that 'the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place' " State v. Colomb , 98-2813, p. 3 (La. 10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala , 398 So.2d 1093, 1098 (La.1981) ). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar , 414 So.2d 741, 748 (La.1982) ; State v. Kimble , 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae ) evidence in Louisiana incorporates a rule of narrative completeness without which the state's case would lose its "narrative momentum and cohesiveness, 'with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.' " Colomb , 747 So.2d at 1076 (quoting Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ).

State v. Taylor , 01-1638, pp. 10-11 (La. 1/14/03), 838 So.2d 729, 741-42, cert. denied , 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

Here, the two charges arose out of the same transaction and evidence of the aggravated kidnapping was intertwined with the armed robbery to such an extent that the State could not have accurately presented its case for armed robbery without reference to the aggravated kidnapping. Although we must annul the conviction for aggravated kidnapping, we will now proceed to address the defendant's second assignment of error as to the sufficiency of the evidence in regard to his conviction of armed robbery.

Sufficiency of the Evidence

In his second assignment of error, the defendant contends the evidence was insufficient to support each of the convictions. As a result of the resolution of his first assignment of error vacating the aggravated kidnapping conviction, we review the sufficiency of evidence as to the conviction for armed robbery only.

"In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville , 448 So.2d 676, 678 (La.1984). Furthermore, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary , 03-3067 (La. 4/24/06), 931 So.2d 297 ; State v. Neal , 00-0674 (La. 6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary , 03-3067 at p. 18, 931 So.2d at 311 ; Neal , 00-0674 at p. 11, 796 So.2d at 658 ; State v. Mussall , 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright , 98-0398, p. 22 (La. 4/11/00), 776 So.2d 1134, 1147.

State v. Hughes , 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (alteration in original).

Armed robbery is defined in La.R.S. 14:64(A), as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." Therefore, the State was required to prove the following elements: The defendant engaged in the taking of anything of value, from the possession or immediate control of another, by use of force or intimidation, and while armed with a dangerous weapon. State v. Johnson , 440 So.2d 197 (La.App. 3 Cir. 1983), writ denied , 444 So.2d 1240 (La.1984)

The sole issue in this assignment of error is the proof of the defendant's identity as the perpetrator. The defendant contends that because the State failed to thoroughly investigate, the only evidence in the case was a single eye-witness identification of the perpetrator, who was sitting in the backseat of a car while the victim was driving. The defendant further argues:

While there is nothing in the transcript to indicate that the out-of-court identification itself was impermissibly suggestive, the detective did develop [the defendant] as a suspect due to his face being plastered all over the news and social media as a suspect in an unrelated crime. A crime that [he] claimed over and over to know nothing about. An unrelated crime whose only similarity was the involvement of the mysterious silver Charger that the police made no attempt whatsoever to locate the owner of. Based on the foregoing, I think it can be argued that the identification was suggestive for the purpose of determining the reliability of the identification for sufficiency purposes. Accordingly, we maintain based on the Manson factors that this suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Manson v. [Brathwaite ] Braithwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; State v. Prudholm , 446 So.2d 729 (La.1984) ; State v. Valentine , 570 So.2d 533 (La.App. 4th Cir.1990).

The defendant then discusses the evidence as to the five Manson factors: 1) the witness's opportunity to view the defendant at the time the crime was committed; 2) the degree of attention paid by the witness during the commission of the crime; 3) the accuracy of any prior description; 4) the level of the witness's certainty displayed at the time of the identification; and 5) the length of time elapsed between the crime and the identification. Manson v. Braithwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The defendant's counsel then concludes, stating that she is "astounded" the State brought the case to trial without attempting to confirm the identity of the perpetrator through DNA, especially considering he was facing a life sentence. Counsel claims that no reasonable jurist, viewing the evidence in the light most favorable to the prosecution, could have found that the State met its burden of proof. We disagree.

In State v. Naas , 409 So.2d 535 (La.1981), cert. denied , 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982) (on rehearing), the defendant argued that there was error in the introduction of testimony regarding a pretrial photographic lineup and an in-court identification. The supreme court held: "At no time during the trial did defendant object to the admission of the identification evidence or testimony nor was a motion to suppress the identification filed. Thus, defendant has waived his right to assert this assignment. C.Cr.P. 841." Id. at 547.

In State v. Boyance , 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied , 06-1285 (La. 11/22/06), 942 So.2d 553, the defendant asserted that his convictions were based on insufficient evidence, particularly the witness's identification of him as the person who committed the robberies. He questioned the witness's identification because she allegedly told her son that the police identified the robber. The defendant argued that this court had to determine whether there was a suggestive identification and, if so, whether the suggestive identification presented a substantial likelihood of misidentification. This court held:

"A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal." State v. Johnson , 95-711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 769, writ
denied , 96-0082 (La. 3/29/96), 670 So.2d 1236. See also La.Code Crim.P. arts. 703(F) and 841(A). The record reveals that the defendant did not file a pre-trial motion to suppress the witnesses' identifications or object to its admissibility at trial. Consequently, as the defendant failed to preserve this issue, we do not review it on appeal.

Id. at 440 ; see also State v. Mitchell , 13-426 (La.App. 3 Cir. 11/6/13), 125 So.3d 586, writ denied , 14-102 (La. 6/20/14), 141 So.3d 807.

In State v. Brumfield , 96-2667 (La. 10/20/98), 737 So.2d 660, cert. denied , 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999), the defendant argued that the trial court should not have admitted the testimony of a store manager who survived a shooting because her recollection of the crime and her identification of a co-defendant as one of the assailants occurred only after she had been hypnotized by the police. Evidence indicated that the manager was escorted to the bank by an off-duty police officer working security detail. Immediately after the assailants fired a barrage of shots into the police car, the co-defendant reached into the car to get the bag of money and was face-to-face with the manager. Although the manager had received eleven bullet wounds, she was able to drive away. When the manager immediately reported the crime to the 911 operator, she could not describe either of the assailants. Later, she gave a detailed description of the assailant who reached into the car, and, at trial, she gave the jury a detailed description of one of the perpetrators. There was no objection to the testimony or the identification. The supreme court found that the defendant waived any claim based on the erroneous admission of this evidence.

The defendant in the case at bar did not file a motion to suppress the photographic line-up, did not object when the line-up was introduced as an exhibit at trial, and did not object to the trial testimony of Assistant Chief of Police Dewayne Brumley, of the Many Police Department, who prepared the photographic lineup, or the testimony of Ms. McKinney, the victim. Accordingly, the defendant waived review of this assignment of error.

For additional reasons, we find that the defendant's assignment of error lacks merit. We conclude that the evidence was sufficient to support the finding of the trial court that the defendant was the person who committed the armed robbery. Ms. McKinney identified the defendant as the perpetrator, both in a lineup and in court. Additionally, still shots from video footage taken from Radio Shack and the Housing Authority, both locations Ms. McKinney passed or stopped at while driving with the defendant in the backseat of her car, showed Ms. McKinney's vehicle followed by a gray Dodge Charger, corroborating her other testimony.

A positive identification by only one witness is sufficient to support a conviction. [ State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649 ]; See Mussall , 523 So.2d 1305, 1311 (La.1988). A victim's or witness's testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Davis , 02-1043, p. 3 (La. 6/27/03), 848 So.2d 557, 559. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Robinson , 02-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79.

State v. Dorsey , 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 633-34, cert. denied , 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).

The defendant argues that because there was no physical evidence presented, the identification issue becomes of greater importance and should receive additional scrutiny. While no DNA was found in this case and there was little physical evidence, the parties stipulated that if Richard Beighley, an expert from the North Louisiana Criminalistics Laboratory, was called to testify, he would state that he did fingerprint comparisons of the defendant and three Pizza Hut employees with the money bag and deposit slips but, due to the material from which the bag and deposit slips were made, he was not able to get any "prints from anyone, even individuals that we know touched the bag."

Despite the lack of physical evidence, there was other evidence supporting the victim's identification of the defendant as the perpetrator. The defendant denied he committed the robbery and denied that he owned or had access to a handgun. However, despite denying involvement, the defendant offered to make payment for the loss from the robbery when questioned by Detective Winfred McDowell of the Natchitoches Parish Sheriff's Department, when he was arrested in Natchitoches on the Sabine Parish warrant. In addition, the evidence established that approximately $3,000.00 was taken, that it was taken by force or intimidation, and while the defendant was armed with a dangerous weapon, as clearly shown in the victim's testimony that she saw him, saw the gun pointed to her face, and heard the defendant state, "Do you see this gun? I'll shoot you." The defendant testified at trial, again denying his involvement. On cross examination, however, he admitted that he had previously been convicted of the attempted armed robbery of a Dollar General store.

The trial court clearly believed the testimony of Ms. McKinney, who identified the defendant, and other evidence supported that decision as well. Thus, this court cannot second-guess the trial court's determination. Hughes , 943 So.2d 1047. Accordingly, we find that the evidence was sufficient to support the defendant's conviction for armed robbery.

DISPOSITION

For the foregoing reasons, the defendant's conviction for armed robbery is affirmed, but his conviction for aggravated kidnapping is vacated.

AFFIRMED IN PART AND VACATED IN PART.