author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Lemerick Vernell CHRISTOPHER, Appellant
    No. 50,943-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JERRY L. JONES, District Attorney, NEAL G. JOHNSON, Assistant District Attorney, Counsel for Appellee
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

hThe defendant, Lemerick Vernell Christopher, was indicted in a superseding bill with charges of attempted second degree murder, possession of a firearm by a convicted felon and resisting an officer. A jury convicted as charged on the first two charges. The state dismissed the resisting an officer charge. Christopher was sentenced to 30 years at hard labor without benefit of probation, parole or suspension of sentence on the attempted murder conviction and 15 years at hard labor without benefits on the felony possession of a firearm conviction; the sentences were ordered to be served consecutively. Christopher’s motion to reconsider the sentences was denied. He now appeals, arguing that the evidence was insufficient to sustain the conviction for attempted second degree murder and that his sentences are excessive. For the following reasons, we affirm

FACTS

On September 12, 2014, the victim, Mar-lando Honeycutt, was shot at point blank range in the face and chest by the defendant on the driveway of the Wonderland Daycare Center in Monroe. The incident occurred at 6:30 a.m. while Honeycutt and Shemika Clemmons, formerly the spouse of the defendant and divorced since 2011, were dropping off their children at the daycare. The defendant is the biological father of Shemika’s children who were born during his marriage to Shemika. The victim, Honeycutt, rode in the front passenger side of Shemika’s vehicle.

When Shemika pulled into the daycare driveway, the defendant, who lived in his mother’s house next door, walked out of the carport as Shemika pulled into the driveway. It was not unusual for Christopher to visit with his children while they were being dropped off in the mornings. However, on [ 2this particular day, Shemika was running late and ignored Christopher’s request to bring the children to him.

There was a history of “bad blood” between Christopher and Honeycutt. Honey-cutt told Shemika to take the children into the daycare, and he warned Christopher not to come up to the vehicle. Before entering the daycare, Shemika told Honey-cutt not to go on Christopher’s mother’s property. She testified that she told him: “do not go into that yard because that’s what he wants you to do. He wants you to be on his territory so he can say you overstepped your boundary.”

Honeycutt got out of the vehicle and walked to the edge of the parking lot but did not go onto the grass of the defendant’s mother’s yard. He testified at trial that Christopher called him names, but he denied that he threatened Christopher in any way. According to Honeycutt, Christopher told him, “I’ll be back. I got something for you. And I’ll be right back.” He went inside his mother’s house and returned. He walked up to Honeycutt and pulled a silver and black handgun from behind his back and shot Honeycutt. Ho-neycutt testified: “He pulled the gun and all I heard was my ears ring. And he shot me.” Christopher shot Honeycutt two times, once in the face and once in the chest. Honeycutt described Christopher’s demeanor as agitated, but calm, and testified that he just “pulled a gun out and shot me.”

Shemika had heard the two gunshots and ran outside to find Honeycutt covered in blood. She testified that she saw Christopher in his mother’s yard and that he said to her, “B, I kill you too.” Shemika helped Honeycutt into the building. Ho-neycutt testified that he was hospitalized for two weeks and can only chew on one side. Doctors were unable to remove | ,seither of the bullets; one is lodged in Honeycutt’s jaw and one in his chest. Ho-neycutt also testified that he was unarmed that morning, does not own a gun and would likely not know how to shoot one.

Mya Williams was an eyewitness to the shooting which occurred immediately after she checked-in her two-year-old at the daycare. The prosecutor asked her what happened next, and she responded:

A: When I was walking out of the daycare it was looking like the two were slowing approaching each other. But once they saw me when I was walking out they kind of separated apart. And that’s when Mr. Honeycutt, eh was saying no, no, not in front of her. So I proceeded to my car. And once I got inside of my car, I hadn’t even cranked my car yet, that’s when I heard two shots that Mr. Christopher fired.
Q: Did you see Mr. Christopher with a gun?
A: Yes.
Q: Did you see him produce that gun?
A: Yes.
Q: Where did he produce it from?
A: Out of his back pocket.
Q: How do you know that?
A: I looked at him. Once I got in my car and I looked up I saw him pull the gun from his back pocket.
Q: Okay. And what did he do with it?
A: He shot twice at Mr. Honeycutt.

Mya described Christopher’s demeanor as calm. She farther testified that Honeycutt made no threatening gestures or motions toward Christopher. Mya started her car, drove around the corner and called 911.

Officer Demario Graves, with the Monroe Police Department, testified that he was the third or fourth officer to arrive at the scene. A bystander told Officer Graves “there he go” and directed him between two houses where the defendant had fled. Officer Graves pursued Christopher |4on foot, jumped a gate and saw a silver revolver with a black handle on the ground. He identified the handgun at trial.

Detective Mike Fendall, the lead investigator on the case, took a statement from Christopher in which Christopher admitted to shooting Honeycutt. Det. Fendall testified that there were two spent slugs in the revolver secured by Officer Graves and that the victim was shot twice.

■ Monroe Police Sergeant James Willis testified that he was one of the officers involved in the foot pursuit of Christopher. Sgt. Willis testified that he encountered a resident of one of the houses in the neighborhood who told him that the man he was chasing was in his backyard. Sgt. Willis found Christopher lying halfway underneath a storage building behind the residence. Christopher was arrested without incident.

The only witness called by the defense was Verdell Christopher, the defendant’s brother. Verdell testified that he also lives with his mother. He said he was asleep on the couch on the morning of the shooting and was awakened by a door slamming. He testified that he heard a man say, “you’re not gonna see your fucking kids,” and heard Christopher respond, “hey I ain’t got no business with you.” Verdell stated he looked out of the window, but did not have a clear line of sight because of the tree and bushes. He heard the men arguing and cursing. After the shots, Christopher ran back into the house, and Verdell saw Shemika with the victim yelling for help.

On cross-examination, the prosecution impeached Verdell’s testimony with his prior statement to police officers the morning of the shooting in which he said he heard and saw nothing because he was asleep on the couch and “just woke up.” Verdell insisted that the officer’s report was inaccurate.

IsThe defense rested. Before closing arguments, the defense and state stipulated that Christopher had a prior conviction for aggravated second degree battery which, pursuant to La. R.S. 14:95.1, prohibits Christopher from possessing a firearm. The jury found Christopher guilty of attempted second degree murder and illegal possession of a firearm by a convicted felon.

The presentence investigation (“PSI”) report ordered by the judge indicates that the defendant was previously convicted for aggravated battery in 2012 for shooting Honeycutt, the same victim, in the leg. The trial court considered the PSI report and sentenced Christopher to consecutive sentences of 30 and 15 years, both at hard labor and without benefits. This appeal followed in which Christopher raises two assignments of error.

DISCUSSION

By his first assignment of error, the defendant contends that the evidence was insufficient to support a conviction for attempted second degree murder. While he admits that he shot Honeycutt, Christopher maintains that the state failed to prove that he had the requisite intent to sustain a conviction for attempted second degree murder. He contends that there is a reasonable theory that-precludes a finding of intent, specifically, that Honeycutt was the aggressor and he was acting out of sudden passion and heat of blood caused by immediate provocation depriving him of his self-control and cool reflection. La. R.S. 14:31(A)(1). Christopher argues that this one reasonable theory should have precluded the jury from finding him guilty of attempted second degree murder.

| nThe standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/6/09), 21 So.3d 299.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. [7A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Hill, 47,568 (La.App. 2 Cir. 9/26/12), 106 So.3d 617.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant’s actions. State v. Thornton, 47,598 (La.App. 2 Cir. 3/13/13), 111 So.3d 1130. Specific intent to kill or inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Murray, 49,418 (La.App. 2 Cir. 1/14/15), 161 So.3d 918.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome, 49,004 (La.App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied, 14-0990 (La. 1/16/15), 157 So.3d 1127. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Gipson, 45,121 (La.App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So.3d 827; State v. Broome, supra.

Second degree murder is defined in La. R.S. 14:30.1. The statute states, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm;

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), 835 So.2d 434; State v. Logan, 45,136 (La.App. 2 Cir. 4/14/10), 34 So.3d 528, writ denied, 10-1099 (La. 11/5/10), 50 So.3d 812. Proof of specific intent to inflict great bodily harm is insufficient. State v. Logan, supra.

Although the state presented eyewitness testimony, which is direct evidence of the events immediately before and including the shooting, there was also circumstantial evidence regarding the state of mind of the defendant. Taken together, the jury concluded that the state proved the elements of second degree murder, including specific intent to kill, beyond a reasonable doubt.

Specific intent may be inferred when a wound is inflicted at close range, such as shooting someone in the head, State v. Boyer, 406 So.2d 143 (La. 1981), or when a firearm is pointed directly at the victim, State v. Procell, 365 So.2d 484 (La. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). Other circumstances which may support an inference in such close range shooting cases are evidence of flight to avoid apprehension and a previous acrimonious relationship between the shooter |fland the victim. State v. Davies, 350 So.2d 586 (La. 1977); State v. Mart, 352 So.2d 678 (La. 1977).

Defendant makes two arguments: First, he argues that the jury incorrectly found the element of specific intent because Ho-neycutt provoked him by confronting him and not allowing him to see his children. He alleges that Honeycutt’s contrary testimony was untruthful. Second, defendant contends that he acted “in sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control and cool reflection,” citing La. R.S. 14:31 (A)(1) which defines manslaughter.

As to the first argument the defendant makes, i.e. he was provoked by Ho-neycutt, the only testimony contrary to Honeycutt’s testimony and testimony from other witnesses regarding whether Honey-cutt provoked the defendant came from the defendant’s brother. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Hill, supra. In this instance, the jury obviously found Honey-cutt’s testimony and that of the other witnesses to be more credible. As stated above, an appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, supra. We accord great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, supra; State v. Hill, supra.

As to the second argument made by defendant, “ ‘heat of blood’ and ‘sudden passion’ are not elements of the offense of manslaughter, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide,” such as second degree murder. State v. Tompkins, 403 So.2d 644 (La. 6/22/1981). The provocation must be sufficient to deprive an average person of his self-control and cool reflection.

After the defendant allegedly called Ho-neycutt some names, he told Honeycutt that he had something for him, and he went into his mother’s house, retrieved a revolver and returned with the weapon concealed in his back pocket. He then walked up to Honeycutt, pulled the revolver from his back pocket and shot Honey-cutt at point blank range in the face and chest. We are aware that the two men had a long-standing acrimonious relationship likely arising from Honeycutt’s relationship defendant’s former wife, Shemika Clemmons. Disputes involving new relationships and children from prior marriages are common and can arouse great passions, but are not an excuse for murder. The record does not support a finding that Honeycutt provoked the defendant and that under the circumstances in this case an average person would be deprived of self-control. Moreover, Christopher fled the scene, discarded the weapon during the chase and attempted to evade apprehension by hiding under a storage building.

After review, we conclude that there was sufficient direct and circumstantial evidence upon which the jury could infer that Christopher had specific intent to kill Ho-neycutt. We also conclude that the jury correctly concluded that that there was no provocation or that any provocation created by the circumstances of the incident was not sufficient to deprive an average person of his self-control and cool reflection such that a lesser conviction of manslaughter was warranted.

This assignment of error is without merit.

By his second, assignment of error, the defendant maintains that consecutive sentences totaling 45 years at hard labor are unconstitutionally [nharsh. The trial court denied Christopher’s motion to reconsider his sentences alleging excessiveness.

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied, 11-2304 (La. 3/9/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App. 2 Cir. 9/21/11), 73 So.3d 1021, writ denied, 11-2347 (La. 3/9/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App. 2 Cir. 11/2/11), 77 So.3d 1052. Where, however, as here, the defendant’s motion to reconsider sentence alleges mere exces-siveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. La. C. Cr. P. art. 881.1; State v. Mims, 619 So.2d 1059 (La. 1993); State v. Boyd, 46,321 (La.App. 2 Cir. 9/21/11), 72 So.3d 952. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the | 12sentence. State v. Cunningham, 46,664 (La.App. 2 Cir. 11/2/11), 77 So.3d 477. The defendant’s personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App. 2 Cir. 9/21/11), 73 So.3d 503, writ denied, 11-2288 (La. 3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App. 2 Cir. 9/21/11), 74 So.3d 248, writ denied, 11-2348 (La. 4/27/12), 86 So.3d 625.

A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

Second degree murder carries a mandatory life sentence. La. R.S. 14:30.1(B). Attempted second degree murder is punishable by 10 to 50 years at hard labor, without benefits, by operation of La. R.S. 14:27(D)(1)(a).

Possession of a firearm by a convicted felon is punishable by 10 to 20 years at hard labor, without benefits, and a mandatory fine of not less than $1,000, nor more than $5,000. La. R.S. 14:95.1(B).

Because Christopher’s motion to reconsider sentence was based only on constitutional excessiveness, this court’s review is limited to that inquiry. Christopher’s sentences of 30 and 15 years at hard labor respectively for |1Rattempted second degree murder and illegal possession of a firearm by a convicted felon are not constitutionally excessive.

At sentencing, the judge began by noting that the 2012 aggravated battery conviction involved the same victim. See fn. 1, supra. The judge then ensured that Christopher understood that his sentencing exposure for both of the convictions was 70 years without benefits. The judge then reviewed Christopher’s extensive criminal history, his previous crimes including violence and drugs, and noted that this was Christopher’s third-felony conviction. The judge emphasized that Honeycutt still has a bullet in his face and a bullet in his chest and suffers physically from his wounds. He noted that Christopher is “luck/’ that Ho-neycutt survived this heinous shooting or Christopher would be facing mandatory life imprisonment for second degree murder. The judge pointed out that there were children in very close proximity to the shooting — even Christopher’s own children.

The judge stated that he considered the mitigating factors, but found them unimpressive. Finding that Christopher was in need of custodial treatment and that any lesser sentence would deprecate the seriousness of the offense, the judge sentenced Christopher to 30 and 15 years at hard labor, without benefits, to be served consecutively. The judge told Christopher that “I am not going to give you another shot at shooting Mr. Honeycutt because you might actually kill him this time, if you had another chance, but you’re not going to get another chance.”

Significantly, throughout sentencing, Christopher attempted to defend his actions, stating again that he was acting in self-defense and that the two were fighting and the gun dropped out of his pants. Finally, after admonishment from the judge, Christopher expressed that he regretted what 114he had done. A total of 45 years hard labor is not disproportionate to the crimes of illegally possessing a firearm and using that firearm to shoot someone in the face and chest at point blank range. The sentences are well within the sentencing range and the sentencing judge’s discretion. The sentences do not shock our sense of justice.

Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Lemerick Yernell Christopher are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED,

      . The state sought to introduce the 2012 aggravated battery as other crimes evidence; however, after a Prieur hearing, the trial judge disallowed the evidence on the finding that it would be too prejudicial to the jury because it involved the same victim.


source: Caselaw Access Project

author: BROWN, CHIEF JUDGE.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Robert J. MOODY, Appellant
    No. 50,955-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 16, 2016.

      LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, GEYA D. PRUDHOMME, KELVIN M. RODGERS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, CARAWAY, and STONE, JJ.
   BROWN, CHIEF JUDGE.

| defendant, Robert J. Moody, was convicted of a forcible rape that occurred on October 6, 2012, in violation of La. R.S. 14:42.1. On appeal, this Court affirmed Moody’s conviction but vacated his sentence and remanded for resentencing, noting that the underlying crime of conviction required that at least two years of the sentence be served without parole. State v. Moody, 50,001 (La.App. 2d Cir. 09/30/15), 178 So.3d 1031. On remand, the trial court resentenced Moody to the same term of 55 years, without benefit of probation and suspension of sentence and required that the first two years of the sentence be served without benefit of parole. Moody filed a timely motion to reconsider sentence which was denied. He now appeals the sentence as excessive. We affirm the sentence but remand for the sole purpose of compliance with the sex offender notification and registration requirement. La. R.S. 15:542-543.1.

Discussion

Moody argues that the imposed sentence is unconstitutionally harsh and excessive and that the trial court erred in failing to grant his motion to reconsider sentence. Moody contends that the trial court initially deemed a 25-year sentence to be appropriate, but more than doubled the jail time upon his adjudication as a multiple offender without any new information regarding his criminal or social history. This increase, according to Moody, effectively constitutes the imposition of a life sentence. Moody also argues that the trial court’s focus on the fact that he never admitted his guilt as an | aaggravating factor was an improper consideration of his choice to go to trial. Moody complains that the 55-year term was no more than a needless imposition of pain and suffering and fails to contribute to the ends of justice.

For the crime of forcible rape at the time of the offense, Moody faced potential imprisonment at hard labor for not less than five years, nor more than 40 with at least two years of the sentence without benefit of probation, parole, or suspension of sentence. La. R.S. 14:42.1. For his second-felony adjudication, Moody faced potential sentencing exposure of not less than 20 years, nor more than 80 years at hard labor without the benefit of probation or suspension of sentence and at least two years without benefit of parole. La. R.S. 14:42.1; La. R.S. 15:529.1(G).

A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 01/15/02), 805 So.2d 166; State v. Johnson, 48,320 (La.App. 2d Cir. 11/20/13), 127 So.3d 988. To constitute an excessive sentence, a court must find that the sentence makes no reasonable contribution to acceptable penal goals. State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7.

Is At the original sentencing hearing, the trial court reviewed the penalty range for the offense and noted its consideration of the evidence for both sides. The court also reviewed the facts of the case as follows:

The evidence established that Mr. Moody and the victim were in a prior relationship. Mr. Moody was at least ten years older than the victim (who was 17 years old) when the relationship began.
In addition, the evidence established that the victim was still in high school when her relationship with Mr. Moody began.
The victim testified and was, obviously believed by the jury that, after a few months in this relationship, she decided to end it.
After the relationship ended, Mr. Moody continued to try to contact the victim. The victim did not accept phone calls from Mr. Moody. She, eventually, had her phone numbers changed. She blocked Mr. Moody on her Facebook account.
When the victim would not take Mr. Moody’s calls, he then began calling the victim’s friend, Angel, to try and make contact with [the victim].
In June of 2012, Mr. Moody went to [the victim’s] home. He was not welcomed by [the victim.] Rather than leaving when told to do so, he gained access to [the victim’s] home through the kitchen window. He took [the victim’s] cell phone and left the premises.
The police were called. [The victim’s] phone was found in Mr. Moody’s pocket. Rather than press charges, [the victim] and her mother requested that Mr. Moody be instructed to stay away from [the victim] to stay away from her home, and to leave her alone.
Mr. Moody did not abide by [the victim’s] requests. In fact the police also informed him to do those things. Mr. Moody did not abide by those instructions.
[The victim] had to have her phone number changed. Mr. Moody continued. He waited for her at the bus stop, followed her home from school, and a neighbor had to come to [the victim’s] aid to get Mr. Moody to leave her alone that day.
|4The evidence also established that, in October 2012, Mr. Moody went to [the victim’s] home. Again [the victim] would not let him in, so he came in again through the window.
[The victim] hit Mr. Moody with an aluminum baseball bat in an effort to keep him out. Mr. Moody was able to get in the house and did, in fact, rape [the victim] by force.
Mr. Moody testified at trial and gave many inconsistent statements and denied he raped [the victim].
Mr. Moody admitted to having vaginal intercourse with [the victim], but contended that it was consensual sex. He was adamant that [the victim] consented to having sex with him even though she greeted him with a baseball bat.

At sentencing, the court also considered the factors set forth in La. C. Cr. P. art. 894.1, specifically finding that there was an undue risk that during a suspended sentence Moody would commit a crime against the same victim, considering that the defendant could not take “no for an answer.” The court further determined that Moody was in need of correctional treatment in a custodial environment provided most effectively by commitment to an institution and that a lesser sentence would deprecate the seriousness of the present offense. As aggravating and mitigating factors, the court noted as troubling the fact that Moody failed to take responsibility for his actions. The court expressed concern over the fact that Moody was told more than once to stay away from the victim and asked to refrain from contact with the victim because she did not want to talk to him. The victim was forced to greet Moody with a baseball bat because he did not heed the requests. The court also considered that Moody was ten years older than the victim and that the offense was a crime of violence.

At the subsequent multiple offender sentencing hearing on April 28, 2014, the court vacated the former sentence imposed and then imposed the original sentence of 55 years at hard labor without benefit of probation or ^suspension of sentence. In addition to the former considerations made by the court, additional circumstances were taken into account. The court considered that Moody had a criminal history that included two felonies. Again the court reiterated the fact that prior to the rape Moody was asked to stay away from the victim but refused to listen. The court considered that Moody showed no remorse for his actions and did not accept any responsibility for his offense, insisting that the sex was consensual. Finally, the court reiterated that the victim tried to prevent Moody from entering her home and was forced to hit him with a baseball bat.

The imposed sentence is not unconstitutionally excessive. The trial court adequately considered the La. C. Cr. P. art. 894.1 factors, specifically noting the seriousness of the present offense and the unlikelihood of rehabilitation. Thus, an adequate factual basis for the sentence imposed is shown on the record. State v. Smith, 433 So.2d 688 (La. 1983).

The penalty is not so grossly disproportionate to the severity of the crime as to shock the sense of justice. State v. Smith, 01-2574 (La. 01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993). While the court was aware of Moody’s prior felony criminal conviction at the time of the original sentence due to his trial testimony, the fact remains that the court was not sentencing him as a multiple offender at that time. The trial court’s focus on Moody’s failure to take responsibility for his actions was also based upon..his trial testimony. Thus, any argument that this consideration was an improper focus on his choice to go to trial is unsupported by the record. For his second felony status, Moody faced the|fiimposition of a maximum sentence of 80 years. The court was well within its authority to increase the sentence. The sentence imposed, 55 years, is within the middle of the statutory range set forth under the habitual offender stat: ute. Notably, the crime of conviction, is a crime of violence under Louisiana law. Moody committed the previous robbery offense while armed with a weapon. These convictions evidence the fact that Moody is a violent offender. As noted by the trial court, the victim, who was ten years Moody’s junior, was forced to defend herself with a bat and was attacked by someone who refused to heed her requests to leave her alone. Moody persisted in his claims that the sex was consensual, never taking responsibility for his actions. Considering the broad discretion granted to the court in these matters, the imposed sentence is adequately tailored to this defendant.

Error Patent

Under La. R.S. 15:541, forcible rape is defined as a sex offense. Thus, Moody was entitled to be informed of the sex offender notification and registration requirements of Louisiana’s sex offender laws. A review of the record- and minutes reveals, that the trial court neither orally nor in writing informed Moody of the sex offender notification and registration requirements of La. R.S. 15:542-543.1. This fact requires remand for the purpose of providing the appropriate written notice of the sex offender registration requirements to Moody within ten days of the rendition of this opinion, and for an entry into the court minutes stating that the written notification was provided to the defendant. La. R.S. 15:543(A); State v. Diggs, 43,740 (La.App. 2d Cir. 12/10/08), 1 So.3d 673, writ denied, 09-0141 (La. 10/2/09), 18 So.3d 101; State v. Scott, 42,997 (La.App. 2d Cir. 2/13/08), 975 So.2d 782.

Conclusion

For the foregoing reasons, defendant’s sentence is affirmed, and the case remanded to the trial court for compliance with the sex offender registration requirements.

      . In 2015, La. R.S. 14:42.1 was amended to change the name of the offense to second degree rape.

      . The record does not show that the court ordered a presentence investigation report prior to sentencing. Moody admitted at trial that he had a prior conviction in Texas for aggravated robbery.

      . The court issued written reasons for the multiple offender sentence on April 28, 2014.

      . For these reasons, we also find no error in the trial court’s denial of Moody’s motion to reconsider sentence.


author: WINDHORST, J.

text:
    MIKEN SPECIALTIES, Esis South Central Workers’ Comp Claims v. Norman J. ABARCA Norman J. Abarca v. Miken Specialties
    NO. 16-CA-231, 16-CA-232
    Court of Appeal of Louisiana, Fifth Circuit.
    December 7, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, MIKEN SPECIALTIES, Phillip E. Foco, Patrick H. Hunt
    COUNSEL FOR DEFENDANT/APPELLANT, NORMAN J. ABARCA, Joseph G. Albe, Jr., Robert A. Lenter
    Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

| iThis is a worker’s compensation case. Norman Abarca was employed by Miken Specialties as a laborer. He was assisting in removing scaffolding on May 1, 2012 when a worker above him dropped a plank of wood, which struck him on his hardhat. Mr. Abarca stated that he momentarily lost consciousness and he fell to his knees. He further stated that he felt pain the next day, but did not report the accident at that time because he was told he would be fired. Two weeks later, he reported the accident and was examined by a company doctor, who diagnosed neck strain, and released him to work. Mr. Abarca continued to work full duty, with overtime, until July 20,2012, when he was laid off.

Thereafter, on September 5, 2012, Mr. Abarca filed a disputed claim for compensation. On March 21, 2013, he and Miken entered into a consent judgment in which they agreed that there was an accident on May 1, 2012, that the accident occurred during the course and scope of Mr. Abar-ca’s employment with Miken, and that Mr. Abarca injured his neck as a result of the May 1, 2012 accident. Mr. Abarca reserved his right to pursue future medical and indemnity benefits. Miken agreed to pay continuing SEBs, reserving its rights to challenge Mr. Abarca’s entitlement to any future benefits, including the right to challenge future disability status and medical treatments.

On November 18, 2014, Miken filed a disputed claim for compensation and a Motion to Modify Consent Judgment. Miken contended that Mr. Abarca’s symptomolo-gy at that time was unrelated to the May 1, 2012 accident, and therefore the consent judgment should be modified to eliminate any additional medical or indemnity benefits. On June 3, 2015, Mr. Abarca filed a disputed claim for compensation, Mr. Abarca contended that, as a result of the work accident, his injuries included cervical and lumbar spine injuries, injuries to the right knee and 12both wrists, neurological brain injury and psychological injury, and that his requests for medical treatment had been denied. The claims were consolidated for litigation.

After trial on the merits, the worker’s compensation court rendered judgment which found that Mr. Abarca failed to prove that he was unable to engage in any employment and therefore the March 26, 2013 Consent Judgment should be modified to show that he is not entitled to additional indemnity benefits. The worker’s compensation court further found that Mr. Abarca failed to prove that he was entitled to a cervical surgery or treatment for alleged knee injury and failed to prove that the employer was arbitrary and capricious in denying these treatments. The trial court ordered that the matter be dismissed with prejudice.

Mr. Abarca appeals from the ruling of the worker’s compensation court. Miken has filed an answer for appeal in this court, requesting that the judgment be modified to reflect a finding that none of Mr. Abarca’s symptoms at the time of trial were caused by the May 1, 2012 injury, which it contends is implicit in the judgment rendered.

EXCEPTION OF LACK OF SUBJECT MATTER JURISDICTION

After the record was lodged in this court, Mr. Abarca filed a declinatory exception of lack of subject matter jurisdiction. Mr, Abarca contends that pursuant to La. R.S. 23:1203.1J(1), exclusive original jurisdiction to determine whether medical treatment, care or services sought by a medical provider on behalf of a claimant was in accord with the medical treatment schedule rested with the Office Of Worker Compensation Medical Director, and therefore the worker’s compensation judge was without authority to rule that Mr. Abarca failed to prove that he was entitled to cervical surgery. Miken responds that the issue was not whether the surgery was medically necessary, but rather whether the condition ^complained of was caused by the accident, and therefore the trial court did have the jurisdiction to rule on the issue.

On October 15, 2014, the Medical Director denied the request for approval of cervical surgery. Mr. Abarca did not appeal from that decision. The worker’s compensation court in its judgment did not rule on the issue of whether cervical surgery should have been provided in accordance with the medical treatment schedule. Instead, it stated that Mr. Abarca failed to prove that he was entitled to cervical surgery and he failed to prove that the employer was arbitrary and capricious in denying same. This was within the jurisdiction of the worker’s compensation court. Mr. Abarca’s exception of lack of subject matter jurisdiction is denied.

STANDARD OF REVIEW

In a workers’ compensation case, the employee bears the burden of proving an accident occurred, it occurred in the course and scope of her employment, the accident caused her injury, and the injury caused her disability.
The appropriate standard of review to be applied to the workers’ compensation judge’s findings of fact is manifest error or clearly wrong. The findings of the workers’ compensation judge will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged her burden are factual determinations that will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. (Citations omitted.)

Summers v. Ritz-Carlton New Orleans, 14-800 (La.App. 5 Cir. 05/28/15), 171 So.3d 329, 336, writ denied, 15-1256 (La. 09/25/15), 178 So.3d 569.

Jj_ FACTS

At the trial of this matter, Mr. Abarca testified as to the particulars of the accident. He stated that he was employed by Miken, a company that erected and disassembled scaffolding. He was a helper, transporting the materials. On the date of the accident, May 1, 2012, he was assisting in erecting a scaffold. The workers were located in a stairway. Mr. Abarca was at the bottom end of a line passing material up to erect the scaffold. When the job was finished, the workers passed down the excess materials. Mr. Abarca stated that the person above him dropped a board and it landed on his hard hat. The board was twelve inches wide by two inches deep and ten feet long. The board was about five feet above him when it was accidentally released by a worker who was two steps above and five feet away from him. Mr. Abarca stated that when the board struck him, he fell on his right knee and his hand, and that he blacked out momentarily. At that point, he stopped working for the day. He was asked if he wanted to make an accident report, but he declined because he did not feel any pain.

Mr. Abarca further testified that the next day, his neck and lower back were hurting, and his right knee was swelling. He told his supervisor that he wanted to make an accident report, and his superior stated that if he made the report, they would both be fired because the report was not made at the time of the accident.

Two weeks later on May 15, 2012, after continual neck pain complaints, he was sent to the safety supervisor to file the report. On that date, he was examined by Dr. Luke Lee of Prime Occupation Medication. After an X-ray, Dr. Lee diagnosed neck strain and prescribed over-the-counter ibuprofen. Mr. Abarca was released to his regular duties.

IfiMr. Abarca testified that he continued to work for Miken until he was laid off on July 22, 2012. After he was laid off, he called Miken and related that he still had neck pain. Miken sent him to Dr. Robert Steiner, an orthopedist, who examined him on August 16, 2012. According to Dr. Steiner, Mr. Abarca informed him that he had injured his neck, but made no mention of low back or knee pain. Dr. Steiner diagnosed an aggravation of a pre-existing degenerative cervical disc disease, with no findings of cervical radiculopathy, prescribed medications and released Mr. Abarca to light duty work, with restrictions against lifting and/or carrying more than ten pounds. In his deposition taken on March 4, 2013, Dr. Steiner was also questioned concerning his review of .the findings of a nerve conduction study conducted by Dr. .Shamsnia in January of 2013. The study showed carpal tunnel syndrome and cervical radiculopathy. Dr. Steiner stated that the carpal tunnel syndrome was not related to the work accident. Dr. Steiner further stated that he found no evidence of cervical radiculopathy when he-examined Mr. Abarca post-accident. Finally, Dr. Steiner stated that he saw evidence of degenerative disc disease when examining x-rays and that there was not a sufficient time period between the accident and the x-rays for the accident to have caused the condition.

On September 7, 2012, Mr. Abarca was hired by All South Consulting Engineers, and he remained employed until March 5, 2013 when he quit. Mr. Abarca testified that he has not been employed since that time.

In September of 2012, Mr. Abarca began treatment with Dr. John Watermeier, orthopedic surgeon, along with Dr. Peter Zimmerman, who specialized in physical medicine, rehabilitation, and spine intervention, and Kimberly Melacon, Chiropractor. Mr. Abarca was treated by Dr. Watermeier until August of 2014. Dr. Wat-ermeier first saw Mr. Abarca three and one-half months Rafter the accident, on September 17, 2012, with complaints of headache, neck pain and movement restrictions, dizziness, and tingling in his arms, hand and legs. Dr. Watermeier was informed by Mr. Abarca that he had suffered a work related accident. Dr. Water-meier concluded that Mr. Abarca suffered traumatic injury to the neck, and that his symptoms were consistent with cervical disc syndrome and possible nerve root impingement. An MRI of Mr. Abarca’s cervical spine was performed on October 10, 2012, and it revealed cervical disc hernia-tions with neurocompression. During the course of his treatment with Dr. Water-meier, Mr. Abarca was treated with chiropractic manipulation and physical therapy, along with spinal nerve root injections from Dr. Zimmerman. Also during the course of treatment, Mr. Abarca’s status fluctuated from regular duty to light duty with restrictions to disabled, and his prognosis was usually “fair to good.”

In February of 2014, Mr. Abarca began treatment with Dr. Donald Dietze, neurosurgeon, who was Mr. Abarca’s treating physician at the time of trial. Dr. Dietze’s medical records indicated that Mr. Abar-ca’s cervical sprain should have resolved within six months of his injury. He diagnosed that Mr. Abarca suffered from cervical radiculopathy, spinal stenosis, and neck pain, and that his options at that point were to live with the condition or undergo surgery.

Mr. Abarca was examined by Dr. Henry Eiserloh, III on behalf of Miken, on November 14, 2013. Dr. Eiserloh reviewed the medical records of Dr. Steiner, Dr. Watermeier, and Dr. Zimmerman, and he examined Mr. Abarca. He concluded that there was no mention of thoracic, lumbar spine or knee pain in the original reports, and therefore those injuries were not com-pensable as there was no temporal element. He also noted that the reports of the cervical spine MRI showed degenerative changes, however, he did not see the original flies. He further noted that there was a discrepancy between Dr. Watermeier and Dr. Zimmerman in that 17Pr. Zimmerman’s notes indicated that Mr. Abarca could perform light duty work; however, Dr. Wat-ermeier stated that he was disabled. Dr. Eiserloh stated that Mr. Abarca could return to work based on a functional capacity evaluation, and that this results of the evaluation would also be based on patient effort.

In an addendum to his original report, authored on July 7, 2014, Dr. Eiserloh stated that he was provided with the films of the MRI, which he reviewed. He concluded that the aggressive treatments suggested were related to chronic degenerative disease, and that the work related injury was cervical strain which should have resolved within three months of the initial injury.

The court ordered an Independent Medical Examination, which was performed by Dr. Ralph Katz of the Westside Ortho-paedic Clinic. Dr. Katz summarized his findings in a report dated September 17, 2014. Dr. Katz examined Mr. Abarca and reviewed his medical records. He opined that as a result of the work accident, Mr. Abarca suffered a cervical strain that should have resolved. Dr. Katz opined that his ongoing complaints were a result of his preexisting cervical spondylosis. Dr. Katz stated that there was no evidence of radi-culopathy. Dr. Katz further stated that upon examination, Mr. Abarca’s pain was out of proportion to the examination, and that he had Waddell findings. Dr. Katz also opined that Mr. Abarca could return to employment in a light duty position, with restrictions that should be temporary.

Dr. Katz’s report also contained the results of psychological testing by Dr. Vandenweghe on June 17 and 18, 2014. That testing reflected significant depression and some behavioral factors associated with poor outcomes for rehabilitation efforts. Dr. Vandenweghe stated that Mr. Abarca was not |spermanently cognitively or emotionally disabled from work, and she recommended focused psychotherapy.

Dr. Dietze’s medical notes stated that he disagreed with the Independent Medical examination. Dr. Dietze agreed that cervical pathology is pre-existing, but did not agree that Mr. Abarca suffered only cervical sprain/strain in the accident. In Dr. Dietze’s opinion, Mr. Abarca suffered aggravation of pre-existing condition, rendering him symptomatic and causing cervical radiculopathy.

On October 11, 2014, Mr. Abarca was involved in an automobile accident. He was treated by Dr. Dietze on December 17, 2014, who opined that the motor vehicle accident temporarily exacerbated symptoms.

ASSIGNMENTS OF ERROR

Mr. Abarca first alleges that the worker’s compensation judge erred in failing to find that he was entitled to temporary total disability. La. R.S. 23:1221 provides that a claimant who seeks such benefits for a work related injury bears the burden of proving, “by clear and convincing evidence unaided by any presumption of disability, that [he] is physically unable to engage in any employment or self-employment.”

The worker’s compensation judge found that Mr. Abarca failed to prove by clear and convincing evidence that he was unable to engage in any employment. She considered the fact that Mr. Abarca was able to work full duty, including overtime, from the date of the accident until he was laid off two and one-half months later, and then he worked for a second employer for approximately seven months before he quit. Thus, Mr. Abarca did return to work after the accident. Furthermore, while Mr. Abarca’s treating physician stated that he was unable to work, the employer’s evaluating doctor, and the court’s independent medical examination doctor both stated that Mr. Abarca could return to work with restrictions.

| sConsidering the record before us, we cannot say that the worker’s compensation judge was manifestly erroneous or clearly wrong in her finding that Mr. Abarca failed to prove entitlement to temporary total benefits by clear and convincing evidence. We therefore find no error in-, the court’s ruling denying Mr. Abarca’s claim for these benefits.

Mr. Abarca next alleges that the trial judge erred in finding that he was not entitled to cervical surgery as a result of his work related accident, and in finding that he was not entitled to medical treatment for his knee or back pain.

An employee must establish a causal link between the work-related accident and her injury to recover. Summers, supra at 337. A claimant is not necessarily required to establish the exact cause of his disability or injury; however, the claimant must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Id. “If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof.” Id.

A request for approval for cervical surgery was made to the Medical Director in accordance with La. R.S. 23:1203.1I, The Medical Director denied Mr. Abarca’s request for cervical surgery on October 15, 2014, finding that the documentation submitted “does not support the approval of the requested services in accordance with R.S. 23:1203.1(D) and/or LAC 40;I.2715.L and LAC 40:I.2715.J” and that the “requested care, services, or treatment is recommended hnby the medical treatment schedule, but for a different diagnosis or body part.” (Emphasis in original). Mr. Abarca did not appeal that decision. In addition, while Mr. Abarca argues to this court that the trial court erred in finding that he failed to prove that he was entitled to cervical surgery, he does not argue that the decision of the Medical Director should be overturned.

A worker’s compensation court may overturn the decision of the Medical Director if it is shown by clear and convincing evidence that the decision was not in accordance with the provisions La. R.S. 23:1201. La. R.S. 23:1201.1. The decision of the worker’s compensation court is subject to review under the manifestly erroneous/clearly wrong standard. Vital v. Landmark of Lake Charles, 13-842 (La.App. 3 Cir. 02/12/14), 153 So.3d 1017. Assuming that this issue is properly before this court, we find that Mr. Abarca failed to prove by clear and convincing evidence that the Medical Director was in error.

We also find that the worker’s compensation court was not manifestly erroneous in its determination that Mr. Abarca failed to prove that he was entitled to cervical surgery. The issue presented was not whether Mr. Abarca should undergo cervical surgery, but whether the work-related accident caused the need for surgery. Both the employer’s doctor, Dr. Eiserloh, and that court’s independent medical examiner, Dr. Katz, found that Mr. Abarca suffered a neck sprain/strain at the time of the accident, and that his ongoing cervical issues were independently caused by degenerative disc disease. Dr. Dietze, the treating physician at the time of trial, also stated that as a result of the accident, Mr. Abarca suffered neck strain/sprain. However, Dr. Dietze concluded that the work related accident made Mr. Abarca’s pre-existing degenerative disc disease symptomatic. Mr. Abarca did not start treatment with Dr. Dietze until over one and one-half years after the Inaccident. Considering the evidence presented, we find that the worker’s compensation court was not manifestly erroneous in finding that Mr. Abarca failed to prove that he was entitled to cervical surgery as a result of his work related accident.

Next Mr. Abarca contends that the trial court erred in finding that he failed to prove that he was entitled to medical treatment for his knee and for his lower back.

The record reflects that, while Mr. Abarca mentioned knee and/or back pain, he did not receive treatment until almost six months after his accident, and after he had been working at full duty with overtime. Dr. Steiner, who examined Mr. Abar-ca on August 16, 2012, stated in deposition that Mr. Abarca did not complain of injury to any body part other than his neck. The medical records of Mr. Abarca’s treating orthopedist, Dr. Watermeier, reflect that there were some subjective complaints, but no significant treatment given to Mr. Abarca’s knee or lower back. A lumbar MRI conducted in December of 2012 showed degenerative changes, but there was no mention of any injury related to the May 1, 2012 accident. Accordingly, we find no error in the worker’s compensation judge’s ruling that Mr. Abarca failed to prove that he was entitled to treatment for his alleged knee injury or his alleged lower back injury.

Because we find no merit to Mr. Abar-ca’s claims that the trial court erred in finding that he was not entitled to cervical surgery, treatment for an alleged knee injury, or temporary total disability benefits, we also find no merit to Mr. Abarca’s claims that the trial court was arbitrary and capricious in denying same.

Miken has filed an answer for appeal in this court, requesting that the judgment be modified to reflect a finding that none of Mr. Abarca’s symptoms at the time of trial were caused by the May 1, 2012, which it contends is implicit in the judgment rendered.

|12In its disputed claim for compensation and accompanying motion to modify consent judgment, Miken requested that the consent judgment be modified to provide that no further indemnity or medical benefits are due in connection with the cervical injuries suffered, and find that claimant is capable of returning to modified duty work. These are the issues presented to, and considered by, the worker’s compensation judge in rendering her opinion. This court will not expand the decision of the worker’s compensation court and therefore we decline to grant Miken the ruling it seeks.

For the above discussed reasons, the ruling of the worker’s compensation court is affirmed. Costs are assessed equally between the parties.

AFFIRMED

      . This claim is not included in the record. Mr. Abarca asserted in brief that this claims alleged "ongoing disability and medical care.”

      . The report makes no mention of lower back pain or knee pain.

      . Mr. Abarca referred to Dr. Lee as the "company doctor.”

      .Contained in Mr. Abarca's personnel records is a report that states that Mr, Abarca requested that he be laid off.

      . Mr. Abarca stated he had knee pain on the intake questionnaire. This was not addressed in Dr. Watermeier’s notes.

      . Waddell’s signs are a group of physical signs which may indicate non-organic or psychological component to chronic low back pain. They were first described in a 1980 article in Spine, and are named for the article's principal author, Gordon Waddell, M.D., (1943-), a Scottish Orthopedic Surgeon. Historically, they have also been used to detect malingering in patients with back pain. While testing takes less than one minute, it has been described as time-consuming and alternatives have been proposed. (Citations omitted.) Waddell’s Signs, http://wildpedia.org

      . La. R.S. 23:1203.11 provides:
      After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203 et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances,

      . As required by Louisiana Administrative Code, 40:I.2715K(1), any party aggrieved by the decision of the Medical Director shall seek judicial review by filing Form LWC-WC-1008 in a workers' compensation district office. See Gilliam v. Brooks Heating & Air Conditioning, 49,161 (La.App. 2 Cir. 07/16/14), 146 So.3d 734.


author: GRAVOIS, J.

text:
    STUART CONSULTING GROUP, INC. v. Constance LOYLESS and Louisiana Workforce Commission
    NO. 16-CA-247
    Court of Appeal of Louisiana, Fifth Circuit.
    December 07, 2016

      COUNSEL FOR DEFENDANT/APPELLANT, CONSTANCE LOYLESS, Richard P. Bullock, Chad B. Ham
    COUNSEL FOR PLAINTIFF/APPEL-LEE, STUART CONSULTING GROUP, INC., Len R. Brignac, James D. Bercaw
    COUNSEL FOR DEFENDANT/AP-PELLEE, LOUISIANA WORKFORCE COMMISSION, J. Jerome Burden
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   GRAVOIS, J.

| Appellant, Constance Loyless, appeals a judgment of the district court that reversed an administrative determination by the Louisiana Board of Review that she was entitled to unemployment benefits. For the following reasons, we affirm the district court judgment under review.

FACTS AND PROCEDURAL HISTORY

Ms. Loyless had been employed by Stuart Consulting Group, Inc. (“Stuart”) since April of 2008. She started as a receptionist and was eventually promoted to executive administrative assistant to Thomas Martin, a vice president of the company. In a series of events from December 16, 2014 until December 22, 2014, Ms. Loyless’ employment with Stuart ended. Ms. Loyless contends that she was fired on December 22, 2014; Stuart contends that she quit on December 16, 2014.

The record shows the following chronology of events. On Tuesday, December 16, 2014, Stuart fired its office receptionist (not Ms. Loyless), ostensibly due to budget cuts. Shortly before 4:30 p.m. that afternoon, Ms. Loyless was told by her supervisors to take over the receptionist’s duties immediately and indefinitely. Ms. Loyless became upset because, among other things, the change required her to move from her private office to the receptionist’s desk. She testified later that she felt she was being demoted and this upset her because she had been at the company a long time. She left the office at 4:30 p.m. that afternoon, prior to the end of her work day.

Ms. Loyless texted Mr. Martin on both December 17th and 18th that she would not be in because she was sick. According to her testimony, Mr. Martin responded “ok feel better,” or something similar. On Friday, December 19th, Ms. Loyless emailed and/or texted to remind her boss that she had a previously scheduled day off to take her step-son to a medical procedure. When she returned to work at 7:30 a.m. on December 22nd, a Monday, Ms. Loyless was told that she |awas no longer employed there because she had quit her job on December 16th. Her personal belongings had been removed from her office and boxed. Mr. Martin told her to leave, but she refused to do so and pleaded for her job. She was ultimately escorted out of the building by a police officer.

Ms. Loyless applied for unemployment benefits in December of 2014. On January 13, 2015, she received a notice of claim determination from the Louisiana Workforce Commission (the “LWC”) stating that she was disqualified from benefits pursuant to La. R.S. 23:1601(1)(a) because she had “voluntarily left [her] employment without good cause.”

Ms. Loyless appealed this determination to the LWC Appeals Tribunal. A telephone hearing was held before an administrative law judge, Daniel Druilhet, on February 3, 2015, in which both Ms. Loyless and Stuart participated. That day, Judge Druilhet issued a ruling agreeing with the LWC that Ms. Loyless was disqualified from unemployment benefits because she had left her employment without good cause, to-wit:

Here, the claimant left her employment due to dissatisfaction with having to assume duties as a receptionist. Considering that the claimant was not demoted by the employer, that her wages were not reduced, and that no substantial change occurred to her work hours, she quit for personal reasons and not for good cause attributable to a substantial change made to her employment by the employer. Benefits should be denied.

On February 9, 2015, Ms. Loyless appealed Judge Druilhet’s ruling to the Louisiana Board of Review, who, in a decision rendered on February 13, 2015, vacated the ruling of the Appeals Tribunal, finding:

The Board cannot review this matter to make a determination due to lack of adequate testimony being taken on the substantive issue. There is insufficient evidence and testimony to determine if the Claimant left employment voluntarily or was discharged from the employment. Specifically, additional information must be taken regarding the incident of December 16, 2014, and whether the IsClaimant maintained contact with the Employer between December 16, 2014 and December 22,2014.

A second hearing in front of the Appeals Tribunal subsequently took place on March 4, 2015, again by telephone, in front of a different administrative law judge, Ashley Butler. Ms. Loyless participated, but Stuart did not, allegedly due to its representative being out of the office and unavailable at that time. Judge Butler considered the packet of evidence previously considered by the first administrative law judge and the Board of Review, plus additional testimony from Ms. Loyless. On March 6, 2015, Judge Butler rendered a decision in favor of Stuart, finding that Ms. Loyless was not entitled to unemployment benefits. The ruling found that Ms. Loyless had the burden of proof in the matter. The judge found that she was the “moving party” in her separation from employment, that her new job duties were sufficiently similar to her previous duties and thus did not constitute a significant change in her employment terms, and that she had voluntarily quit her job. The judge further found that the evidence showed that Ms. Loyless “did not make any attempt to protect her job or to ensure that it was clear she did not quit her position on December 16, 2014.”

Ms. Loyless filed an appeal of this ruling with the Board of Review on March 18, 2015. The Board issued a ruling two days later, on March 20, 2015, reversing Judge Butler’s ruling and awarding Ms. Loyless unemployment benefits. The Board found that Judge Butler had failed to apply standards of relevance, admissibility, credibility, and weight of evidence. Unlike the previous tribunals, who found that Ms. Loyless as the applicant bore the burden of proof to 14show entitlement to benefits as the “moving party” in her separation from employment, the Board found that the employer, Stuart, bore the burden to prove that Ms. Loyless committed misconduct (as per La. R.S. 23:1601(2)) in order to deny her benefits, and that Stuart failed to bear that burden.

Following the ruling of the Board of Review, Stuart filed a Petition for Judicial Review in the district court pursuant to La. R.S. 23:1634(A). After conducting a hearing on the matter on January 27, 2016 and taking the matter under advisement, the district court, without assigning reasons, rendered a judgment on February 26, 2016 granting Stuart’s Petition for Judicial Review, reversing the March 20, 2015 decision of the Board of Review, and reinstating the March 6, 2015 Appeals Tribunal decision to disqualify Ms. Loyless from receiving unemployment benefits. This timely appeal followed.

On appeal, Ms. Loyless argues that the district court erred in applying the wrong standard of review, when it failed to follow the mandates of La. R.S. 23:1634(B) when sitting as a court of review. She also argues that the district court erred in failing to find that the Board of Review’s ruling was supported by sufficient evidence. She prays that the district court judgment be reversed and the Board of Review’s ruling be reinstated, allowing her to collect unemployment benefits.

ANALYSIS

The scope of appellate review of cases arising under the Louisiana Employment Security Law has been expressly limited by the legislature. Gonzales Home Health Care, L.L.C. v. Felder, 08-0798 (La. App. 1 Cir. 9/26/08), 994 So.2d 687, 690-691, citing Lewis v. Administrator, 540 So.2d 491, 495-496 (La. App. 1st Cir. 1989). The scope of judicial review imposed upon the district court in cases of this type is found in La. R.S. 23:1634(B), which provides, in pertinent part:

Lin any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.

Thus, judicial review of the findings of the Board is strictly limited to first, a determination of whether the facts are supported by competent evidence, and second, whether the facts, as a matter of law, justify the action taken. Lewis, 540 So.2d at 496. Judicial review of the findings of the Board does not permit the weighing of evidence, drawing of inferences, reevaluation of evidence, or substituting the views of the court for that of the Board as to the correctness of the facts presented. Id. The usual rules of evidence need not apply to the administrative hearing. La. R.S. 23:1631. Hearsay may be admissible; nevertheless, the findings of the administrative agency must be supported by competent evidence, and incompetent evidence admitted at the hearing will be disregarded by the courts upon their judicial review to determine if the agency’s findings are supported by sufficient evidence as required by law. Hall v. Doyal, 191 So.2d 349, 352 (La. App. 3rd Cir. 1966). When the evidence presented is open to several reasonable constructions, the court will accept the one the Board of Review has reasonably made in reaching its decision. Carter v. Blache, 476 So.2d 873, 878 (La. App. 2nd Cir. 1985).

Before the appeals referee, a person seeking unemployment compensation benefits bears the burden of proving his claim by a preponderance of the evidence. Lewis v. Administrator, 540 So.2d at 494-495, citing Chrysler Corporation v. Doyal, 352 So.2d 322 (La. App. 4th Cir. 1977). He must commence the presentation of evidence and establish at least a prima facie showing that he is entitled to benefits. Id. If the claimant establishes that he was discharged by his employer, the burden of proof shifts to the employer to show that the employee was discharged for misconduct which would disqualify him from receiving |fibenefits. Id., citing Banks v. Administrator of Department of Employment Security of State of Louisiana, 393 So.2d 696 (La. 1981). However, if the employee shows that he voluntarily left his employment, he still has the burden of proving that he left his employment for good cause. Id.

In Louisiana Department of Corrections v. Administrator, Louisiana Office of Employment Security, 457 So.2d 825, 827 (La. App. 1st Cir. 1984), cited by Lewis v. Administrator, the court defined “good cause” as follows:

Good cause connected with a person’s employment, as defined in La. R.S. 23:1601, means cause connected with working conditions, ability of the employee to continue the employment, availability of transportation to and from work and other factors which affect the employee’s ability or right to continue work or which affect the benefits he may receive from his employer either upon continuation of work or retirement. ... It is good cause connected with employment for an employee to quit his job when the work becomes unsuitable due to unanticipated working conditions. ... Personal reasons for resigning employment are not good cause connected with employment. (Citations omitted.)

As previously noted, the judicial review of the findings of the Board of Review is strictly limited to first, a determination of whether the facts it found are supported by competent evidence, and second, whether the facts, as a matter of law, justify the action taken. The ruling of the Board shows that it found the following:

In this case, the evidence and testimony indicate that the Claimant left work early on December 16, 2014. The testimony and evidence also indicates that the Claimant was in contact with the Employer between December 16, 2014 and December 22, 2014, during which time she expressed her intent to return to work. There is no evidence in the record which indicates that the Claimant resigned from the employment. The Claimant was not the moving force behind her separation from employment. This section of law does not apply. The Appeals Tribunal erred in finding that the Claimant left employment. As such, the disqualification rendered under this section of law must be reversed, and the disqualification must be removed.

|7Looking objectively at all of the evidence adduced at each stage in these proceedings, without weighing the evidence or drawing credibility inferences as prohibited by La. R.S. 23:1634, we find that in its review of the ruling of the Board of Review, the district court properly employed the limited standard of review set forth by La. R.S. 23:1634, and further that its reversal of the Board’s ruling is supported by the evidence in the record. In so concluding, we have evaluated whether the particular facts found by the Board are supported by competent evidence.

First, the Board found that Ms. Loyless left early on December 16, 2014. The record supports this finding. Ms. Loyless left work half an hour early on December 16th, visibly upset at what she characterized as a demotion. At the first telephone hearing, Ms. Loyless claimed that employees were allowed to leave early if they came in early or worked through lunch. Mr. Martin, who also testified at this hearing, said that she left early, but didn’t otherwise challenge her assertion that leaving early was sometimes allowed.

Next, the Board found that Ms. Loyless maintained contact with her employer between December 16th and December 22nd, during which time she expressed her intent to return to work, and further found no evidence in the record to indicate her intent to resign. However, to the contrary, there is evidence in the record showing that Ms. Loyless showed the intent to resign on December 16th — namely her admitted oral statement made as she was leaving that she was “out of here” and would bring boxes to pack when she returned the next day. Further, the record clearly indicates that Stuart communicated with Ms. Loyless over December 17th, 18th, and 19th, telling her that her resignation had been accepted. Ms. Loyless acknowledged this at both hearings. She explained that when she said she was “out of here” on December 16lh to Mr. Martin, she meant that she needed to leave before she said something stupid or caused a scene. She testified that she knew |sMr. Martin had heard her remark, because the following day (December 17th, the first day she called in sick), “he started with oh, don’t worry about it, you resigned.” She testified at both hearings that she knew, by Mr. Martin’s response to her on December 17th , that Stuart considered that she had resigned.

Another piece of evidence apparently ignored by the Board of Review is a letter from Ms. Loyless, dated January 26, 2015, to the Louisiana Workforce Commission regarding the telephone hearing scheduled for February 3, 2015, which was read into the record at the first hearing before Judge Druilhet. Therein, Ms. Loyless explains:

That is to say, my employer stated that I quit, when in fact, at 4:30 p.m. on a business day, after learning that 2 other employees had been fired for budgetary reasons, I left work early.. I was distraught and emotional over the losses, and being told I had to give up my office and title of .Executive Assistant, and return to being the Receptionist, and siL ting in the lobby of the office building. The next 2 days (documentation is available) I called into the office stating that I was sick and not feeling well (also noted on my timesheets that were submitted but ignored by the employer) and then on Friday, December 19th, I called in, texted, and emailed (also documented) that as a reminder, I had to take my Stepson to the hospital for a medical procedure and stay with him because he was forbidden to drive. On all of these occasions, I was told that “my resignation had been accepted" and in spite of my pleadings that I had not quit, but rather needed to leave early, they claim I quit. (Emphasis added.)

Also in evidence at the first hearing is an email exchange between Ms. Loyless and Steve Nelson, another Vice-President at Stuart. After Ms. Loyless emailed in to remind Stuart that she had a previously scheduled day off on December 19th, Mr. Nelson responded, at 8:07 a.m. on that day, that “per previous discussions and correspondence your resignation has been accepted and a check is available for pickup whenever is convenient.”

Accordingly, the Board’s factual finding that Ms. Loyless maintained contact with her employer and “expressed her intent to return to work” was an insufficient basis upon which to reverse the administrative law judge’s determination that Ms, Loyless resigned from her job, given the competent |flevidence noted above that the Board apparently disregarded. Following Ms. Loyless’ statements indicating her resignation on December 16th, Stuart’s communications with her starting on December 17th were always consistent with Stuart’s position that she had resigned her employment on December 16th, despite her pleadings that she had not. Thus, the Board’s conclusion that Ms. Loyless was not the “moving force” behind her leaving Stuart is not supported by sufficient evidence, and is in fact refuted by the evidence.

Because of the above noted competent evidence that was apparently disregarded by the Board of Review that counters Ms. Loyless’ claims that she did not resign, we must consider whether Judge Butler’s finding that Ms. Loyless failed to establish good cause for leaving her employment was correct. Judge Butler’s findings are as follows:

The claimant has the ultimate burden of proving his or her claim by a preponderance of evidence. When an individual becomes unemployed and the separation issue is “leaving,” then the claimant has the burden of proving good cause attributable to a substantial change in the employment by the employer. Upon a showing of “good cause,” the issue then becomes whether or not the reason for leaving was job connected.
The evidence in this case shows that the claimant was the moving party in the separation. The claimant testified that on December 16, 2014, she was informed that she was to assume receptionist duties, which made her very upset. On that date the claimant admits that she said “I am out of here” and left the jobsite prior to her quitting time without proper authorization. After leaving the jobsite without authorization the claimant did not return December 17th or December 18th, at which time she was aware employer believed she had quit due to her actions on December 16th. The claimant’s job title was not changing nor was her hourly wage going to decrease. The new job duties the claimant was asked to assume were sufficiently similar to duties she already performed, so they did not constitute a significant change in the employment.
The claimant had the ultimate burden in this case. The facts show that the claimant did not make any attempt to protect her job or to ensure that it was clear she did not quit her position on December 16, 2014. In addition, the employer submission to the agency corroborates parts |inof the claimant’s testimony further supporting a finding that the claimant was the moving party in the separation. Consequently, it is held that the claimant did voluntarily quit his [sic] job. It is further held that the claimant has not shown that her leaving was for good cause due to a substantial change made to her job by the employer. As such, benefits should be denied.

As noted above, it is good cause connected with employment for an employee to quit his job when the work becomes unsuitable due to unanticipated working conditions. La. R.S. 28:1601. The evidence shows that Ms. Loyless was being asked to sit at the receptionist’s desk, rather than her private office, for an indefinite time period to answer phones and to continue performing her current duties. The evidence also shows that the receptionist’s duties were not significantly different from the ones Ms. Loyless had previously been performing. Mr. Martin testified at the first telephone hearing that he assured Ms. Loyless that her pay would not be reduced. She testified that she did not recall the matter of her pay or hours being discussed on December 16th, but later agreed that she was never told her pay or hours would be reduced. Accordingly, Judge Butler’s conclusion that Ms. Loyless failed to establish “good cause” for leaving her employment is supported by the record.

Accordingly, we find that the Board of Review erred in concluding that Judge Butler’s ruling was not based on a preponderance of the evidence, or that the judge failed to apply standards of relevance, admissibility, credibility, and weight of the evidence to the case record. While the Board’s conclusion that Ms. Loyless had communicated with Stuart between December 16th and December 22nd expressing her intent to return to work appears to be true, the Board apparently failed to recognize Ms. Loyless’ own admissions at both hearings, as noted above, as well as email evidence, that Stuart clearly communicated with her during the |nsame time period that it considered her words and actions on December 16th to be a resignation which they accepted. It is equally clear that Ms. Loyless did not give credence to Stuart’s communications to her while she was out sick on December 17th and 18th, and pleaded for her job given “their eight year history.” Despite admitting that Stuart told her it accepted her resignation on December 17th, Ms. Loyless called in sick on December 18th and did not work on December 19th, thus failing to protect her job, as Judge Butler found. Ms. Loyless’ assignments are without merit.

CONCLUSION

For the foregoing reasons, the judgment of the district court that reversed the ruling of the Board of Review is affirmed.

AFFIRMED

      . The Board's official title is “State of Louisiana, Board of Review, Office of Regulatory Services.”

      . The order of remand issued by the Board on February 13, 2015 did not instruct the Appeals Tribunal to disregard the evidence and testimony already in the record, but to take additional testimony on those issues, which Ms. Loyless provided at the second telephone hearing. The order of remand, however, appears to be at odds with the "Notice of Telephone Hearing” mailed to the parties on February 20, 2015, which stated: "Note: the appelant [sic] must participate in this hearing as previous, [sic] testimony will not be considered.” At the second hearing, the administrative law judge read into the record all of the exhibits from the previous hearing. Ms. Loyless objected only to the introduction of a text message allegedly sent by her to one of her supervisors.

      . Stuart argues in brief that it was not notified of Ms. Loyless’ appeal to the Board of Review, and that the Board rendered a decision within two days of receiving Ms. Loyless’ appeal, which did not give Stuart the opportunity to brief the matter or be heard before the Board. However, La. R.S. 23:1630 does not appear to confer the right to briefing and argument in an appeal before the Board.

      . The Board of Review noted, in its opinion, that a telephone hearing had taken place on February 3, 2015, and that the employer did not participate in this hearing, which placed Ms. Loyless in the position of bearing testimony against herself. This finding of fact, however, is not correct. A telephone hearing did in fact take place on February 3, 2015, in front of Judge Druilhet, at which both Ms. Loyless and Stuart participated. It was at the second telephone hearing, which took place before another administrative law judge, Judge Butler, on March 4, 2015, in which Stuart did not participate.

      . While Judge Butler states that Ms. Loyless’ early departure on December 16th was "without proper authorization,” a reading of her opinion as a whole shows that this was not a determining factor in her decision to deny benefits, nor was it determined to be misconduct. We have previously noted that Stuart did not challenge Ms. Loyless’ assertion that her leaving early that day was allowed because she had worked through her lunch hour.

      . In its judgment dated March 20, 2015, the Board stated: "We are further disposed to make the gratuitous observation that proceedings to the prejudice of a claimant based upon unsupported charges conducted in a quasi-judicial hearing where the employer does not appear and the claimant is required, in effect, to bear testimony against himself, is subject to a serious question as to propriety and validity.” However, the record is clear that Ms. Loyless’ admissions as noted above occurred during the first hearing in which Stuart’s representative participated.

      . We note that the issue of disqualifying misconduct pursuant La. R.S. 23:1601(2) was not found in the prior proceedings before the administrative law judges. In any event, the record is devoid of any evidence that Ms. Loyless committed "misconduct” as contemplated by La. R.S. 23:1601(2). Stuart did not present any evidence on this issue at any point in the proceedings, other than to state that Ms. Loyless left half an hour early on December 16, 2014. Stuart did not refute Ms. Loyless' assertion that she was allowed to leave early when she had previously worked through her lunch hour, as she claimed to have done that day. We find that the issue of misconduct was properly disregarded by both administrative law judges.