author: MOORE, J.

text:
    James Clayton BARRIOS, II, Plaintiff-Appellee v. Toni Edwards BARRIOS, Defendant-Appellant.
    No. 45,295-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Gary A. Bowers, for Appellant.
    Susan D. Scott, Shreveport, for Appel-lee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   MOORE, J.

_]jToni Edwards Barrios appeals a judgment that awarded her and her former husband, James C. Barrios II (“Buck”), joint custody of the couple’s two children and named Toni the domiciliary parent, but gave Buck physical custody for six days out of every two weeks. We affirm.

Factual Background

Toni and Buck were married in 1995. They had two children: Haley, born 5/14/02, and Emily, born 10/18/05. Buck left their marital home in Stonewall on April 8, 2009, and soon filed for an Art. 102 divorce including a prayer for “equal shared custody.” Toni reconvened, also seeking an Art. 102 divorce and, inter alia, joint custody with herself designated as the custodial parent and Buck to receive “reasonable visitation.”

At a hearing on June 2, 2009, the parties announced they had agreed to joint custody by alternating weeks, with visitation by the off-week parent on Tuesday and Thursday evenings. The court entered an interim order to this effect.

The matter proceeded to trial on August 4 and 11, 2009. Much of the testimony addressed financial matters not contested on appeal. Toni, who works as an administrative assistant for the First JDC District Attorney, has moved to Shreveport and is renting a house in Shreve Island which her parents bought for this purpose and lease to her for $1,100 a month.

Toni testified that she has always provided the lion’s share of parenting for the girls, starting with 12- and 10-week maternity leaves; bathing, feeding, dressing; carrying them to and from daycare, preschool, church and doctors; and, most recently, taking them to and from St. Joseph’s |2School. She testified that while they were still in Stonewall, Buck did little of this because (so she supposed) his job as a design engineer for Center Point Energy kept him on the road a lot, including long commutes to projects in Texas. Soon after he left her, however, Toni discovered that he was having an affair with a woman named Shelby Barrientos. Toni claimed she was not angry but “disgusted” by his conduct and by the fact that he lied to her about it for months.

Toni also testified that while they had been using the week-on, week-off interim order, Haley (the older girl) seemed distracted and lacking in focus whenever she came back from a week with Buck, and both girls were resistant and tearful when they had to go with their dad. Toni admitted that she herself might have been a bit overwrought when she had to drop off the girls, and on one occasion goaded him about his girlfriend, but the children could not hear this because they were in the backseat of the truck watching a loud movie. Toni even took Haley to a clinical social worker, Leigh Ann O’Brien, for evaluation and group workshops, but never advised Buck that she had done so or felt it was necessary to advise him. Toni conceded that Buck was a good father but maintained that the girls were more bonded to her and needed stability. She asked the court to implement her proposed joint custody implementation plan (Exhibit D-7), making her the domiciliary parent, subject to alternating weekends, two hours every Wednesday evening, and split holidays and summers with Buck.

Ms. O’Brien testified on Toni’s behalf, outlining her visits with Haley. She felt that the alternating week scheme had caused “adjustment |sproblems,” notably that Haley was afraid that once school started, Buck would not help her with her homework. Ms. O’Brien concluded that kids Haley’s age need a primary residence, especially with the “same-sex parent,” and felt that the best result would be to implement Toni’s proposed plan, Exhibit D-7.

Buck testified that he has also moved to Shreveport, currently living in Spring Lake Apartments (where, coincidentally, Ms. Barrientos is his neighbor), and intended to look for a house in Broadmoor, near St. Joseph’s School. Also, he was in a new position at Center Point that would keep him in the office more and in the field less, so he felt he could now handle the daily care and transportation that the girls needed. He testified that the alternating week scheme had worked well; he noticed no anxiety in the girls, and allowed them to call Toni at least twice a day. He sensed the biggest problem was that Toni never wanted to let the girls go; he had no inkling that she had taken Haley to a therapist.

Buck admitted he had not been totally honest with Toni, as some of his late hours were from after-work outings to Hooters with coworkers and time spent with Ms. Barrientos. He also agreed he had been blunt and insensitive, announcing without warning that he was leaving Toni. He maintained that his first few months with Ms. Barrientos were purely platonic, as she was the QC engineer with one of Center Point’s suppliers, notwithstanding literally hundreds of late-night cell phone calls. Buck asked the court to continue the alternating week schedule.

\AAction of the District Court

The court issued a written ruling on custody and visitation, citing La. C.C. art. 134 and restating the salient parts of the testimony. The court awarded joint custody, designating Toni the domiciliary parent, but granted physical custody to Buck for six days out of every two weeks (normally, Friday after school until the following Thursday morning), with intricate details for dividing holidays and summer vacation, and other provisions not contested on appeal.

Toni has appealed, raising two assignments of error.

Discussion

By her first assignment of error, Toni urges the district court committed legal error in determining that equal sharing of physical custody was the “starting point” for an award of custody, and this legal error interdicted the fact finding process. The alleged legal error arose during Toni’s closing argument, when the court interrupted counsel and asked:

So tell me, would you not agree that it is the starting point to [the] extent it’s feasible and that it’s in the best interest of the children? That shared custody is the starting point if it’s to the extent it’s feasible and [in] the best interest of the children?

Toni argues that by “shared custody,” the court really meant “equal sharing,” and the jurisprudence is legion that La. R.S. 9:335 A(2)(b) does not require “strict equality of time.” Semmes v. Semmes, (La.App. 2 Cir. 12/16/09), 27 So.3d 1024; Luplow v. Luplow, 41,021 (La.App. 2 Cir.2/28/06), 924 So.2d 1135; and numerous other cases. Toni contends that the court’s presumption of “strict equality” was an “incorrect principle of |BIaw,” was prejudicial, and warrants de novo review of the record under Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.

The statute regulating joint custody and implementation orders, R.S. 9:335 A(2)(b), states:

To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

Obviously, the statute says physical custody should be “shared equally” while the court said “shared custody” is the starting point; however, in this minor variation of phraseology we detect no substantial misstatement of the law and absolutely nothing that interdicted the court’s fact finding function. In fact, after a long colloquy with the court, counsel ultimately conceded, “I’d have to be intellectually honest with you, that’s what the law says.” There is no basis to invoke the de novo review standard of Evans v. Lungrin, supra. This assignment of error lacks merit.

By her second assignment of error, Toni urges the court abused its discretion in determining that sharing physical custody in the manner provided by the judgment was in the best interest of the children, considering all the evidence adduced at trial. In support, she reiterates the trial testimony in great detail and argues that four of the factors of La. C.C. art. 134 strongly support giving her much more custodial time. These are love, affection and emotional ties; stability and continuity of the child’s environment; reasonable preference of the child; and the previous responsibility for the care and rearing of the child exercised by the parties. Extrapolating from the views of Ms. O’Brien, Toni strongly urges that ^Haley’s mental health is at risk unless she gets to stay ■with her mom. She asks this court to reverse the judgment and implement Exhibit D-7.

Buck concedes that Toni has always been the primary caregiver, but argues there was no showing that he ever failed to provide for any of the girls’ needs while he had physical custody. He also argues that, as the court correctly observed, Toni’s animosity toward him probably affected the children more than anything else. He suggests that the 8-6 split is not “strict equality of time” and no abuse of discretion. Finally, he urges that the court is not bound to accept an expert’s opinion, when the facts support applying the court’s own experience and common sense. Brewer v. Brewer, 39,647 (La.App. 2 Cir. 3/2/05), 895 So.2d 745. He asks the court to affirm.

The paramount consideration in any child custody case is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, supra. The court is to consider all relevant factors in determining the child’s best interest. La. C.C. art. 134. The court is not required to make a mechanical evaluation of the statutory factors but should decide each case on its own 17facts in light of those factors. Semmes v. Semmes, supra; Bergeron v. Bergeron, 44,210 (La.App. 2 Cir. 3/18/09), 6 So.3d 948. The factors are not exclusive, but are meant as a guide for the court to assess their relative weight and fashion a custody order within its great discretion. Id.

To the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335 A(2)(b); Semmes v. Semmes, supra. Nevertheless, even when joint custody is in the best interest of the child, the statute does not mandate an equal sharing of physical custody; substantial time, rather than strict equality of time, is the objective of joint custody. Id. The trial court’s discretion in fixing custody is great, and a custody award will not be disturbed on appeal in the absence of a clear showing of abuse. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Semmes v. Semmes, supra.

The district court’s written ruling on custody and visitation carefully laid out the essential facts. Toni was indeed “disgusted” at Buck’s conduct — the callous announcement that he was leaving her, his denials and the eventual revelation of his affair with Ms. Barrientos. The court perceptively noted that her “understandable animosity toward Mr. Barrios” was her only negative factor under Art. 134. The court also found, with respect to the older child’s emotional problems, “it is difficult to distinguish between the inherent trauma of separation and the trauma by proxy.” This assessment finds support in a complete reading of Ms. O’Brien’s testimony. Notably, we do not find in this expert’s opinion the ominous predictions for Haley’s mental health that have been represented in brief.

|sIn all other respects, this record presents an ideal opportunity for joint custody with a substantial equality of time to each parent. Toni and Buck live relatively close to one another and agree on the girls’ school and church; both expressed unreserved love and affection for the girls; both have proved their ability to provide for them materially. While Toni has selflessly provided the majority of the daily care for them as infants and toddlers, she admitted Buck has been a regular participant in their school and athletic activities.

Of course, the instant plan will require Buck’s commitment, entailing more involvement with the girls than before and perhaps impinging on his leisure pursuits such as hunting and fishing, trips to Hooters, and romantic interests. If he should fail to comply, resulting in a significant change of circumstances, the plan will be subject to modification under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). On this record, however, the court was entitled to award a substantial equality of time.

After full review, we find the district court did not abuse its discretion in awarding joint custody, naming Toni the domiciliary parent, allocating to Buck six days out of every two weeks, and making the other provisions for visitation contained in the judgment. This record falls short of proving manifest error or abuse of discretion. The assigned error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by the appellant, Toni Edwards Barrios.

AFFIRMED.

      . Under Art. 134, "Such factors may include:
      "(1) The love, affection, and other emotional ties between each party and the child.
      "(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      "(3) The capacity and disposition of each parly to provide the child with food, clothing, medical care, and other material needs.
      "(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      "(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      "(6) The moral fitness of each party, insofar as it affects the welfare of the child.
      "(7) The mental and physical health of each party.
      "(8) The home, school, and community history of the child.
      "(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      "(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      "(11) The distance between the respective residences of the parties.
      "(12) The responsibility for the care and rearing of the child previously exercised by each party.”


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Terrance LAWRENCE, Appellant.
    No. 45,061-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Louisiana Appellate Project, by Paula C. Marx, for Appellant.
    Jonathan M. Stewart, District Attorney, H. Russell Davis, Kenneth P. Haines, Tammy Lenn Gantt Jump, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

11 Following a jury trial, Defendant, Terrance Lawrence, was convicted as charged of possession of over 400 grams of cocaine in violation of La. R.S. 40:967(F)(l)(e) and subsequently sentenced to 30 years’ imprisonment without the benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s conviction is affirmed and the case is remanded for resen-tencing.

FACTS

This matter arises from a traffic stop that occurred during Labor Day weekend on September 1, 2007, at approximately 10:15 p.m. Defendant was a passenger riding in a gray Honda Accord proceeding east along Interstate 20 in Bienville Parish. The driver of the vehicle, Brande Stowe, and Defendant were returning to Florida from Dallas, Texas.

During this time, State Troopers Jason Parker and Tim Gray were on patrol when they observed Ms. Stowe’s vehicle. The officers could not clearly see the license plate so they began to follow the vehicle to determine whether there was a license plate attached to the car. While following the vehicle, the officers observed the vehicle cross both the center line and the fog line. The officers then became concerned that the driver of the vehicle was impaired and decided to conduct a traffic stop.

Once stopped by the officers, Ms. Stowe presented a valid Florida driver’s license and stated that she was returning to Florida after flying to Dallas, Texas to meet her boyfriend’s family. She further stated that she was tired and looking for a hotel to stop for the night. When questioned a few | ^.minutes later, Ms. Stowe contradicted this statement, stating that she had driven from Florida to Dallas, Texas instead of taking a plane.

Officer Parker then approached Defendant, who was seated in the passenger’s seat, and observed him making a call on his cell phone. Defendant stated to the officer that he was contacting his “legal people.” Officer Parker noted that Defendant appeared very nervous and was behaving oddly.

Although Officer Parker decided to release Ms. Stowe with a warning, both officers felt as if criminal activity was present, so Officer Parker requested consent to search Ms. Stowe’s vehicle. On Ms. Stowe’s refusal to consent to the search, Officer Parker called a K-9 unit and conducted a K-9 search of the vehicle. The K-9 subsequently alerted on the trunk area of the vehicle and a search of that area yielded approximately nine pounds of cocaine wrapped in plastic Wal-Mart bags. Fingerprint analysis later revealed that Defendant’s fingerprint was located on one of the bags.

As previously stated, Defendant was then arrested, charged with possession of more than 400 grams of cocaine in violation of La. R.S. 40:967(F)(l)(c) and, after a trial, Defendant was convicted as charged by a jury. Noting that this was Defendant’s second conviction involving drugs, the trial judge sentenced Defendant to serve a term of 30 years’ imprisonment without the benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction and sentence.

| ¡¡DISCUSSION

Assignment of Error Number One (verbatim): The jury verdict convicting Terrance Lawrence of Possession of Cocaine fails to meet the legal standard of sufficiency of the evidence.

Defendant argues that, because he was only a passenger in Ms. Stowe’s vehicle and did not have any cocaine on his person, the single fingerprint found on one of the bricks of cocaine was insufficient evidence to support his conviction under La. R.S. 40:967(F)(l)(c). Defendant further argues that he might have handled the drugs inadvertently and left his fingerprint on them since he packed the trunk of the car prior to the couple’s departure from Texas.

The State argues that the evidence was sufficient to support Defendant’s conviction considering the totality of the circumstances which include: (1) Defendant’s presence in the car where nine pounds of cocaine were found; (2) Defendant’s prior criminal history; (3) Defendant’s suspicious phone call to his “legal people” during a stop for a minor traffic violation; and (4) Defendant’s fingerprint on a plastic bag containing the cocaine.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The sufficiency claim is reviewed first because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia,, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light |4most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

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.2d Cir.1/14/09), 1 So.3d 833. 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. A 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.2d 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.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Jackson v. Virginia, supra. 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. Id. 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 | strier 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.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

Cocaine is listed as a Schedule II substance under La. R.S. 40:964 A(4). Further, La. R.S. 40:967(C), provides in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

This court has previously held that a fingerprint left on a bag containing cocaine is “obviously additional evidence to support a possession charge.” State v. Clark, 33,794 (La.App.2d Cir.11/3/00), 774 So.2d 291, writ denied, 00-3511 (La.8/31/01), 795 So.2d 1209.

In the matter sub judice, Defendant was a passenger riding in a car that was found to contain nearly nine pounds of cocaine. Defendant admitted having driven the car approximately one week prior to the stop. Defendant further conceded that, not only did he have access to the trunk area of the car, but he loaded multiple items into the trunk. Defendant’s fingerprint was found on the material wrapping one of the bricks of cocaine. This fingerprint is particularly significant because the bricks were double Ifibagged, i.e., first zipped into plastic bags and then placed in plastic “Wal-Mart” bags. Accordingly, we find that the evidence was sufficient to support Defendant’s conviction.

This assignment of error is without merit.

Assignment of Etror Number Two (verbatim): The trial court erred in denying the Motion to Suppress the Evidence.

Defendant argues that the initial stop resulted in a prolonged and unconstitutional detention without the officers having any reasonable suspicion that criminal activity was afoot. In support of this argument, Defendant contends that the video footage of the incident does not show Ms. Stowe weaving in her lane of travel. Defendant also asserts that the officers im-permissibly extended the scope of the initial stop by running a criminal background check of Defendant. Finally, Defendant avers that the duration of the stop was too long since it lasted for approximately 28 minutes before the K-9 unit was called.

The State argues that the initial stop was lawful since the officers observed Ms. Stowe weaving in her lane of travel and, therefore, had probable cause to believe a traffic violation had occurred. The State further contends that the officers’ suspicions were all that was necessary to call for a K-9 unit. The State concludes that, since the K-9 unit arrived within 2-3 minutes of being called, the duration of the detention was not impermissible.

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5, |7of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified under one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La. 1985); State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168.

The purpose of limiting warrant-less searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrant-less searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). When the constitutionality of a warrantless search and seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App.2d Cir.9/22/99), 748 So.2d 31.

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The stopping of a [ ^vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. United States v. Shabazz, 993 F.2d 431 (5th Cir.1993).

The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, supra; State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841; State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594. The court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. Shabazz, supra, quoting Terry v. Ohio, supra.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur before stopping the vehicle. United States v. Sharpe, supra; State v. Pena, supra; State v. Sims, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048.

The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019; State v. Pena supra; State v. Arnold, 34,194 (La.App.2d Cir.12/6/00), 779 So.2d 840. Therefore, when an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

La. C. Cr. P. art. 215.1(D) states that, in conducting a traffic stop, “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” The statute also provides, however, that “nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with the administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.” La. C. Cr. P. art. 215.1(D), therefore, does not preclude an officer from conducting a routine driver’s license and vehicle registration check or from engaging in conversation with the driver and passenger while doing so. See La. R.S. 32:404(A); La. R.S. 47:511(A); State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90.

Additionally, a K-9 search is not a “search” within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396; State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072. Once a K-9 alerts on the vehicle, the officers have probable cause to search the vehicle without first obtaining a warrant. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

The lawfulness of the stop in the case sub judice has been previously reviewed by this court and upheld. State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945. In the present matter, both officers testified that they observed Ms. Stowe committing a traffic violation by crossing the fog line and the center line in her lane of travel. This observation by the officers furnished the necessary reasonable suspicion to believe that a traffic violation had been committed. The officers, therefore, had grounds for a lawful traffic stop during which they were permitted to check the licenses of both the driver and passenger.

Additionally, Officer Parker’s decision to refrain from issuing Ms. Stowe a traffic violation citation is of no consequence to the legal validity of the stop. The inconsistencies in Ms. Stowe’s and Defendant’s explanations regarding their travels, Defendant’s obvious nervousness and suspicious behavior and Defendant’s cell phone call to his “legal people” all provided support for the officers’ reasonable suspicion that criminal activity was afoot. This reasonable suspicion justified extending the stop so that the officers could continue to investigate the matter more thoroughly. Additionally, in spite of Defendant’s argument that the 30-minute duration of the stop was impermissibly long, there exists no bright-line rule for determining the appropriate length of traffic stops.

Finally, the K-9 sniff of the exterior of the car was lawful since it was not a search. Once the K-9 alerted to the trunk area of the vehicle, the [^officers’ subsequent search was lawful because the K-9 alert provided probable cause for the officers to believe that there were narcotics inside the trunk. Accordingly, the traffic stop was lawful and the cocaine found in the trunk of the vehicle was properly admitted at trial.

This assignment of error is without merit.

Assignment of Error Number Three (verbatim): The trial court erred in allowing the audio of the stop to be played to the jury-

The audio portion of the video depicting the traffic stop contains a conversation between the officers wherein they discuss Defendant’s criminal history. Specifically, the officers are told to call the station responsible for running Defendant’s background check because his criminal history is too lengthy to recite over the radio. Once the officer phones into the station, he repeats Defendant’s criminal history aloud, which can be heard on the audio of the footage played for the jury. Defendant argues that the audio of the video footage of the traffic stop was prejudicial and that, when the video was played in front of the jury, Defendant was deprived of the presumption of innocence, his right to confront his accusers and his privilege against self-incrimination.

The State counters that the video footage was properly admissible under the res gestae exception to the hearsay rule. The State further argues that the audio portion of the video footage is not considered testimony and, therefore, should not be considered impermissible other crimes evidence.

In general, evidence pertaining to the defendant’s commission of crimes, wrongs or acts, other than the one with which he is currently charged, is inadmissible, when the only purpose of such evidence is to |12prove the defendant’s character and, thus, his subsequent disposition to break the law. La. C.E. art. 404; State v. Hamson, 604 So.2d 583 (La.1992); State v. Humphrey, 412 So.2d 507 (La.1981); State v. Langston, 43,923 (La.App.2d Cir.2/25/09), 3 So.3d 707, writ denied, 09-0696 (La.12/11/09), 23 So.3d 912; State v. Reed, 43,780 (La.App.2d Cir.12/3/08), 1 So.3d 561, writs denied, 09-0014, 09-0160 (La.10/2/09), 18 So.3d 100, 103.

The underlying rationale is that the prejudicial tendency of such evidence outweighs its probative value because the finder of fact is likely to convict on the basis that the defendant is a “bad person” rather than the strength of evidence against him in the case being tried. State v. Brown, 318 So.2d 24 (La.1975); State v. Gay, 616 So.2d 1290 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1223 (La.1993). La. C.E. art. 404 provides exceptions to this rule and provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

According to State v. Brooks, 01-0785 (La.1/14/03), 838 So.2d 725, “a videotape of the crime as it occurs is neither written evidence nor testimony.” La. C.E. art. 801(D)(4) further excludes from the hearsay definition things said and done “through the instructive, impulsive and spontaneous words and acts of the participants ... which are necessary incidents of the criminal act.” Further, res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and | ^spontaneous words and acts of the parties.

Other jurisprudential and statutory factors come into play in determining whether evidence of other acts may be admitted. First, to be admissible, an exception listed in Article 404(B), ie., proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, must have some independent relevance or be an element of the crime charged; and, in addition, such factor must be a genuinely contested issue at trial. State v. Welch, 615 So.2d 300 (La.1993); State v. Jackson, 625 So.2d 146 (La.1993). Second, the state must make a showing of fact which would support a jury finding that the defendant committed the prior act by a preponderance of the evidence. La. C.E. art. 1104; Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert denied, - U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Warren, 43,671 (La.App.2d Cir.12/17/08), 2 So.3d 523, writ denied, 09-0353 (La.11/20/09), 25 So.3d 795. Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice to the jury, confusion of the issues, misleading the jury, undue delay or waste of time. La. C.E. art. 403; State v. Hatcher, 372 So.2d 1024 (La.1979).

Finally, the court must follow the requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973). In order to comply with due process, the State is required to give pretrial notice of its intent to use evidence of other crimes. State v. Prieur, supra. Prieur also requires that the State show, prior to admission of the evidence, that the evidence is not repetitive or cumulative, serves the purpose for which it is offered and is not pretext for portrayal of the defendant as a person of bad character. Id. Prieur further requires that, at the defendant’s request, the jury be charged that the evidence was received for the limited purpose of proving an issue for which other crimes evidence may be admitted, such as intent, and that the defendant cannot be convicted of any charge other than the one named in the indictment or one that is responsive to that charge. Id.

The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141. The test for determining harmless error is whether the reviewing court may conclude that the error was harmless beyond a reasonable doubt, State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), or “whether the guilty verdict actually rendered in [the] trial was surely unattributable to the error.” Sullivan v. Loui- simia, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The remedy for the erroneous admission of evidence, where there is a reasonable doubt that such evidence was not harmless, is reversal of the defendant’s conviction. State v. Foret, 628 So.2d 1116 (La.1993). A trial court’s decision regarding admissibility of evidence should not be | ^overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135 (La.1992).

As previously stated, in the matter sub judice, the video depicting the substance of the traffic stop qualifies as res gestae evidence. The extended colloquy between the officers contained on the audio of the video footage regarding Defendant’s criminal history does not, however, qualify as res gestae evidence. The substance of the officers’ discussion on this portion of the audio of the video footage was likely prejudicial considering they were discussing in detail Defendant’s lengthy criminal history. Consequently, the jury was erroneously permitted to hear evidence of Defendant’s prior bad acts during trial.

We find, however, that this error was harmless. Defendant was stopped while riding in a car containing approximately nine pounds of cocaine. Defendant’s behavior during the stop, including his phone call to his “legal people,” was extremely suspicious. Additionally, Defendant’s fingerprint was found on the inside bag around a brick of cocaine that was double bagged. Considering the strength of this evidence against Defendant, one cannot say that the jury verdict was attributable to the error admitting the audio of the video footage into evidence.

Assignment of Error Number Four (verbatim): The sentence is illegal in that the entire thirty years was ordered to be served without benefit of probation, parole, or suspension of sentence.

In his final assignment of error, Defendant argues that the trial judge erroneously sentenced Defendant to serve the entirety of his 30-year sentence without the benefit of parole, probation or suspension of sentence, | Kiwhich is contrary to La. R.S. 40:967(F)(l)(c) and (G). The State concedes that the trial judge erred in this respect and agrees that only the first 15 years of Defendant’s sentence should be served without the benefit of parole, probation or suspension of sentence.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882. La. R.S. 40:967(F)(l)(c) provides in pertinent part that “[a]ny person who knowingly or intentionally possesses four hundred grams or more of cocaine ... shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years.” La. R.S. 40:967(G) also provides that:

[w]ith respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.

Defendant was sentenced to the maximum term of incarceration, 30 years, and the trial court judge ordered that the entire 30 years be served without the benefit of parole, probation or suspension of sentence. We find that this sentence is contrary to the express language of La. R.S. 40:967(G) and, therefore, is illegal. Accordingly, we remand the matter for re-sentencing.

CONCLUSION

For the foregoing reasons, Defendant’s conviction is affirmed and the matter is remanded for resentencing consistent with this opinion.

CONVICTION AFFIRMED AND REMANDED FOR RESENTENCING.


text:
    Teresa D. LOWE, Plaintiff-Appellant v. SKYJACKER SUSPENSIONS, Defendant-Appellee.
    No. 45,058-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      C. Bryan Racer, P.L.C., Monroe, for Appellant.
    Snellings, Breard, Sartor, Inabnett & Traseher, L.L.P., by Donald J. Anzelmo, Monroe, for Appellees, Skyjacker Suspensions and LUBA Casualty Insurance Company.
    Before WILLIAMS, PEATROSS & MOORE, JJ.
   PEATROSS, J.

liThe workers’ compensation judge (“WCJ”) granted the employer’s motion for involuntary dismissal at the close of claimant’s case, dismissing the case with prejudice. The WCJ found that the claimant had failed to meet her burden of proving that a work-related accident had occurred. The claimant now appeals. For the reasons stated herein, we affirm.

FACTS

The claimant, Teresa D. Lowe, was employed as an order checker in the shipping department of Skyjacker Suspensions (“Skyjacker”). Ms. Lowe’s duties included checking pallets of parts used in lift kits for four-wheel drive vehicles to ensure that the proper parts were on the pallets for shipment of orders placed with Skyjacker. According to Ms. Lowe, she regularly had to remove parts from the pallets and replace them with the correct parts. She testified that the parts varied in weight and size, some possibly weighing as much as 60 pounds. Ms. Lowe testified that, in late March or early April 2008, while she was carrying four boxes full of shocks, she “felt something pull in her back.” She did not report the incident, nor did she seek medical attention. Ms. Lowe continued with her regular duties and did not miss any work due to the alleged injury.

Ms. Lowe further alleges, and testified, that a second “accident” occurred as she was attempting to remove boxes from a pallet and the boxes broke, causing her to fall backward. She testified that a coworker, Marty, whose last name is unknown and whom Ms. Lowe believed to be in a supervisory role, helped her up after the fall. Ms. Lowe claims that she sustained a lower back injury in the fall. As with the first alleged incident, |?Ms. Lowe did not report the accident and completed her shift on that day and continued her employment thereafter. In her testimony, Ms. Lowe admitted that her supervisor was actually not Marty, but was Carey Davis, although Ms. Lowe maintained that she believed that she could also “report to” Marty.

On April 22, Ms. Lowe sought treatment for back pain from her regular physician, Dr. Warren Daniel. All charges were billed to and paid by Vantage Health Plan, Inc., Ms. Lowe’s health insurer. Dr. Daniel’s notes from the initial visit indicate that Ms. Lowe was experiencing back pain radiating down into her right leg, with an onset of two weeks. There is no notation regarding any injury or what may have precipitated the back pain. Dr. Daniel prescribed medication for Ms. Lowe, x-rayed her spine and prescribed stretching and soaking. Dr. Daniel’s records indicate that Ms. Lowe presented the following day, April 23, with continued complaints of back pain, still radiating down her leg. The notations for that day include the following: “ * lifts heavy objects @ work-works in shipping @ Skyjacker.” At this visit, Dr. Daniel ordered an MRI and referred Ms. Lowe to Dr. Myron Bailey. An appointment for Ms. Lowe was scheduled with Dr. Bailey.

Ms. Lowe first saw Dr. Bailey on April 30. On the patient history questionnaire, Ms. Lowe described her discomfort as “lower back down to right leg.” In the space provided for the “date of injury or when symptoms began,” Ms. Lowe wrote “around 2-3 months ago.” She provided no further explanation in the space provided for “Explain your problem” on the ^questionnaire. There is no mention of any injury or potential cause of Ms. Lowe’s back pain in any of the records of Dr. Bailey. In fact, Ms. Lowe admitted in her testimony that she did not tell either Dr. Bailey or Dr. Daniel about any accident that occurred during her employment that may have caused injury to her back. Dr. Bailey treated Ms. Lowe and eventually performed surgery on her back.

On July 16, 2008, Ms. Lowe filed a Disputed Claim for Compensation against Skyjacker seeking benefits, plus penalties and attorney fees for late/failure to pay benefits. On the claim form, Ms. Lowe described her injury as follows:

While checking shocks, I discovered the wrong kits had been packed for an order. I removed the wrong kits and carried them to the shop to exchange for the correct merchandise. At the time, I felt a sharp pain in my lower back. Initially, I thought I had a pulled muscle, but that was not the case. Additionally, while arranging a pallet for shipping, I tripped and fell further injuring my back.

Skyjacker disputed the claim, answering, inter alia, that no work-related accident had occurred.

The matter proceeded to trial and Ms. Lowe was the sole witness called on her behalf. In her testimony, Ms. Lowe recounted the alleged accidents as follows:

Q: Can you tell the Judge what you were doing when it occurred?
A: I was taking product off of the pallet and was taking — was carrying the product to the department that it was supposed to be returned to, to get the correct items to put back on there.
Q: And what happened?
LA: It — when I was carrying the product, it felt like I pulled something in my back.
Q: Did you report this incident to anyone?
A: No.
Q: Did you go to the doctor as a result of this?
A: No.
Q: Did you have a second accident or incident while working for Skyjacker?
A: Yes, I did.
Q: Did it occur after the pain-in-your-lower-back from carrying the four boxes of shocks?
A: Yes, it is.
Q: What were you doing when that occurred?
A: I was pulling the wrong product off of a pallet that was pulled out there. The boxes broke and gave way, and when that happened, I lost my balance and fell backward.
Q: Were you injured?
A: Yes.

Ms. Lowe then testified that Marty helped her up, but that she did not report the incident to anyone and continued working. She then testified about her treatment with Drs. Daniel and Bailey and agreed that she had not advised either doctor that she had been injured at work. The records of both doctors were admitted into evidence and, as previously noted, there is only one reference in the records of Dr. Daniel to the effect that she “lifts” heavy |5objects at work. In addition, we note that the only potential witness to either alleged accident was Marty, who was not called to testify at trial.

As previously stated, Skyjacker moved for an involuntary dismissal based on the failure of Ms. Lowe to prove that a work-related accident had occurred. After further questioning and deliberation, the WCJ granted the motion.

DISCUSSION

A motion for involuntary dismissal at the close of claimant’s evidence is permissible after a bench trial when, based upon the facts and law, the claimant has failed to show a right to relief. La. C.C.P. art. 1672. A motion for involuntary dismissal requires the trial court to evaluate all of the evidence presented by the claimant and render a decision based upon the preponderance of the evidence. Gray v. City of Monroe, 41,087 (La.App.2d Cir.5/17/06), 930 So.2d 1148, citing King of Hearts, Inc. v. Wal-Mart Stores, Inc., 27,-137 (La.App.2d Cir.8/23/95), 660 So.2d 524. An appellate court should not reverse an involuntary dismissal in the absence of manifest error; and, there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Gray, supra, citing Silva v. Calk, 30,085 (La. App.2d Cir.12/10/97), 708 So.2d 418.

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of credibility and inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual determinations shall not be disturbed | (¡in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. The appellate standard of review applicable to the findings of a WCJ is, therefore, the manifest error-clearly wrong test. Shelton v. Wall, 614 So.2d 828 (La.App. 2d Cir.1993).

In order to recover workers’ compensation benefits, an employee must prove that he suffered “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). La. R.S. 23:1021 provides the following definitions:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(7) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

The claimant in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Daniel v. House of Raeford Farms of LA, 44,753 (La.App.2d Cir.9/23/09), 23 So.3d 374, writ denied, 09-2326 (La.1/8/10), 24 So.3d 871, citing Buxton v. Sunland Constr., 34,995 (La.App.2d Cir.8/22/01), 793 So.2d 526. Proof by a preponderance of the evidence is sufficient when the 17evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id.

In determining whether the worker has discharged the burden of proof, the trier of fact should accept as true a witness’ uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. Daniel, supra. An accident at work may be proven by a claimant’s uncontradicted testimony corroborated by the medical evidence. Id. Thus, a worker’s testimony alone may be sufficient to discharge this burden of proof provided that two essential elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Such corroboration, of course, may include medical evidence and the testimony of fellow workers, spouses or friends. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992); Daniel, supra; Buxton, supra.

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. Daniel, supra; Buxton, supra; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2d Cir.1991). The trier of fact’s determinations as to whether the worker’s testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to be disturbed upon review unless clearly wrong. Daniel, supra; Bruno, supra.

| sin the case sub judice, the WCJ repeatedly questioned counsel for claimant regarding what evidence had been produced to show that Ms. Lowe had sustained a work-related injury. The only evidence in support of such accident is Ms. Lowe’s self-serving testimony, which the WCJ found insufficient to carry Ms. Lowe’s burden. Specifically, we note that Ms. Lowe’s testimony at trial regarding how the second accident occurred was somewhat inconsistent with the description of the accident she provided on the disputed claim form. Ms. Lowe testified that the second accident occurred when boxes broke as she was attempting to remove them from a pallet, causing her to fall backward. Previously, however, on the claim form, Ms. Lowe indicated that she “tripped and fell.” In addition, we note a discrepancy in the timing of the accidents vis a ‘vis Ms. Lowe’s first visits with Drs. Daniel and Bailey. On April 22, she reported the onset of symptoms to Dr. Daniel as “two weeks.” Eight days later, on April 30, she reported to Dr. Bailey that she had been experiencing symptoms for “around 2-8 months.” The WCJ chose to discredit Ms. Lowe’s testimony and, on this scant record, we find no manifest error in that determination.

In addition, Ms. Lowe urges this court to find clear error in the WCJ’s finding that there was insufficient corroboration of her testimony that she sustained a work-related accident. She argues that (1) seeking medical attention for her back pain and (2) the notation in Dr. Daniel’s records that she “lifts heavy objects at work” constitute sufficient corroborating “circumstances following the alleged incident” to support her claim of an accident. We disagree. The fact that Ms. Lowe sought medical treatment 19for pain in her lower back is not corroborative of an on-the-job accident. Furthermore, the record reveals the WCJ’s thoughtful reasoning surrounding the corroborative weight of the notation in Dr. Daniel’s written records. We find no manifest error in the WCJ’s conclusion that the notation does not indicate that the cause of the injury claimed by Ms. Lowe was related to an incident that happened during the course of her employment with Skyjacker. To the contrary, we conclude that Ms. Lowe’s failure to report the alleged accident(s) to anyone at Skyjacker, the fact that she offered her private medical insurance to cover medical expenses prior to seeking payment through the employer, the lack of any statement to either physician that her injury was work-related, the lack of testimony from any other individual regarding this alleged injury, i.e., coworkers (Marty) or family or friends, all tend to discredit or cast doubt on Ms. Lowe’s testimony that an accident or accidents occurred on the job. Daniel, supra. At the very least, the question of the occurrence of a work-related accident in this case is open to speculation and we cannot say the WCJ’s decision that Ms. Lowe failed to carry her burden of proof was manifestly erroneous. Daniel, supra; Buxton, supra; Lubom, supra.

As a final note, we find the cases relied on by Ms. Lowe to be distinguishable from the instant matter. In particular, the decision fiwn this court in Royals v. Town of Richwood, 38,738 (La.App.2d Cir.8/18/04), 880 So.2d 208, involved a resource officer at a school who was employed by the Town of Riehwood. Officer Royals injured her knee while getting out of her patrol car at the school. The officer immediately reported that she |lflwas injured to another security officer in the school, but continued her duties. Shortly thereafter, she re-injured the knee when she shifted her weight onto that knee in the restroom. The town’s compensation carrier paid her medical expenses, but denied indemnity benefits, claiming that Officer Royals had not sustained a work-related injury. The WCJ found the testimony of the officer that she had sustained a knee injury while getting out of her patrol car to be credible. Further, there was no evidence discrediting Officer Royals’ testimony. Also in Royals, there was documentary evidence in the form of letters written by two of the compensation carrier’s adjusters describing how the claimant injured her knee getting out of the patrol car. We find that Royals is not persuasive in this case because of the described additional evidence of the work-related accident.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge granting the motion for involuntary dismissal of Skyjacker and dismissing with prejudice the claim of Teresa D. Lowe is affirmed at the cost of Ms. Lowe.

AFFIRMED.


author: GASKINS, J.

text:
    William WATKINS, Plaintiff-Appellee v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 45,107-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Davis Law Office, LLC by S.P. Davis, Sr., Christina Wimbley, for Appellant.
    The Smith Law Office, L.L.C. by Esk-ridge E. Smith, Jr., Bossier City, Linda Lea Smith, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   GASKINS, J.

hln this workers’ compensation case, the City of Shreveport (“the City”) contends that the claimant, William Watkins, should have been prohibited by res judicata from asserting a supplemental motion for summary judgment after an initial motion for summary judgment on the same issue had been denied. We affirm.

FACTS

The claimant was employed by the City as a crew member. On December 19, 2006, while working, he stepped in a hole washed out by water on the side of Interstate 20 in Shreveport. As a result, he injured his lower back. On June 5, 2007, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation. He complained that while his doctor, Dr. Anil Nanda, and the employer’s doctor, Dr. Don Smith, agreed that he required surgery, it had not been approved by the employer. In its answer, the City admitted that the claimant was injured in the course and scope of his employment. However, it denied that the claimant suffered any disability or was entitled to any surgery.

The claimant filed a motion for summary judgment on September 26, 2007. He asserted that he had worked for the City for about 22 years; he injured his back in 1981, had surgery and returned to work. In December 2006, however, he aggravated his preexisting condition when he stepped in a hole. Dr. Nanda, his treating neurosurgeon, opined that stepping in the hole aggravated his condition and caused his symptoms. While Dr. Smith, the employer’s doctor, opined that the back condition predated the 2006 accident, he could not rule out the December 2006 accident as aggravating 12the claimant’s preexisting condition. The claimant requested that summary judgment be granted and that the City be ordered to provide the surgery.

In October 2007, the City requested an independent medical examination (IME). It also filed an opposition to the claimant’s motion for summary judgment. In turn, the claimant opposed the City’s request for an IME. On November 2, 2007, Brenza Irving, the workers’ compensation judge (WCJ), granted the request for an IME to be performed by Dr. Bernie McHugh, a neurosurgeon, on the issues of causation and the necessity for surgery. However, due to genuine issues of material fact as to causation and the necessity of the surgery, WCJ Irving denied the motion for summary judgment.

After receiving Dr. McHugh’s report indicating that the claimant had suffered an exacerbation of a preexisting condition, the claimant filed a supplemental memorandum in April 2008, in support of his motion of summary judgment, which he reasserted.

In May 2008, the City filed an exception of res judicata, arguing that the issues in the motion for summary judgment had been adjudicated and that there was no showing of any new information that gave rise to a lack of genuine issue of material fact that would allow summary judgment in the claimant’s favor. In opposition to the exception, the claimant asserted that Dr. McHugh’s report was new evidence. Furthermore, he argued that there is no prohibition to reasserting a motion for summary judgment.

By judgment signed on September 25, 2008, WCJ Ryan Gatti granted the claimant’s motion for summary judgment. The judgment decreed that [sthere was no genuine issue of material fact and that the claimant was entitled to summary judgment. Surgery as proposed by Dr. Nanda was approved and payment pursuant to the Workers’ Compensation Law was ordered.

On October 2, 2008, the City requested written reasons and reconsideration of its exception of res judicata. The claimant opposed the motion for reconsideration. On October 24, 2008, the City filed a motion for devolutive appeal from the judgment of September 25, 2008.

Following a hearing on November 7, 2008, WCJ Gatti signed a judgment denying the exception of res judicata; he assigned as written reasons the argument set forth in the claimant’s memorandum in support of the motion for summary judgment, as well as the arguments in opposition to the exception of res judicata.

The City appeals.

LAW AND DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, 1999-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. King v. Illinois National Insurance Company, 2008-1491 (La.4/3/09), 9 So.3d 780. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. |4966(A)(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The only real issue presented here is whether the WCJ could entertain the claimant’s reurged motion for summary judgment. The jurisprudence has consistently found no error in a second motion for summary judgment being heard after the previous motion was denied. See Belt v. Wheeler, 36,585 (La.App.2d Cir.12/18/02), 833 So.2d 1256; Rogers v. Horseshoe Entertainment, 32,800 (La. App.2d Cir.8/1/00), 766 So.2d 595, writs denied, 2000-2894 (La.12/8/00), 776 So.2d 463, and 2000-2905 (La.12/8/00), 776 So.2d 464; Ward v. Hermitage Insurance Co., 28,236 (La.App.2d Cir.4/3/96), 671 So.2d 1229, writ denied, 96-1141 (La.9/3/96), 678 So.2d 554; Melton v. Miley, 1998-1437 (La.App. 1st Cir.9/24/99), 754 So.2d 1088, writ denied, 1999-3089 (La.1/7/00), 752 So.2d 867; Ejferson v. Link Belt Corporation, 476 So.2d 528 (La.App. 1st Cir.1985). Therefore, the WCJ did not err in considering the claimant’s supplemental motion for summary judgment. When new evidence has been introduced after a denial of a motion for summary judgment, the court may reconsider the motion. Here, new evidence, i.e., Dr. McHugh’s IME report, was presented by the claimant in support of his motion. This new evidence and the medical evidence previously submitted in support of the motion demonstrated that the claimant was entitled to summary judgment.

| .^Furthermore, contrary to the City’s assertion, the motion for summary judgment — which is merely a procedural device — was not a “transaction or occurrence” in the context of La. C.C.P. art. 425, which deals with preclusion by judgment, or La. R.S. 13:4231, which concerns res judicata. In particular, we note that the doctrine of res judicata is inapplicable to the instant case.

CONCLUSION

The WCJ’s ruling is affirmed. Costs of this appeal are assessed against the City of Shreveport in accordance with the provisions of La. R.S. 13:5112 in the amount of $476.57.

AFFIRMED.


author: LOLLEY, J.

text:
    Cynthia Denise VEAL, Plaintiff-Appellant v. Patrick Bouvier VEAL, Defendant-Appellee.
    No. 45,100-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Anthony Hollis, for Appellant.
    S.P. Davis, Sr., for Appellee.

      Before STEWART, DREW and LOLLEY, JJ.
   LOLLEY, J.

|, Cynthia Denise Veal appeals a judgment by the First Judicial District Court for the Parish of Caddo, State of Louisiana, in favor of her ex-husband, Patrick Bouvier Veal, which judgment sustained his exception of no right of action and no cause of action. For the following reasons, we reverse the trial court’s judgment.

Facts

On June 27, 2008, Cynthia Veal filed her petition for divorce against Patrick Veal, seeking a divorce from him pursuant to La. C.C. art. 102. She also sought interim periodic spousal support and final periodic spousal support. Patrick, in turn, filed an answer and reconventional demand against Cynthia, requesting a divorce be granted pursuant to La. C.C. art. 103, claiming that the parties had no children and had been living separate and apart in excess of 180 days.

The trial court signed the judgment of divorce on August 2, 2007, which judgment was retroactive until the date of demand, granting Patrick a divorce from Cynthia based on La. C.C. art. 108. The judgment also decreed that a one-half interest in any and all community property was to be reserved to the parties and that each party had “the right to pursue and defend against any additional incidental matters to his divorce, including but not limited to, spousal support.”

Subsequently, on February 17, 2009, Patrick filed an exception of no right and no cause of action against Cynthia seeking to have her claims against him dismissed for abandonment pursuant to La. C.C.P. art. 3954. Cynthia’s attorney of record was not present at the hearing on the rule, and pthe trial court entered judgment in favor of Patrick dismissing Cynthia’s action against him-ineluding her claim for spousal support. Cynthia now appeals the trial court’s judgment.

Discussion

In her first assignment of error, Cynthia argues that the trial court erred in granting Patrick’s exception and dismissing her claim without allowing her an opportunity to argue in its opposition. The trial court convened twice on this matter. At the February 17, 2009 hearing, Cynthia’s attorney appeared and requested additional time in which to file a written response to Patrick’s exception. The trial court granted him until February 27th and Patrick’s attorney until March 13th to respond to the opposition. The parties returned to court on April 7, 2009. Although Cynthia was in attendance, her attorney was not. The trial court noted that Cynthia’s attorney had not filed the written opposition that he requested he be allowed to file. After waiting a short time for Cynthia’s attorney to appear, the trial court proceeded and heard the argument on Patrick’s behalf, ultimately ruling in his favor and dismissing all of Cynthia’s claims against Patrick.

Cynthia had an opportunity to argue; however, her attorney failed to take it. In fact, Cynthia’s attorney not only failed to appear at the hearing on the rule, he also failed to file a brief in opposition to the exception. Despite his absence, we do not believe that had the trial court heard testimony from Cynthia, it would have served to change the outcome considering that the issues were legal and not of a factual nature. Cynthia’s testimony would [ shave added nothing to advance her position. We do not believe the trial court erred in this respect at all; thus, this particular assignment of error is without merit.

In her second assignment of error, Cynthia argues, in general, that the trial court erred in ruling that her divorce petition was abandoned. Louisiana C.C.P. art. 8954 is clear that: “A divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that Article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition.” Here, however, the trial court overreached in its judgment, because it dismissed Cynthia’s suit against Patrick on all matters. We do not believe that Cynthia’s claim for incidental matters, i.e., spousal support, should have been dismissed, and the trial court’s judgment was in error.

We find that Cynthia’s claim for spousal support, an incidental demand specifically listed in La. C.C. art. 105, remained viable for two reasons. First, La. C.C.P. art. 8954 specifically applies only to the claim for an art. 102 divorce. When Patrick obtained his judgment of divorce on August 2, 2007, Cynthia’s claim for an art. 102 divorce immediately was extinguished. The parties were divorced — there was no further relief to be given in connection with that specific claim. Thus, when the trial court considered Patrick’s exception, Cynthia’s claim for an art. 102 divorce could not be at issue. Her claim for divorce was moot. Moreover, because Cynthia’s claim for spousal support was an incidental matter defined by La. C.C. art. 105, La. C.C.P. art. 3954 was inapplicable to that particular claim.

1 -tSecond, La. C.C. art. 105 gives a party the ability to make such claims for incidental matters “[i]n a proceeding for divorce or thereafter ...,” which indicates that such incidental matters are viable even after the divorce claim has been concluded. In this case, when Patrick’s divorce was granted, the trial court specifically reserved to each party “the right to pursue and defend against any additional incidental matters to this divorce, including, but not limited to, spousal support.” Therefore, even though the parties were divorced, Cynthia’s claim for spousal support was specifically reserved by the trial court in the ruling. So considering, whereas the dismissal of the art. 102 divorce was not necessarily in error, the trial court erred in dismissing Cynthia’s claims for the incidental matters against Patrick that were included in her original petition against him.

Conclusion

For the foregoing reasons, the judgment in favor of Patrick Veal is reversed, and all costs of this appeal are assessed to him.

REVERSED.

      . The right to claim spousal support after a divorce is subject to a peremption of three years, which period begins to run from three events listed in La. C.C. art. 117.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Darkeldrius COOPER, Appellant.
    No. 45,089-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Eric G. Johnson, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, DREW and LOLLEY, JJ. STEWART, J.
   STEWART, J.

|,The defendant, Darkeldrius Cooper, pled guilty to two counts of distribution of a Schedule II controlled dangerous substance (CDS), namely cocaine, in violation of 40:967(A). Cooper was sentenced to 27 years at hard labor on each count, to run concurrently, without benefit of probation, parole, or suspension of sentence for the first two years. The defendant now appeals, urging that his sentence is excessive. For the reasons discussed below, we affirm the defendant’s sentence.

FACTS

In April of 2008, the Webster Parish Sheriffs Office obtained information that Cooper had been distributing crack cocaine in Springhill, Louisiana, and arranged for a confidential informant to attempt to buy drugs from him. The informant successfully bought $20.00 worth of crack cocaine from Cooper on April 10, 2008, and $40.00 worth of crack cocaine from the defendant on April 29, 2008. Both incidents took place in Springhill, Louisiana, in Webster Parish, and were captured on video and audio tape. The substances bought from Cooper were sent to the North Louisiana Crime Lab to be tested and were confirmed to be crack cocaine.

On September 4, 2008, Cooper was charged by a bill of information with two counts of distribution of a Schedule II Controlled Dangerous Substance, namely cocaine. Pursuant to a plea agreement, he pled guilty to the charge on March 9, 2009, and the state agreed to dismiss several unrelated charges including aggravated flight from an officer, possession of cocaine with intent to distribute, careless operation of a motor vehicle and failure to stop at a stop sign, possession of marijuana with intent to |2distribute, aggravated burglary, unauthorized use of a vehicle, and theft. The state also agreed not to file a multiple offender bill against the defendant. A presentence investigation report (PSI) was ordered.

Cooper was sentenced to 27 years at hard labor on each count, to run concurrently, without benefit of probation, parole, or suspension of sentence for the first two years, pursuant to La. R.S. 40:967(B)(4)(b). His motion to reconsider sentence, which urged only excessiveness of sentence, was subsequently denied. Cooper now appeals.

LAW AND DISCUSSION

In Cooper’s sole assignment of error, he alleges that the trial court erred in imposing this sentence upon him. More specifically, he asserts that as a second felony offender, with a prior conviction for possession of cocaine, he should not have received a sentence “anywhere near the maximum sentence which the trial court could have imposed.”

Since Cooper’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1998), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 789 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not |sset aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 852 So.2d 116237 (La.App.2d Cir. 8/20/03), m~it denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C.Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

The articulation of the factual basis for a sentence is the goal of La.C.Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, the determination of whether the sentence imposed is too severe is contingent upon the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. 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. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

After reviewing the record, we do not find the defendant’s sentence is constitutionally excessive. The record reveals that the trial court considered the aggravating and mitigating circumstances, thereby complying with La.C.Cr. P. art. 894.1, and tailored the sentence to the instant offense and this offender. The presentence investigation report reviewed by the trial court indicates that the background of the defendant and the circumstances of the case support the 27-year sentence.

Cooper is a second felony offender and the instant offense is not an isolated incident, but rather involves two separate incidents of selling crack cocaine over the span of a month. Additionally, not only did the defendant receive less than the maximum sentence for this offense, but he also received a significant reduction in potential exposure to confinement |5through his plea bargain agreement because the state agreed not to file a multiple offender bill.

The imposition of the 27-year concurrent sentence is not grossly disproportionate to the severity of the offense, nor is it shocking to the sense of justice. Finding no manifest abuse of discretion, this court may not set aside this sentence as excessive.

CONCLUSION

For the foregoing reasons, the conviction and sentence is affirmed.

AFFIRMED.