author: EZELL, Judge.

text:
    STATE of Louisiana v. Danial Lewayne LAFLEUR, -aka-Daniel Lafleur, -aka- Daniel Lee Lafleur, -aka- Danial Lafleur
    KA 16-467
    Court of Appeal of Louisiana, Third Circuit.
    01/04/2017
    Rehearing Denied March 8, 2017

      Edward Kelly Bauman, La Appellate Project, P. 0. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Danial Lewayne LaFleur
    Jeffrey M. Landry, Attorney General, P O Box 94005, Baton Rouge, LA 70804, (225) 326-6200, COUNSEL FOR APPEL-LEE: State of Louisiana
    Andrea Barient, Assistant Attorney General, 1885 North Third Street, Baton Rouge, LA 70802, (225) 326-6258, COUNSEL FOR APPELLEE: State of Louisiana
    Danial Lewayne LaFleur, Riverbend Corr. Ctr. Dorm D, 26362 Hwy 15, Ferri-day, LA 71334
    Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie, Judges.
   EZELL, Judge.

hOn December 17, 2013, Defendant Danial Lewayne Lafleur was charged by a bill of information with one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4. The State filed a “Motion for Appointment of Sanity Commission,” and on September 10, 2014, the trial court ordered a sanity commission to determine whether Defendant was competent to assist in his own defense. On July 10, 2015, a sanity commission hearing was held regarding Defendant’s capacity to proceed to trial. It was determined that Defendant was incapable of assisting in his defense at trial. Defendant was ordered into treatment at the Eastern Louisiana Mental Health System, Forensic Division. A mental competency hearing was held on October 2, 2015. The trial court found Defendant to be competent to proceed to trial. A jury trial commenced on December 15, 2015. Defendant was found guilty as charged on December 16, 2015. A presen-tence investigation report was ordered by the trial court. Defendant was sentenced on March 16, 2016, to the maximum sentence of ten years imprisonment at hard labor. Defendant filed a timely “Motion to Reconsider Sentence,” in which he asserted that the sentence was excessive under the circumstances of his case. The motion was denied without a hearing on March 16, 2016.

Defendant has perfected a timely appeal. Defendant’s appellant counsel asserts that the imposition of the maximum sentence of ten years at hard labor was constitutionally excessive under the circumstances of the case. For the following reasons, we find merit with this assignment of error. Therefore, we vacate the sentence and remand the case to the trial court for resentence. However, we find no merit to any of Defendant’s pro-se assignments of error.

laFACTS

In the early evening of October 31, 2013, on Halloween, the victim, David Savoy, and his family were out trick-or-treating. Mr. Savoy was sitting in his truck in a neighbor’s driveway after his wife and children had gotten of the truck. As Mr. Savoy sat waiting, Defendant approached the truck, pointed a rifle at Mr. Savoy, and asked Mr. Savoy something about Defendant’s baby and a neighbor’s swimming pool. Mr. Savoy testified Defendant stood about ten yards away and held the gun on him for about ten to fifteen seconds. Defendant then lowered the rifle and walked away. Mr. Savoy said he did not know what Defendant was asking him and that he was in fear for his life.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

We will address Defendant’s pro se assignment of error number one first, since should there be merit to Defendant’s assertion that the evidence was insufficient to sustain the conviction, Defendant would be entitled to an acquittal of the charge of aggravated assault with a firearm. State v. Hearold, 603 So.2d 731 (La.1992). In this case, Defendant’s complaint regarding his sentence would be moot.

Defendant argues that the State failed to prove all the elements of the offense, specifically that there was no evidence that the gun discharged or that the gun was even capable of discharging. Louisiana Revised Statutes 14:37.4 provides:

A. Aggravated assault with a firearm is an assault committed with a firearm.
B. For the purposes of this Section, “firearm” is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder' exploded within it.
laC. Whoever commits an aggravated assault with a firearm shall be fined not more than ten thousand dollars or imprisoned for not more than ten years, with or without hard labor, or both.

An assault is defined as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La.R.S. 14:36.

The analysis for such insufficiency claims is well-settled: When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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). In order for this court to affirm the conviction, the record must reflect that the State had satisfied its burden of proving all the elements of the crime beyond a reasonable doubt.

We note that prior to May 25, 2012, Defendant may have been correct in his assertion that to be guilty of aggravated assault with a firearm, the firearm must have been discharged. However, in 2012, the Louisiana Legislature amended La. R.S. 14:37.4 to exclude the phrase “by the discharge of’ and added the word “with,” thereby eliminating the element of “discharge” of a firearm. 2012 La. Acts No. 320, § 1. Defendant committed the act of pointing a rifle at the victim in October 2013.

A discharge of the firearm is not an element of the offense in this case. See State in interest of A.J., 14-595 (La.App. 4 Cir. 10/1/14), 151 So.3d 659, where the juvenile took a gun to school. The juvenile was adjudicated a delinquent with illegal carrying of a firearm by a student on school property and aggravated assault with a firearm. While the juvenile did not allege insufficient evidence as in the Rcurrent case, testimony established that he flashed the gun and pointed it at the feet of his girlfriend as she talked to another boy. The girl testified she was afraid when she saw the gun.

Defendant attempts to support his argument that discharge of the firearm was necessary to complete the offense of aggravated assault with a firearm by referencing La.Code Crim.P. art. 893.3(C), which is a sentencing enhancement provision used when a firearm is actually discharged during the commission of a felony or a misdemeanor. This provision is not applicable to the offense charged in this case.

As previously noted, Defendant pointed a rifle at the victim as the victim sat in his vehicle. Defendant admits in brief to this court that he pointed the rifle at the victim. Defendant’s girlfriend, with whom he was living, testified that on the evening of the incident it appeared Defendant was waiting for Mr. Savoy. When he saw Mr. Savoy drive by, he picked up his rifle and said he was going to “confront” Mr. Savoy. While Defendant argues that he was only joking and that the victim was his former best friend, Mr. Savoy testified that he had met Defendant only a few times through his family’s association with Defendant’s girlfriend. Mr. Savoy testified that he feared for his life and that he remained fearful even after Defendant left the scene.

We find that, considered in a light most favorable to the prosecution, the State met its burden of proving all the elements of the offense of aggravated assault with a firearm beyond a reasonable doubt. Defendant pointed the rifle at Mr. Savoy with the intent to cause him to be in reasonable apprehension of receiving a battery. There is no merit to this assignment of error.

I.ATTORNEY-FILED ASSIGNMENT OF ERROR

Defendant argues that the trial court did not take into consideration his mental illness as a mitigating factor when he imposed the maximum sentence. He argues that he has been diagnosed with schizophrenia, paranoia, and was, at the time of the incident, “non-compliance with medication.” Defendant argues that maximum sentences are generally reserved for the worst offenders, and considering the firearm was not discharged and no one was harmed, he did not deserve a maximum sentence.

In State v. Foster, 02-910 (La.App. 4 Cir. 12/11/02), 834 So.2d 1188, the defendant alleged his sentence was excessive because the trial court did not consider his mental illness as a mitigating factor when sentencing him. Concerning the allegation of excessive sentences, the fourth circuit stated:

Article I, section 20 of the Louisiana Constitution explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272; State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461, grant of post conviction relief on other grounds affirmed, 2001-1667 (La.App. 4 Cir. 2/6/02), 809 So.2d 1132. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 677: State v. Webster, 98-0807, p. 3 (La.App. 4 Cir. 11/10/99), 746 So.2d 799, 801, reversed on other grounds sub nom. State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 6 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.
In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C. Cr. P. article 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127. If adequate compliance with La. C. Cr. P. article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.
However, in State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, this court stated:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resen-tencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C. Cr. P. art. 881.4(D).

96-1214 at p. 10, 708 So.2d at 819.

In State v. Soraparu, 97-1027 (La. 10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La. 1979), a remand for resentencing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).
Id.

Id. at 1193-95 (alterations in original).

The fourth circuit further discussed the defendant’s mental illness as a mitigating factor, as follows:

The trial court gave no reasons for sentencing, nor indicated in any way that it had considered the sentencing factors in La. C. Cr. P. article 894.1. Defendant argues that his mental illness was a mitigating factor the trial court should have considered. In State v. Legendre, 522 So.2d 1249 (La.App. 4 Cir. 1988), this court vacated the five-year maximum sentence for second degree battery imposed on a defendant with a long history of mental illness who had been diagnosed as a paranoid schizophrenic and treated with various medications which he continually resisted taking. This court found that the trial court should have considered the defendant’s mental illness as a mitigating factor, citing several Louisiana Supreme Court decisions for the proposition that “Louisiana caselaw [sic] does indicate that mental illness should be used as a mitigating circumstance.” 522 So.2d at 1252. This court stated that “[w]hen persons with recognized, diagnosed mental illnesses are convicted of crimes, that condition should be considered to mitigate the type and length of sentence imposed on the offender, even if he has been ruled legally sane.” 522 So.2d at 1253.
In State v. Taylor, 91-2496 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, this court cited Legendre for the proposition that Louisiana jurisprudence indicates that mental illness should be used as a mitigating factor in sentencing. In Taylor, however, this court affirmed the defendant’s sentence, noting that the defendant failed to introduce evidence that he was suffering from depression at the time of the offense. Hospital records showed that the defendant was diagnosed as suffering from moderate depression one year before the crime. However, defendant did not exhibit any signs of depression when examined some six months after the crime by a psychiatrist appointed to a sanity commission.

Id. at 1195 (footnote omitted) (second alteration in original).

While the fourth circuit vacated the defendant’s sentence on other grounds, the fourth circuit concluded:

Defendant’s sole argument as to his excessive sentence claim is that the trial court failed to consider his mental illness in sentencing him. The trial court failed to consider any mitigating or aggravating factor for the record when sentencing defendant. As previously discussed, defendant’s sentences must be vacated because of the trial court’s failure to observe the 24-hour delay between denial of defendant’s motions for new trial and in arrest of judgment. Defendant did not prove by any objective evidence that he suffered from mental illness at the time he perpetrated any of the offenses for which he was convicted. However, the record suggests that defendant may suffer from and/or may have suffered in the past from a serious mental illness, paranoid schizophrenia. Therefore, the trial court must consider whatever evidence there is of defendant’s mental illness as a factor when resen-tencing him.

Id. at 1196.

In the current case, at the sentencing hearing, after the trial court asked defense counsel if he and Defendant had a chance to review the presentence investigation report, Defendant began to contest certain facts listed in the report and concluded with calling the prosecutor an “imbecile right there on a malicious prosecution.” The trial court had also officiated at an order of protection hearing instituted by Defendant’s girlfriend, and Defendant commenced attacking the trial court for whatever outcome resulted from the order of protection hearing. The Defendant called the trial court “sick”, and said “you need to drop that dress that you’re wearing right now, get your ass up off of that stand and send me another judge’ cause I want you recused.” Defendant continued his tiradé as the trial court attempted to calm him down. Eventually, the trial court ordered Defendant to be quiet or his mouth would be duct-taped shut. However, Defendant continued to [9insult the State during its argument regarding what sentence would be most appropriate for Defendant. Finally, the following occurred:

MR. LAFLEUR: —you’re not — no, don’t say Mr. Lopez. I ain’t married to that tall, beautiful—
THE COURT: Mr. Lafleur,—
MR. LAFLEUR: —prostitute that you and Judge Gunnell’s—
THE COURT: Mr. Lafleur,—
MR. LAFLEUR: —f—Idng over that desk.
THE COURT: Mr. — you’re going to do what, sir?
MR. LAFLEUR: I said — I said who you and Judge Gunnell’s f — king over that desk to award her such favor. It’s all over the internet.
THE COURT: I was going to give you a suspended sentence.
MR. LAFLEUR: It’s all over the internet. It’s all over the public radio.
THE COURT: Ten years hard labor, period. Take him away.

As in Foster, in the current case, there is nothing in the sentencing record to indicate that the trial court gave consideration to Defendant’s mental illness when it sentenced Defendant to the maximum sentence for the offense of aggravated assault with a firearm.

At the July 10, 2015 sanity commission hearing, Patrick Hayes, a board certified psychiatrist, testified regarding his evaluation of Defendant’s competency to proceed to trial. Doctor Hayes submitted an extensive report to the trial court which included Defendant’s mental health history and a recommendation as to his ability to proceed to trial. In the report, the doctor summarized as follows:

Mr. Lafleur’s deficits are not complete, but can be ascribed to serious, persisting mental illness. While he has sufficient cognitive and intellectual capabilities to understand the Tactual process, his untreated affective and psychotic illness ..yields mixed or manic symptoms, | lflclelusional symptoms, and psychotic paranoia of an intensity severe enough to render him not competent to stand trial at this time. In other words, his legal self-service is materially impacted in a negative manner by his mental illness.

At the hearing, the doctor testified that Defendant’s “symptoms of illness are such that they will likely be exacerbated by a trial.” Noting Defendant’s propensity to not comply with medication, the doctor recommended that Defendant be committed to Eastern -Louisiana Mental Health System.

James Anderson, a medical doctor specializing in psychiatry, agreed with Doctor Hayes’ evaluation. In Doctor Anderson’s report, submitted into evidence, he stated:

The records indicate that Mr. Lafleur has a history of psychiatric hospitalizations, a diagnosis of schizophrenia, paranoia, and non-compliance with medication. His medical records document that he was hospitalized in July and November 2005 with suicidal ideation, auditory hallucinations, and alcohol, methamphetamine and cocaine abuse. In February 2011 he was hospitalized with depression, auditory hallucinations, homicidal ideation, alcohol abuse and THC abuse. In addition to psychosis the records document a history of traumatic brain injury.

At the hearing, regarding Defendant’s mental illness, Doctor Anderson testified:

“[CJonsidering the nature of his charges and the legal history that I reviewed, his history of polysubstance abuse, his psychiatric history that included hallucinations and homicidal ideation and the fact that he was noncompliant with medication at that point in time, it was my opinion that he should not be — that he needed inpatient treatment — he needed treatment, first of all, and it wouldn’t be outpatient treatment because he wouldn’t be compliant so it was my opinion that he be admitted to the state forensic hospital.

As noted above, the trial court began the sentencing hearing by asking if Defendant had an opportunity to review the presen-tence investigation report and would he like to make a statement. At this point, Defendant more or less took over the hearing. The only other person to address to any degree of the sentence was lnthe State’s attorney, who pointed out Defendant’s criminal history and recommended a substantial sentence. The only indication the trial judge had considered a sentence, prior to Defendant’s outburst, was the statement that he was going to give Defendant a suspended sentence. In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183, it was noted that in order to fashion an appropriate sentence for a defendant, the trial court should take into consideration the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts.

The only information regarding Defendant’s background came from the presen-tence investigation report. The report indicated that Defendant was essentially raised by his grandparents and had no relationship with his parents or siblings. There was evidence of physical and emotional abuse. Defendant began doing drugs and alcohol at a very early age. He dropped out of high school in the ninth grade but obtained his GED. At the time of the report, Defendant was thirty-nine years old.

The report also contained a summary of his mental health history, taken from the reports submitted by Doctor Hayes and Doctor Anderson. The presentence investigation report also noted Defendant’s criminal history, which was as follows: 1999, aggravated assault, one year unsupervised probation; 2001, an arrest in Texas for assault with bodily injury of a family member, dismissed; 2003, aggravated assault, six months in the parish jail, suspended, one year unsupervised probation; 2006, driving while intoxicated in Texas, sixty-three days jail, twelve months’ probation; and the current offense.

[ 12Except for the above information, nothing was revealed at the sentencing hearing which supported the trial court’s imposition of the maximum sentence other than Defendant’s bad behavior towards the trial court, the prosecutor, and even his own counsel. In State v. Sibley, 09-1104, p. 7 (La.App. 3 Cir. 6/2/10), 41 So.3d 581, 585-86 (alterations in original), while examining whether the trial court failed to consider Mr. Sibley’s mental illness as a mitigating factor when it imposed an alleged excessive sentence, this court noted:

Louisiana Code of Criminal Procedure Article 894.1(C) states, “[t]he court shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” The goal of Article 894.1 is the “articulation of the factual basis for a sentence ... not rigid or mechanical compliance with its provisions.” Therefore, “where an adequate factual basis for the sentence imposed” is evidenced in the record, “remand is unnecessary, even where there has not been full compliance with Article 894.1.” State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v. Pleasant, 99-2349 (La.App. 4 Cir. 11/8/00), 772 So.2d 910, writ denied, 00-3349 (La. 10/26/01), 799 So.2d 1159. A remand for resentenc-ing on a fuller statement of reasons is necessary only when there appears “to be a substantial possibility that the defendant’s complaints of an excessive sentence [have] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982) (emphasis added).

In Sibley Id., the defendant received two sentences of thirty years each, one for attempted first degree murder and one for armed robbery, to be served concurrently. This court found that the trial court more than adequately addressed mitigating and aggravating factors, and, although it did not specifically state that it was considering the defendant’s alleged mental illness, the trial court did note that it was uninformed as to whether the defendant’s problem developed before or after his military service. There was testimony at the sentencing hearing by the defendant’s mother that the defendant was “messed up” after his military service, an evaluation was submitted to the trial court from a medical doctor stating that the defendant suffered from schizoaffective and posttrau-matic stress disorders, and the 11 atrial court discussed the defendant’s criminal and social history. The trial court further noted the defendant received a significant benefit when he pled guilty in exchange for the State dismissing several other charges that were associated with the two current convictions. This court concluded there were sufficient facts in the record to support the defendant’s sentences, and there was no merit to the defendant’s contention that the trial court failed to consider mitigating evidence.

In State v. Legendre, 522 So.2d 1249 (La.App. 4 Cir.), writ denied, 523 So.2d 1321 (La.1988), the defendant was convicted of second degree battery and sentenced to the maximum sentence of five years at hard labor. As in the current case, the defendant alleged that the trial court failed to consider as a mitigating factor his mental illness; thus, the maximum sentence was excessive. The fourth circuit stated:

The Louisiana Constitution prohibits the imposition of excessive punishment. La. Const. Art. I, Section 20. Trial judges are vested with wide discretion in imposing sentences; however, that discretion is not unbridled. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982); appeal after remand 446 So.2d 1210 (La. 1984). A sentence may be found to be unconstitutionally excessive when considered in light of the particular defendant and the circumstances of the particular crime even if it falls within the statutory limit. Id.
This principle is especially relevant when the maximum penalty has been imposed. Maximum sentences are considered particularly suspect because they are reserved for the most serious violation of the charged offense and the worst kind of offender. State v. Santee, 464 So.2d 922, 926 (La.App. 4th Cir. 1985). Maximum sentences can be justified only in cases classified as “extreme” by the factual circumstances of the offense and the apparent dangerous proclivities of the defendant. State v. Ransome, 441 So.2d 425, 428 (La.App. 2d Cir.1983). “Nothing else will justify the great sentencing discretion given the trial judge in Louisiana.” State v. Jones, 398 So.2d 1049, 1053 (La.1981).
La.C.Cr.P. art. 894.1(C) requires that the trial judge state for the record the considerations taken into account and the factual basis therefor in imposing sentence. The judge in the instant case made the following statement at the sentencing hearing:
| 14The defendant stands convicted of the crime of second degree battery. The Court has considered sentence pursuant to Code of Criminal Procedure, Article 894.1 A and B, and in accordance with Code of Criminal Procedure, Article 894.1 C, hereby states for the record the considerations taken into account and the factual basis, therefor, in imposing sentence.
The defendant is 44 years old, divorced, and has an 18 year old son who lives with the victim in this case. He also has two daughters whose whereabouts are unknown. The defendant has a long history of mental problems and has been in and out of hospitals on numerous occasions. He has been diagnosed as chronic paranoid schizophrenic and has been treated with various medications which he continually resists.
While this defendant has no previous convictions he has been arrested eight times for offenses ranging from theft to assault and battery. He has an extremely violent disposition and has attacked his wife and other family members, according to the pre-sen-tence report, on numerous occasions.
In the instant case, the defendant kicked in the door of his sister’s house, threw a glass table top at her and then choked her and threw her against the wall inflicting injuries upon her. The defendant’s main problem, according the pre-sentence report, lies in his lack of insight to his illness and his refusal to take prescribed medication away from the hospital.
The reporting person finds that the defendant is a threat to the community itself and recommends that he be incarcerated as long as legally possible.
It is, therefore, the sentence of this Court that the defendant, Ridge Legendre, serve five years at hard labor in the custody of the Department of Corrections.
Appellate review of the sentence imposed is confined to consideration of whether the trial judge abused his great discretion when the judge has complied with La.C.Cr.P. art. 894.1 by stating the individual considerations and factual bases for the sentence. State v. Finley, 432 So.2d 243, 245 (La.1983). Review of abuse of discretion is controlled by the following factors, examined in light of the criteria provided in article 894.1 (A) and (B): (1) nature of crime, (2) nature and background of offender and (3) sentences imposed for similar |1Bcrimes by the same court and other courts. Id, Defendant’s personal history, such as age, marital status, dependents, family stability, employment, mental, emotional and physical health, is one of the factors to be taken in account in sentencing decisions. State v. Crawford, 410 So.2d 1076, 1078 (La.1982).
La.C.Cr.P. art. 894.1, which provides guidelines for determining whether a defendant should be subjected to imprisonment or suspension or probation, does not specifically list mental illness as a mitigating circumstance to be taken into account to reduce k sentence. However, Louisiana caselaw does indicate that mental illness should be used as a mitigating circumstance. In State v. Price, 403 So.2d 660 (La.1981), the court found that the defendant had proven that he had suffered from a “deranged mental condition”, which “[did] not absolve defendant of criminal responsibility for his actions, but [did] tend to excuse or explain his behavior.” Id. at 664. The court found that that factor should have been weighed in sentencing. See also State v. Hart, 397 So.2d 618 (La.1981), where the court indicated that the fact the defendant was diagnosed as schizophrenic should have served as a mitigating circumstance in sentencing.
More recently, the Louisiana Supreme Court has indicated that the mitigating circumstances set out in La.C.Cr.P. art. 905.5, which expressly applies only to decisions regarding capital punishment, should be used as mitigating circumstances in other sentencing decisions. In State v. Lodrige, 414 So.2d 759 (La. 1982), the court lists the mitigating circumstances from that article, stating that they were applicable in that case, which involved the appeal of a six-year sentence at hard labor for attempted aggravated burglary. Id. at 761. One of the mitigating circumstances specifically listed in C.Cr.P. art. 905.5 is the following: “The offense was committed while the offender was under the influence of extreme mental -or emotional disturbance.”

Id. at 1251-53 (alterations in original).

The fourth circuit concluded its analysis by vacating the sentence and remanding, stating:

When persons with recognized, diagnosed mental illnesses are convicted of crimes, that condition should be considered to mitigate the type and length of sentence imposed on the offender, even if he has been ruled legally sane. Incarceration of a mental- patient in a. penal institution for the maximum period of time applicable to the crime is not in keeping with the standards established by courts of this state, or with the theory of punishment and retribution.

Id. at 1253.

Interestingly, upon remand of Legendre, the trial court imposed the same sentence. On appeal, the fourth circuit noted, the trial court’s reasoning, as follows:

The Court of Appeals had remanded for reconsideration of sentence. Upon such reconsideration, the Court has found insufficient reason to alter the sentence originally imposed.
Mental problems notwithstanding, the defendant was found to be competent by a duly appointed sanity commission. His crime was atrocious and clearly illustrated a dangerous proclivity set forth in the pre-sentence report.
With due respect it is not accurate to say that this Court did not consider the defendant’s mental condition as a mitigating factor. This factor was simply outweighed by the extremely dangerous conduct involved. This Court .is not without sympathy for the defendant, but the Court cannot permit sympathy to color its judgment or bias against the needs of the community.

State v. Legendre, 548 So.2d 1277, 1278 (La.App. 4 Cir. 1989). This time, the fourth circuit affirmed the sentence, stating that “[t]he trial judge clearly stated that he considered the defendant’s mental condition as a mitigating factor, but felt that condition was outweighed by the aggravating circumstances of an extremely ‘atrocious’ act. The trial court obviously took into consideration the defendant’s mental illness.” Id.

We find that the trial court abused its considerable discretion when it sentenced Defendant to the maximum sentence without any articulation of the aggravating or mitigating factors, particularly considering that there was strong evidence of Defendant’s mental illness. While Defendant did have a criminal history, the facts of the case were not near as “atrocious” as in Legendre. As noted above in the fact section, Defendant accused the victim of some misperceived [^occurrence between the victim and Defendant’s son. Defendant pointed the rifle at the victim, then lowered the rifle and walked away. Defendant’s behavior in the courtroom the day of sentencing was a strong indication of his mental illness, and the trial court’s admission that it was going to give Defendant a suspended sentence suggests that the trial court may have initially considered Defendant’s mental illness but then reacted adversely to Defendant’s profaned exclamations. For these reasons, we vacate the sentence and remand the matter to the trial court to sentence Defendant, giving consideration to Defendant’s mental illness.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues he was denied his right to represent himself. In State v. Daigle, 07-928, pp. 7-8 (La.App. 3 Cir. 1/30/08), 974 So.2d 869, 873, this court stated:

This court’s position on issues of an accused’s right to counsel and right to represent himself and whether these rights had been violated is well established. In [State v.]Whatley, [03-655 (La. App. 3 Cir. 11/5/03),] 858 So.2d [751] at 765-66, this court quoted with approval [State v.] Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d [683] at 685-86, as follows:

A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI; La. Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the | isaccused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In the current case, a minute entry dated July 9, 2014, indicates that Defendant advised the trial court he desired to represent himself. The trial court advised him against self-representation. Defendant then told the trial court he wished for counsel to be appointed. The trial court appointed Public Defender David Marcan-tel to represent Defendant. On September 10, 2014, a minute entry indicates that Defendant again requested that he represent himself. The trial court advised Defendant of the procedure on how to request self-representation. At this hearing, the State asked for a sanity commission to be appointed. The trial court advised Defendant that a sanity commission would indicate whether he had the capacity to represent himself. A sanity commission hearing date was set for November 10, 2014. Defendant was deemed incompetent to assist in his defense at trial and was admitted to Eastern Louisiana Mental Health System for treatment. He was deemed competent to proceed to trial on October 2, 2015. On December 15, 2015, after trial commenced, Defendant sought to fire defense counsel. The trial court denied the request for new counsel but stated that Defendant could assist Mr. Mareantel.

On July 10, 2015, the date scheduled for the first sanity commission hearing, the trial court stated to Defendant’s defense counsel, David Mareantel, the following:

[19A11 right. Let me put some things on the record. Mr. Mareantel, I — I thank you for coming. I asked you to come in case — in case he — well, I have the docket number, yeah. This is State of Louisiana — the docket number is CR 702-13, Daniel [sic] Lewayne Lafleur, thirty-first Judicial District Court. I — when I last had Mr. Lafleur in the courtroom on his — I’m appointed by the Supreme Court on all of his matters, his custody case, his protective order, and also these criminal charges, and last when I had him in court, he indicated to me that he wanted to — he wanted to represent himself and not represent you — and be represented by you, and I indicated to him that he’d have to file a written motion and send you a certified letter, and I understand he has not done that.
MR. MARCANTEL: That’s correct.

The above was the extent of any request for self-representation in the record before this court. Defendant has shown nothing to substantiate that the trial court denied him the right to self-representation. There is no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that the jury was illegal. He contends that pursuant to La.Code Crim.P. art. 782, he should have had a jury of twelve since he was sentenced to hard labor rather than the six that composed his jury. As noted above, the aggravated assault with a firearm statute provided for a range of punishment of “not more than ten years, with or without hard labor[.]” La. R.S. 14:37.4. However, La.Code Crim.P. art. 782(A) provides:

Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

lanThe trial court had discretion on whether to sentence Defendant to hard labor pursuant to the statute. Accordingly, Defendant was entitled to a jury of only six members.

We find there is no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues that the State failed to take him to trial in a timely manner, so he is entitled to have the bill of information quashed. He points out that he was charged on October 31, 2013, but did not go to tidal until December 15, 2016, approximately a year and two months past the time limitation.

Louisiana Code Criminal Procedure Article 578 provides:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
B. The offense charged shall determine the applicable limitation.

In Defendant’s case, he was charged with a non-capital felony. Accordingly, the State had two years from the date of institution of prosecution in which to take Defendant to trial. However, La.Code Crim.P. art. 579, in pertinent part, provides:

A. The period of limitation established by Article 578 shall be interrupted if:
12i(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In this case, a sanity commission was ordered on July 10, 2015. For more than one year, all proceedings were stayed. La. Code Crim.P, art. 642. Defendant was deemed capable to assist in his own defense on October 2, 2015, Accordingly, the time delay in which to take Defendant to trial was reset after the cause of the interruption ceased to exist, and the State then had until October 2, 2017, in which to take Defendant to trial.

We find there is no merit to this assignment or error.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues the State impermissi-bly submitted evidence of Defendant’s other crimes without filing a notice of intent prior to trial. Defendant argues the State admitted the evidence of his prior convictions for the purpose of proving that he committed the charged offense in violation of La.Code Evid, 404(B). However, the only time Defendant’s prior convictions were mentioned during trial was during cross-examination of Defendant. Louisiana Code of Evidence Article 609.1(A) and (B) provides that a witness may be questioned about the fact of prior convictions with details of the conviction being admissible only under limited circumstances.

We find there is no merit to this assignment of error.

As for the remainder of Defendant’s pro se allegations of error committed by the State or by the trial court, the assertions are all variations of the above | ^discussed assignments of error, or the allegations are conclusory and unsubstantiated. Therefore, we will not discuss these assignments of error.

DECREE

We find no merit to Defendant’s pro se assignments of errors. However, we do find merit to Defendant’s assertion that the maximum sentence of ten years at hard labor was constitutionally excessive under the circumstance of the case. Therefore, we vacate the sentence and remand the case to the trial court for resentencing to consider Defendant’s mental illness at the time of the offense as a mitigating factor.

SENTENCE VACATED; REMANDED FOR RESENTENCING.


source: Caselaw Access Project

author: EZELL, Judge. SAUNDERS, J.

license: Public Domain

text:
    Marion E. BARTLEY v. GARDEN VIEW ASSISTED LIVING
    WCA 16-611
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 01/04/2017
    Rehearing Denied February 22, 2017

      Matthew D. McConnell, Matthew R. Reed, P.O. Box 52024, Lafayette, LA 70505-2024 (337) 347-6404, COUNSEL FOR PLAINTIFF/APPELLANT: Marion E. Bartley
    Jeremy N. Morrow, Jaclyn Bridges Bacon, 1001 W. Pinhook Rd., Suite 200, Lafayette, LA 70503, (337) 237-7000, COUNSEL FOR DEFENDANT/APPELLEE: Garden View Assisted Living
    Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie, Judges.
   EZELL, Judge.

11Marion Bartley (Ms. Bartley) appeals the finding of the workers’ compensation judge that she forfeited her rights to workers’ compensation benefits by committing fraud under La.R.S. 23:1208. For the following reasons, we hereby affirm the decision of the workers’ compensation judge.

Ms. Bartley was employed as a cook at Garden View Assisted Living (Garden View). On August 19, 2014, she fainted and collapsed in the kitchen. She was sent to the hospital via ambulance, as the staff at Garden View believed she had suffered a stroke. Luckily for Ms. Bartley, a stroke or cardiac event was ruled out, though she was eventually found to have a torn su-praspinatus tendon in her shoulder. She instigated the current workers’ compensation claim, alleging that the shoulder injury was a result of the fall. Garden View answered, alleging fraud under La.R.S. 23:1208 and contending that she failed to disclose prior shoulder injuries on a post-hire medical form and in the investigation surrounding the incident. After trial on the matter, the workers’ compensation judge found that Ms. Bartley had suffered a workplace accident that would entitle Ms. Bartley to workers’ compensation benefits, but that she had forfeited the right to those benefits by committing fraud pursuant to La.R.S. 23:1208. From that decision, Ms. Bartley appeals.

On appeal, Ms. Bartley asserts two assignments of error. She claims that the workers’ compensation judge erred in finding forfeiture was allowed under 12 La.R.S. 23:1208, where she claimed the statements regarding her prior medical history were due to confusion, rather than intentional deceit. She also claims that the workers’ compensation judge erred in finding she failed to prove her allegations that Garden View committed fraud under La.R.S. 23:1208.

Ms. Bartley’s first claims that the workers’ compensation judge erred in finding that Garden View proved that she committed fraud.

Louisiana Revised Statutes 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The Louisiana Supreme Court in Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 14 (La. 9/5/95), 660 So.2d 7, 16, addressed the proof required under La. R.S. 23:1208:

By its plain words, Section 23:1208 requires only that 1) the claimant make a false statement or representation, 2) the statement or representation be willfully made, and 3) the statement or representation be made for the purpose of obtaining workers’ compensation benefits.
The legislature has made a policy decision that willful and deliberate false statements made specifically for the purpose of obtaining workers’ compensation benefits is an attempt to defraud the workers’ compensation system and should be dealt with harshly. The legislature has shown a continued effort over recent years to make Section 1208 easier to enforce and to make its penalties stronger.

The Resweber court noted that false representations must be made for the purpose of obtaining benefits and must be more than inadvertent or inconsequential statements. The court stated:

|sIt is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. at 15-16. Louisiana Revised Statutes 23:1208 applies to statements made to insurance investigators and physicians alike; and it imposes no requirement that the employer show prejudice. Id.

A decision to impose or deny forfeiture under La.R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp., 41,957 (La. App. 2 Cir. 3/7/07), 954 So.2d 207, writ denied, 07-720 (La. 5/18/07), 957 So.2d 155. To reverse a fact finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). When there are two permissible views of the evidence, the workers’ compensation judge’s choice between them can never be manifestly erroneous or clearly wrong. Id. Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

In brief, Ms. Bartley asserts that the workers’ compensation judge improperly weighed the evidence against her. However, as a reviewing court, it is Lundeniable that we are not permitted to reweigh the evidence or reach our own factual conclusions from the record. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253. Having reviewed the record before us, we cannot find error in the workers’ compensation judge’s finding that Ms. Bartley deliberately made false statements in order to receive workers’ compensation benefits.

When she was hired at Garden View, Ms. Bartley stated in a post-hire medical form that she had no history of tingling in her arms or fingers, no difficulty lifting, and no shooting pain from her neck or upper back to her arms. She also denied any history of neck pain or injury, or shoulder pain. She further denied being placed on restricted activities by a doctor.

In a recorded statement made to Kermit Smith as part of the investigation by Garden View’s workers’ compensation insurer, Ms. Bartley stated she had never filed a workers’ compensation claim or received workers’ compensation benefits. She denied having any shoulder pain or problems prior to her fall at Garden View. She likewise claimed that she had never missed work due to injury, never had problems lifting, or was limited in working by a doctor prior to the Garden View fall. However, counsel for Garden View surgically deployed a catalog of medical records that directly undercut the statements and testimony Ms. Bartley made regarding her shoulder injury.

As established by Garden View at trial, a review of Ms. Bartley’s medical records show multiple complaints of neck, arm, and shoulder pain dating back to 2006. In January 2006, she presented to Iberia Medical Center with a chief complaint of left arm numbness and pain when lifting that was an eight, on a scale of one to ten. At trial, Ms. Bartley claimed that she never had arm, shoulder, and |Kneck symptoms prior to 2008, in direct contradiction to this evidence. Her medical records show these complaints and pain level were repeated at two subsequent follow-up appointments that month.

Then, despite direct testimony that she never had pain up and down her arm when lifting prior to her Garden View fall, in January 2008, Ms. Bartley presented to her employer at that time, Cypress Bayou Casino, with an injury to her shoulder from lifting five and ten gallon buckets. She then presented to the emergency room indicating left arm and neck pain. She was diagnosed with a cervical strain and had several follow-up procedures to deal with that pain, including x-rays and MRIs, and was restricted in her work duties. She was prescribed physical therapy from two separate doctors for her neck and shoulder pain at that time. At one appointment, she stated her shoulder pain was at a ten out of ten level with motion. Once her strain began to resolve, it became clear to her doctors that she also had Carpel Tunnel Syndrome, which she had surgery for in May 2008.

Further, at trial, she testified that she had no problems with her hands or arms and was able to return to work with no restrictions after the Carpel Tunnel release surgery. This was likewise refuted by her medical records. Her medical records show that despite a well-healed, successful surgery, she again complained to her doctors and physical therapists of numbness from her left hand to shoulder, in July, August, and September of 2008, often while lifting things at work, or holding her grandchild. This pain was found to be of “undetermined etiology”.by her orthopedic surgeon.

These numerous contradictions severely undermine Ms. Bartley’s testimony and credibility, and also provide a reasonable factual basis for the workers’ compensation judge’s finding that Ms. Bartley willfully and knowingly attempted Rto hide her injury. Hence, a reasonable factual basis does exist for the finding of the workers’ compensation judge. In that light, there is no way we can find the workers’ compensation judge committed manifest error in its findings.

Ms. Bartley next claims that the workers’ compensation judge erred in denying her claim that Garden View committed fraud under La.R.S. 23:1208. The first mention that Ms. Bartley makes of fraud is in her post-trial brief to the workers’ compensation judge. Garden View claims that Ms. Bartley should not be able to make claims concerning La.R.S. 23:1208, as she did not plead them. While- sympathetic to Garden View’s assertion due to the timing of the allegations, we will address this assignment of error for the sake of thoroughness, as the law is well settled that pleadings may be enlarged by evidence-bearing on the affirmative defenses, adduced without objection, providing that the evidence is not pertinent to any other artfully pleaded issues. La.Code Civ.P. art. 1154. Hopkins v. American Cyanamid Co., 95-1088 (La. 1/16/96), 666 So.2d 615; Harmon v. Simon, 624 So.2d 981 (La.App. 3 Cir. 1993). In the case sub judice, Garden View’s counsel did not object to the testimony giving rise to Ms. Bartley’s allegations.

Ms. Bartley claims that employees of Garden View, Edie Cassleman and Keri Simon,' knowingly withheld information from Garden View’s workers’ compensation insurer to prevent her from receiving benefits. However, there is no evidence in the record whatsoever to support that claim. The record shows that both Ms. Cassleman and Ms. Simon believed that Ms. Bartley suffered a stroke or cardiac event the day she fainted. While they were aware Ms. Bartley may have struck her head in the fall, neither saw any sign or evidence of injury to her head or any other part of her body. Moreover, Ms. Bartley has never claimed any injury to her head whatsoever, even to this day. When she was able to speak, Ms. Bartley | ^indicated that she felt no pain after her fall. As such, Ms. Bartley was sent to the hospital in an ambulance under the belief she had suffered a stroke. Ms. Cassleman and Ms. Simon testified that Ms. Bartley never contacted them regarding a workers’ compensation claim and that they were unaware of any injury until Garden View was contacted by Ms. Bartley’s attorney regarding the matter months after the fall. They testified that no workers’ compensation claim was forwarded to Garden View’s insurer because of their belief that Ms. Bartley had experienced a stroke, rather than a workplace injury. This testimony supports the the workers’ compensation judge’s finding that Ms. Bartley failed to prove that Garden View committed fraud under La.R.S. 23:1208. As the workers’ compensation judge’s finding has a reasonable factual basis, it cannot be manifest error. This assignment of error has no merit.

For the above reasons, the findings of the workers’ compensation judge are hereby affirmed. Costs of this appeal are assessed against Ms. Bartley.

AFFIRMED.

Saunders, J., dissents and assigns reasons.

SAUNDERS, J.

DISSENTS WITH WRITTEN REASONS.

hln January of 2006, claimant suffered from left arm pain and numbness. This pain continued through January of 2008 in addition to neck pain. Claimant subsequently underwent surgery in May of 2008 after being diagnosed with Carpal Tunnel Syndrome, all of which originated in her wrist and caused the arm and neck pain. Pain from this condition was recorded again throughout July, August, and September of 2008. Claimant maintains that the pain eventually subsided, and claimant continued to work in various positions and locations, including beginning her employment with Defendant. Claimant was employed by Defendant two years prior to the August 19, 2014 fall, the accident from which the current case arises.

Louisiana Revised Statute 23:1208 provides, in pertinent part:

A. It shall be unlawful for any purpose, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself of for any other person, to willfully make a false statement or representation.

As stated above, any false statements or representations must be made for the purpose of obtaining benefits or payments under workers’ compensation. Based on the record and timeline of events, it appears that claimant made statements concerning her medical history in order to obtain employment, not to defraud the system for workers’ compensation benefits. Moreover, there is confusion, as Lshown in the record, as to the claimant’s exact understanding of the nature of her previous injuries. She has at all times maintained that the injuries related to her Carpal Tunnel diagnosis were contained to her wrist, which was remedied by surgery in May of 2008. The injury in the case at hand is a tendon injury in her shoulder, completely unrelated to her previous wrist injury.

Accordingly, I cannot agree with the proposed majority opinion. I respectfully dissent.

      . Ms. Bartley claims three assignments of error in brief, rather than the two addressed above. However, her third alleged "assignment of error” is that she should be awarded attorney fees for this appeal. Clearly, seeking attorney fees for work performed on appeal is not a true allegation of any error on the part of the workers’ compensation judge. Additionally, this assignment of error is not briefed, meaning we need not address it. Uniform Rules-Courts of Appeal, 2-12.4. We will note for the sake of thoroughness, though, that our finding below would render this assignment of error moot, even if it had been properly argued.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Kathleen Dimitry WALL.
    No. 14-KA-539.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 23, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Gail D. Schlosser, Jeffrey Hufft, Assistant District Attorneys, Gretna, Louisiana, for Plain-tiffiAppellee.
    Cynthia K. Meyer, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

[ 2Pefendant, Kathleen Wall, appeals her conviction and sentence for operating a vehicle while under the influence of a controlled dangerous substance, having been previously convicted three times, in violation of La. R.S. 14:98(A)(E). For the following reasons, we affirm defendant’s conviction but vacate the sentence imposed and remand for resentencing in compliance with La. R.S. 14:98(E).

STATEMENT OF THE CASE

On April 3, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with operating a vehicle while intoxicated, having been previously convicted three times, in violation of La. R.S. 14:98(A)(E). Defendant was arraigned and pled not guilty.

Defendant proceeded to trial and a six-person jury unanimously found defendant guilty as charged. On May 9, 2014, defendant filed a motion for new trial, which the trial court denied. On that same date, the trial court sentenced | ^defendant under La. R.S. 14:98(E) to ten years imprisonment at hard labor with eight years of the sentence suspended. The trial court further ordered that defendant be placed on active probation for five years upon her release with the first year of probation on home incarceration. In addition to the general conditions of probation, the trial judge ordered that defendant pay a $5,000.00 fíne, participate in 40 eight-hour days of community service, immediately undergo an evaluation and complete any recommended treatment, submit to inpatient treatment for a period of not less than three months followed by outpatient treatment for not less than one year, and not drive for the duration of probation. This timely appeal follows.

FACTUAL BACKGROUND

Detective Roy Lambert with the Jefferson Parish Sheriffs Office testified that on Saturday, October 20, 2012, at approximately 7:00 a.m. or 8:00 a.m., he received a call regarding a female asleep at the wheel of a vehicle parked at a Shell gas station located at 5900 West Metairie Avenue in Jefferson Parish. After locating the vehicle matching the description provided by the dispatch, Detective Lambert observed defendant “slumped over the wheel” of the vehicle. He explained that the vehicle was “running” and was “pressed up against a raised sidewalk” at the gas station, as if the vehicle was unable to move any further. According to Detective Lambert, defendant appeared to be asleep and the vehicle was in the drive gear. He testified that the only thing preventing the vehicle from “running into” the business was the raised sidewalk.

Detective Lambert expressed that he was concerned for the welfare of defendant and knocked on the vehicle’s window several times, attempting to wake defendant. After several attempts to wake defendant, she appeared to slightly Uawaken but still appeared disoriented and tired. Detective Lambert instructed defendant to open the door but defendant had much difficulty locating the locking mechanism on the seat belt and had trouble orienting her finger directly to the button she was attempting to press.

Detective Lambert stated that he and other officers who had arrived on the scene asked defendant to exit the vehicle and, with much difficulty, she stepped out of the vehicle and nearly fell. Detective Lambert testified that, after defendant exited the vehicle, he entered the vehicle to apply the brakes and place the vehicle in the park position.

Detective Lambert explained that defendant had difficulty standing and more difficulty walking. After noticing defendant’s swayed balance, difficulty standing and walking without assistance, bloodshot eyes, and slurred speech, he decided to conduct a standardized field sobriety test. According to Detective Lambert, he checked defendant’s pupil size and looked for any involuntary jerking of the eyes, also known as nystagmus, while in a resting position. Detective Lambert conducted an actual nystagmus test and explained that defendant exhibited six out of the six clues he looks for during the horizontal nystagmus test and two out of the two clues he looks for in the vertical nystagmus test — which he stated indicates the influence of certain types of narcotics or high levels of alcohol.

Detective Lambert stated that he also attempted to conduct the “Walk-and-Turn Test.” He explained that, while administering the test, defendant attempted to proceed with the test prior to receiving instructions on how many steps to take and that it appeared as if defendant was about to fall. Detective Lambert stated that, given defendant’s unsteady balance, he decided that it was too dangerous for | sdefendant to proceed with the test. According to Detective Lambert, he believed that he had sufficient probable cause at that point to arrest defendant.

After he arrested defendant, Detective Lambert informed her of her Miranda: rights and transported her to the Harahan lockup facility, where he further advised defendant of her rights pertaining to chemical testing. Detective Lambert then obtained defendant’s verbal and written consent to conduct a blood test.

Captain Manuel Adams Jr. of the Hara-han Police Department testified that he worked at the Harahan lockup on the date of defendant’s arrest. Captain Adams testified that he is certified in Advanced Roadside Impaired Driving Enforcement (ARIDE) and explained that the ARIDE test checks for impairment due to any narcotic or drugs within the system. Captain Adams advised defendant of her rights and then conducted the Lack of Convergence test, which he explained identifies the possible presence of a narcotic in the system based on whether her eyes would properly cross when following a stimulus. According to Captain Adams, defendant exhibited a lack of convergence both times, indicating possible presence of narcotics in her system. On cross-examination, Captain Adams acknowledged that an unknown percentage of people are unable to cross their eyes. Captain Adams testified that he also conducted the Rhom-berg Balance Test, which checks for swaying, eye tremors, and “internal clock.” According to Captain Adams, defendant was sluggish, exhibited droopy eyelids, and stumbled. Further, he explained that defendant’s “internal clock” was extremely short as she indicated that only fifteen seconds had passed when actually thirty seconds had elapsed. Captain Adams testified that he believed he observed signs of impairment. CaptainJ^Adams further testified that, after he advised defendant of the results of the Rhomberg Balance Test, she admitted to taking a half a Lortab, a half a Xanax, and a Soma at approximately 5:00 a.m. that morning.

Nam Tran, a toxicology analyst for the State Police Crime Lab, testified on.behalf of the state that he received a request to perform a toxicological screen on a blood alcohol kit labeled as defendant’s blood. Mr. Tran stated that he performed testing on the blood alcohol kit and generated a report for the toxicology analysis. He testified that three controlled dangerous substances, Carisoprodol (also known as Soma), Meprobamate ' (a metabolite of Soma), and Hydrocodone (also known as Vicodin or Lortab, depending on the manufacturer), were detected in defendant’s blood. Mr. Tran stated that Carisoprodol and Meprobamate are both Schedule IV controlled dangerous substances and that Hydrocodone is a Schedule II controlled dangerous substance.

During cross-examination, Mr. Tran explained that the report does not indicate the quantity of the substances in defendant’s system but only that the substances were ■ present. He also stated that the report did not determine the amount of time that had elapsed since defendant ingested the substances! On redirect, Mr. Tran explained the difference between drugs found in urine and drugs found in blood. He testified that urine indicates the back history of the substances in an individual’s system for a longer period of time but explained that it is common knowledge that if the drug is circulating in the bloodstream, then it is “immediate.”

Sergeant Joel O’Lear of the Jefferson Parish Sheriffs Office was accepted as an expert in latent print examination by stipulation. Sergeant O’Lear testified on behalf of the state and explained that he compared defendant’s fingerprints to the arrest print cards attached to the three certified conviction packets introduced 17into evidence. He testified that the defendant’s fingerprints from the date of trial matched the fingerprints from the three prior convictions for violations of La. R.S. 14:98 (Operating a Vehicle while Intoxicated).

Fred Bodungen, defendant’s husband, testified that he and defendant lived on Lark Street in Metairie, approximately two and a half blocks away from the Shell gas station where the incident occurred. Mr. Bodungen explained that his daily routine was to visit the gas station each morning to purchase breakfast for his wife. Mr. Bodungen explained that if defendant does not eat, she becomes jittery, begins vomiting, and has to go to the hospital. He explained that her condition is from her medical issues and not from the prescribed drugs. Mr. Bodungen stated that he was not with defendant on October 20, 2012, because he was unable to wake up that morning.

Mr. Bodungen testified that defendant had been disabled for approximately eight years. He explained that defendant has chronic illnesses, including bleeding ulcers, spurs on her heels, and back problems. Mr. Bodungen also testified that defendant had hernia surgery, which still causes her problems, and was advised to schedule a gallbladder operation as soon as possible.

Mr. Bodungen acknowledged that defendant understands that there is a risk in taking her medications and operating her vehicle. He further acknowledged that defendant knew that she should not have driven on the date of the incident and that she made the decision to drive herself. Mr. Bodungen explained that defendant was unable to walk to the store because of the pain from her heel spurs. He also testified that defendant was easily stressed, which affects her ability to follow instructions.

DISCUSSION

On appeal, defendant assigns as error the sufficiency of the evidence against hel-as well as the trial court’s denial of her request for mistrial. We address each assignment of error in turn.

Sufficiency of the Evidence

In her first assignment of error, defendant challenges the sufficiency of the evidence against her. Defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant was operating a vehicle while under the influence of a controlled dangerous substance. Defendant argues that she was parked in a vehicle and that there was no testimony that she was observed operating the vehicle in which she was asleep. Defendant further contends that the State failed to exclude the reasonable hypothesis that defendant either became intoxicated after she parked her vehicle at the gas station or that she drove her vehicle to the gas station prior to exhibiting effects of the medications that she had ingested. Defendant also argues that the state failed to prove that she was a fourth offender with three prior convictions, as required under La. R.S. 14:98(E).

In reviewing the sufficiency of the evidence, an 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Michel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443; State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651.

In the present case, defendant was convicted of operating a vehicle while intoxicated in violation of La. R.S. 14:98(A)(E) after having been previously three times convicted of operating a vehicle while intoxicated. At the time of the offense, La. R.S. 14:98(A) provided, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
⅜ ⅜ $
(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964;

|inIn order to convict a defendant of operating a vehicle while intoxicated, the state must only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Vidal, 04-1139 (La. App. 5 Cir. 3/29/05), 901 So.2d 484, 487 (citing State v. Bourgeois, 00-1585 (La. App. 5 Cir. 3/14/01), 785 So.2d 848, 853). To convict a defendant of a fourth offense operating a vehicle while intoxicated, the state must also show that the defendant had three other valid convictions. State v. White, 44 So.3d 750, 755 (La.App. 5 Cir. 6/29/10).

The Louisiana Supreme Court has defined intoxication as the impairment, however slight, to the ability of a person to operate an automobile. State v. Delanueville, 11-379 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 20, writ denied, 12-0630 (La.9/21/12), 98 So.3d 325. The impairment need not be “whole” but only to the degree that the influence caused a person to operate the vehicle in a manner different from that in which it would be operated by an ordinarily cautious and prudent person. Id.; see also State v. Davis, 13-313 (La.App. 5 Cir. 10/30/13), 128 So.3d 1195, 1201-02, writ denied, 13-2748 (La.5/16/14), 139 So.3d 1023.

The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. The behavioral manifestations which are sufficient to support a charge .of driving while intoxicated must be determined on a case-by-case basis. Delanueville, supra.

La. R.S. 14:98 does not require proof that the defendant was driving a vehicle at the time of the offense, ¿'nd Louisiana jurisprudence recognizes that the term “operating” is broader than the term “driving.” State v. Rossi, 98-1253 (La.App. 5 Cir. 4/14/99), 734 So.2d 102, writ denied, 99-0605 (La.4/23/99), 742 So.2d 886. (See also State v. White, 09-1071 (La.App. 5 Cir. 6/29/10), 44 So.3d 750, 755, and State v. Sims, 426 So.2d 148, 151 (La.1983) (wherein the reviewing courts affirmed defendants’ convictions for operating a vehicle while intoxicated under similar facts where the defendants were found slumped over their vehicles’ steering wheels with the engines running.)) However, in order to operate a motor vehicle, defendant must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion. State v. White, supra.

In this case, Detective Lambert testified that he discovered defendant “slumped over the wheel” of her vehicle with the engine “running” in active “drive” gear and the vehicle “pressed up against a raised sidewalk” at the gas station. Detective Lambert further testified that defendant was disoriented and had difficulty standing and walking without assistance. He further stated that he observed that defendant had bloodshot eyes and slurred speech. He testified that defendant had difficulty maintaining balance and remaining awake during the field sobriety test.

Captain Adams testified that after conducting an ARIDE test on defendant, the results indicated the possible presence of narcotics in defendant’s system. He also testified that he observed signs of impairment or controlled dangerous substance issues including that defendant appeared sluggish, exhibited droopy eyes, and stumbled, Captain Adams also testified that defendant’s “internal clock” was extremely short as she indicated that only fifteen seconds had passed when actually thirty seconds had elapsed. Detective Lambert and Captain Adams both testified that defendant had trouble following, instructions and that defendant admitted to consuming one Soma, a half of a Xanax, and a half of a Lortab.

| ^Further, Mr. Tran testified that three controlled dangerous substances, Cariso-prodol (Schedule IV), Meprobamate (Schedule IV), and Hydrocodone (Schedule II) were detected in defendant’s blood. Accordingly, we find that the state presented sufficient evidence to show that defendant operated a vehicle while under the influence of controlled dangerous substances in violation of La. R.S. 14:98(A).

Concerning defendant’s argument that the state failed to prove the three predicate convictions to support her conviction as a fourth offender, we find this argument to be without merit. To convict a defendant of a fourth offense of operating a vehicle while intoxicated, the state must also show that the defendant had three other valid convictions. La. R.S. 14:98(E). State v. Delanueville, supra.

At trial, the state introduced three Jefferson Parish certified conviction packets, which included defendant’s guilty plea forms — signed by defendant and her counsel and dated April 3, 2006 — showing that defendant pled guilty to all three convictions of operating a motor vehicle in violation of La. R.S. 14:98. Further, Sergeant O’Lear, an expert in latent print examination, testified that his fingerprint examination showed that defendant was the same person convicted of the three previous charges of operating a vehicle while intoxicated. Accordingly, we find the state presented sufficient evidence to prove defendant’s predicate convictions. This assignment is without merit.

Motions for Mistrial

In her second assignment of error, defendant states that the trial judge erred in denying her two requests for mistrial. Defendant asserts that the state elicited opinion testimony regarding intoxication from two witnesses, Detective Lambert | isand Mr. Tran, contrary to the court’s granting of defendant’s pre-trial motion in limine.

Immediately prior to trial, defendant filed a motion in limine seeking to prohibit the state from eliciting opinion testimony from investigating officers concerning intoxication. After a contradictory hearing prior to trial, the trial judge granted the motion in limine, finding that the state could question the investigating officers regarding their “observations and indications” but could not elicit the investigating officers’ testimony of “opinions regarding intoxication.”

Under La.C.Cr.P. art. 771, a mistrial is discretionary when a witness makes an irrelevant remark that might prejudice the defendant. Article 771 gives the trial court the option to either admonish the jury, upon motion of the defendant, or, if an admonition does not appear sufficient, to declare a mistrial. State v. Adams, 13-992 (La.App. 5 Cir. 5/21/14), 142 So.3d 265, 272; State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 124, writ denied, 10-2546 (La.4/1/11), 60 So.3d 1248.

A mistrial should be granted under Article 771 only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, 86-87, writ denied, 09-626 (La.11/25/09), 22 So.3d 170; State v. Pierce, 11-320 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1271-72.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to a defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

In this appeal, defendant asserts that the trial judge abused her discretion in denying defendant’s two separate requests for mistrial, which took place during Detective Lambert’s and Mr. Tran’s testimony. For the following reasons, we find the trial judge did not abuse her discretion in denying defendant’s motions for mistrial.

Detective Lambert’s Testimony

During Detective Lambert’s testimony concerning the field sobriety test he administered to defendant, the following took place:

Q. When is vertical nystagmus present?
A. It’s present if there’s a certain— certain types of narcotic substances or an increasingly high level of alcohol. So there — it can range by degrees. The distinct nystagmus at the maximum elevation is much more pronounced, the higher levels of alcohol or the higher amounts of this particular controlled narcotic substance, which that’s the way with every test. It’s more distinct based on the amount.

Following Detective Lambert’s response, defense counsel requested to approach the bench and then moved for a mistrial. Defense counsel asserted that Detective Lambert’s testimony constituted opinion testimony concerning levels of intoxication and was thus improper under the trial court’s granting of the defense’s motion in limine. The prosecutor indicated he would “reign him in” and explained that through Detective Lambert’s training, he learned that vertical nystagmus is only present in certain cases. The trial judge denied defendant’s request for mistrial, but told the prosecutor to “watch that” and further instructed the jury to disregard the response to the last question. Thereafter, the prosecutor informed the witness to only testify concerning his observations or what he saw concerning the defendant.

|1BWe find that defendant has not shown that the trial judge’s denial of her request for mistrial resulted in substantial prejudice or the denial of a fair trial. The remainder of the testimony by both investigating officers reflects that defendant was impaired with slurred speech, bloodshot eyes, and difficulty standing and walking without assistance. Intoxication is an observable condition about which witnesses may testify. Delanueville, supra.

Upon defendant’s request, the trial judge instructed the jury to disregard the testimony at issue and the prosecutor continued questioning Detective Lambert, instructing him to only testify to his own observations from the date of the incident. We find that the trial judge did not abuse her discretion in denying defendant’s motion for mistrial. This argument is without merit.

Mr. Tran’s Testimony

Mr. Tran, a toxicology analyst for the State Police Crime Lab, testified on direct examination that he conducted testing on defendant’s blood and that the results showed a presence of three controlled dangerous substances, Carisoprodol (Schedule IV), Meprobamate (Schedule IV), and Hydrocodone (Schedule II). On cross-examination, defense counsel questioned Mr. Tran concerning whether he was able to detect “levels” or quantity of the substances in defendant’s blood, to which Mr. Tran replied that he was only able to detect the presence of the substances in defendant’s blood and was unable to detect the quantity or levels of the substances detected in defendant’s blood. Defense counsel further questioned Mr. Tran about “retrograde extrapolation!;,]” which is the metabolism of alcohol or drugs in the blood system, and questioned whether he could interpret the report to determine how long the substances had been in defendant’s system. On redirect examination, the prosecutor asked the following:

|1fiQ. And what is the difference as far as how long drugs are in your system between ... blood versus urine?
A. Blood — urine is a — is a waste product. And what urine does, it tells your back history of what was in that person’s system for a longer period of time. But it’s a waste product. It could be some — [t]he drug could have been there for a few weeks, a month, or a few days.
With the blood, it’s common knowledge that if the drug is in the blood, it’s circulating through the brain. And if you have a drug much like alcohol that’s in your — that’s in your blood circulating through the brain — your brain, it has an effect. So that’s the difference. One is historical; one is immediate.

Defense counsel then moved for a mistrial, again arguing that Mr. Tran’s testimony encroached upon opinion testimony of intoxication levels in defendant’s blood. The trial judge found that Mr. Tran’s response did not encroach upon opinion testimony concerning the level or amount of drugs in defendant’s system and therefore denied the request for mistrial. Defense counsel did not request that the trial judge admonish the jury. On appeal, defendant asserts that the trial judge erred in denying her request for a mistrial. The state responds by asserting that defense counsel “opened the door” to testimony concerning metabolization of alcohol or drugs in an individual’s system and further that Mr. Tran did not testify at all concerning defendant’s levels because the report did not provide that information.

Upon review, we find that the trial judge did not abuse her discretion in denying defendant’s motion for mistrial. First, defense counsel “opened the door” when he questioned Mr. Tran concerning metabo-lization of alcohol or drugs in an individual’s body — after Mr. Tran had already testified that the report at issue did not show quantity or levels of the substances in defendant’s blood. Second, we find that, even if the testimony was admitted in error, defendant has not shown that |17the testimony caused substantial prejudice or deprived her of her right to a fair trial.

Accordingly, we find defendant’s second assignment of error to be without merit.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920 and address the following error:

A review of the record reveals that, during sentencing, the trial court failed to make any mention of electronic monitoring, curfew restrictions, or home visitation as required by La. R.S. 14:98(E)(3)(a). In addition, the record does not reflect that defendant was provided a certificate of conditions of home incarceration, as required by La. R.S. 14:98(E)(3)(c). This Court has previously found that similar deficiencies rendered similar sentences illegally lenient. See Delanueville, 90 So.3d at 28-30; see also State v. Hunter, 13-82 (La.App. 5 Cir. 7/30/13), 121 So.3d 782, 787.

In Delanueville, the trial court failed to order the defendant’s vehicle seized and sold as required by La. R.S. 14:98(E)(2)(a), failed to specify the conditions of home incarceration as required by La. R.S. 14:98(E)(3)(a) and (b), and failed to provide defendant with a certificate of conditions of home incarceration as required by La. R.S. 14:98(E)(3)(c). As a result, this Court vacated the sentence and remanded for re-sentencing. Delanueville, 90 So.3d at 30. In light of similar deficiencies in defendant’s sentence, we find the sentence is likewise illegally lenient. Consequently, defendant’s sentence is vacated and the matter is remanded for resentencing in compliance with La. R.S. 14:98(E).

J^CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction for a fourth offense of operating a vehicle while intoxicated in violation of La. R.S. 14:98(A)(E). However, we vacate defendant’s sentence and remand this matter for resentencing in compliance with La. R.S. 14:98(E).

CONVICTION AFFIRMED: SENTENCE VACATED; REMANDED.

      . The trial court ordered that defendant is prohibited from driving for the first year of active probation upon her release and informed defendant that she may petition the court thereafter for reinstatement.

      . Detective Lambert testified on behalf of the state that he had field sobriety testing certification.

      .He explained that he first ran a series of tests to eliminate any concerns such as head injuries or any type of physiological or neurological issues.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The state and the defense jointly stipulated that if Troy Evans was present to testify he would be qualified or certified as an emergency medical technician and also certified as having sufficient training to draw blood. Both parties further stipulated that Mr, Evans drew defendant’s blood in this matter.

      . Mr. Bodungen also stated that defendant had post-traumatic stress from previously dealing with officers. He explained that approximately eight to ten years ago, a Jefferson Parish officer kicked in the front door of their home and waived a gun at defendant, when she had just exited the shower and was undressed.

      . When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. White, 09-1071 (La.App. 5 Cir. 6/29/10), 44 So.3d 750.

      , The record reflects that defendant did not dispute her prior convictions at the trial court level.

      . The conviction packets reflect three separate docket numbers (#F1511586, #F1586644, and #F611077) in First Parish Court for the Parish of Jefferson with three separate offense dates.

      . Absent a request for an admonition, the trial judge need not admonish the jury. State v. Jackson, 04-293 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-232 (La.5/6/05), 901 So.2d 1094.