author: PAUL A. BONIN, Judge.

text:
    Terri M. MARINO v. TENET HEALTHSYSTEM MEDICAL CENTER, Inc., et al.
    No. 2009-CA-0915.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2009.

      Donald F. De Boisblanc, Donald F. De Boisblanc, Jr., and Steven M. Lozes, New Orleans, LA, for Plaintiff/Appellant, Terri M. Marino.
    Deborah I. Schroeder, Batiza Godofsky Schroeder & Coles, Metairie, LA, for Defendant/Appellee, Louis Linares, M.D.
    Kurt S. Blankenship, Robert I. Baudouin, Richard E. Gruner, Jr., Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellee, Tenet Healthsystem Memorial Medical Center, Inc. d/b/a Memorial Medical Center.
    (Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| tThis is a medical malpractice claim. The trial court found that the patient’s claim against the named healthcare providers was prescribed and dismissed the patient’s claim with prejudice. For the reasons which follow, we affirm the trial court’s judgment.

I

Dr. Luis Linares treated Terri Marino’s spinal cancer in July 2005 with radiation therapy. Earlier in 2005 he had treated her breast cancer with radiation therapy. In July 2006, while shopping, Ms. Marino experienced an onset of tingling and numbness around her thighs, knees, calves and feet. Over the next several days she could not move her leg. It was the beginning of paralysis. She went to the emergency room at East Jefferson General Hospital on July 10, 2006. There she was examined by several physicians who suspected that her symptoms appeared to be caused by transverse myelitis or TM. One possible cause of TM is |2spinal radiation therapy. Those physicians informed her that radiation treatment is one among several causes of TM. None of those physicians stated that the spinal radiation treatment she received from Dr. Linares may have violated the standard of care owed to her by Dr. Linares.

Ms. Marino then sought out Dr. Linares, whose practice location had changed on account of the storm in 2005. She sought Dr. Linares not for treatment but for information about her prior radiation therapy. Dr. Linares advised Ms. Marino that he was only able to locate the records for the radiation treatment to her breast; he was unable to locate the records from spinal radiation treatment. Ms. Marino thought that this was curious. According to Ms. Marino, Dr. Linares was unable to express any opinion about whether the doses used in her spinal radiation treatment may have caused TM, but he did inform her that radiation therapy is one of the causes of TM. Ms. Marino claims that she was never informed of the possibilities of TM as a result of radiation therapy and never gave informed consent to the radiation therapy. Dr. Linares and Tenet HealthSystem Memorial Medical Center, Inc. (“Tenet”) are unable to produce any document showing that Ms. Marino gave her consent to the radiation therapy with the information that it might cause TM. Ms. Marino’s discussion with Dr. Linares took place on July 19, 2006.

II

On May 8, 2008, Ms. Marino filed her request for a medical review panel against Dr. Linares and Tenet. Dr. Linares and Tenet filed an exception of ^prescription in the district court. See La. R.S. 40:1299.47(B)(2)(a) and La. C.C.P. art. 927 A(l). After considering the evidence offered by the parties, the trial court found that Ms. Marino’s malpractice claim was prescribed and dismissed it with prejudice. See La. C.C.P. arts. 929 A, 931, 934, 1673, and La. R.S. 40:1299.47(B)(2)(b).

The prescriptive period for this medical malpractice claim is set forth in La. R.S. 9:5628 A:

No action for damages for injury or death against any physician, ... [or] hospital, ... as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of discovery, in all events such claims shall be filed within a period of three years from the date of the alleged act, omission, or neglect, (emphasis supplied)

The parties agree that, under the facts of this case, “the date of discovery” is the trigger. Dr. Linares and Tenet contend that July 19, 2006 is that date and, consequently, the filing of the claim on May 8, 2008, more than one year later, is untimely and prescribed. Ms. Marino counters that she has yet to “discover” facts sufficient to establish malpractice, but that her filing was timely in that it was within three years of Dr. Linares’ alleged act of malpractice in July 2005.

The trial court found that the date of discovery was July of 2006. In reviewing a peremptory exception of prescription, a reviewing court will not |4disturb the factual conclusions of the trial court unless they are manifestly erroneous. Davis v. Hibernia National Bank, 98-1164, p. 2 (La.App. 4 Cir. 2/24/99), 732 So.2d 61, 63. We review the trial court’s ruling under the manifest error or clearly wrong standard, in which the trial court will not be reversed in the absence of clear error. The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 149.

An action for recovery for medical malpractice shall not be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect. La. R.S. 9:5628 A. If the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. LeBreton v. Rabito, 97-2221, p. 6 (La.7/8/98), 714 So.2d 1226, 1228 (citing Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206). For the reasons that follow, we find that the trial court was reasonable in finding that Ms. Marino discovered the alleged act, omission, or neglect in July of 2006, and the trial court was correct in finding that Ms. Marino did not file her claim for medical review panel within one year from that discovery.

Ill

The dispute centers on what constitutes “discovery” by a patient under La. R.S. 9:5628 A. Justice Knoll, writing for a unanimous Supreme Court, set out the basic test in Campo v. Correa, 01-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510-511:

| ¿Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort ... Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription.

According to this standard, the plaintiffs mere apprehension that something may be wrong is insufficient for prescription to begin running; the plaintiffs knowledge must rise to the level of constructive knowledge: either she knew or should have known through the exercise of reasonable diligence that her problem may have been caused by an act of malpractice. Prescription will not run if it was reasonable for the plaintiff not to recognize that the condition might be related to the treatment. In such an inquiry, the ultimate issue is the reasonableness of the plaintiffs action or inaction, in light of her education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Id. at 511 (citing Griffin v. Kinberger, 507 So.2d 821 (La.1987)).

Prescription commences and continues when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Griffin v. Kinberger, supra. The test for determining a plaintiffs knowledge turns on her reasonableness, whether a cause of action was reasonably “knowable” by a plaintiff. Claim of Dede, 98-2248, p. 4 (La.App. 4 Cir. 12/2/98), 729 So.2d 603, 606. The plaintiff need not be informed by an attorney or physician of the possibility of malpractice before prescription begins to run. Claim of Aron, 96-2665 (La.App. 4 Cir. 5/21/97), 695 So.2d 553, 556.

| ¿Ms. Marino underwent radiation therapy on her spine in July of 2005. In July of 2006, she experienced the beginnings of paralysis while waiting in line at Wal-Mart. By July 10, 2006, Ms. Marino’s leg numbness had worsened, and she checked in to East Jefferson Hospital where she stayed for testing for several days. While hospitalized, Ms. Marino learned from both Dr. Fuqua and Dr. Mel-cher that radiation therapy was a possible cause of this paralysis. After learning of this possible relationship between her past radiation and present paralysis, she sought further information from her previous doctor, Dr. Linares. Dr. Linares also informed Ms. Marino that her spinal radiation therapy, among other things, could lead to transverse myelitis. Dr. Linares told Ms. Marino that he had her breast radiation records, but he could not find the records of her spinal radiation treatment. Ms. Marino, in her deposition testimony, noted that she thought this was “kind of odd.” The trial judge found that July of 2006 was the trigger date for the one-year prescription period set forth in R.S. 9:5628 A.

In Griffin v. Kinberger, supra at 823, the Louisiana Supreme Court noted that prescription will not run merely because a victim is aware that an undesirable condition developed at some point in time after the medical treatment. Prescription does not run against one who is ignorant of the facts upon which a cause of action is based, as long as that ignorance is not willful, negligent, or unreasonable. Id. Prescription will, however, begin to run when it becomes unreasonable for the victim not to recognize that the undesirable condition is treatment-related. Id. at 824. Ms. Mari-no learned in July of 2006 that her radiation treatment to the thoracic vertebra of July 2005 was one possible cause of TM. This information — bolstered 17by her inquiry with Dr. Linares on July 19, 2009, and her belief that she was not informed of the risks associated with radiation — gave rise to constructive knowledge that Ms. Marino may have been the victim of a tort. This knowledge, as the trial judge correctly found, was sufficient to commence the running of prescription. See Campo, supra at 511. When Ms. Marino was told that radiation therapy was one of the causes of her paralysis, she noted her concern, reflected in her deposition testimony: “It [radiation therapy] was the only thing I had to go on that I knew I had.” This demonstrates knowledge that excited her attention and put her on guard to call for inquiry sufficient to start the prescriptive period. Ms. Marino never gained any further knowledge about her condition and its connection to her treatment after 2006; she admits that the concern that she had about the possible relationship between radiation and TM was the same in 2008 as it was at the time of her diagnosis in 2006. Moreover, she has never identified what she might have learned during that period that would more clearly demonstrate that her condition was related to medical malpractice. It is true that, due to the loss of some of her medical records, Ms. Marino did not have conclusive proof that her TM was related to an act of malpractice when she was diagnosed in 2006. However, her belief that she had not given informed consent, coupled with the severity of her condition and her knowledge of spinal radiation’s connection to TM, gave rise to constructive discovery sufficient to commence the running of prescription against her. Because Ms. Marino’s date of discovery was over a year prior to her filing for request of medical review panel, her claim has prescribed. The trial court was reasonable in finding that Ms. Marino had constructive knowledge in July of 2006 that she may be the victim of a tort, and the trial court was correct in sustaining Dr. Linares and Tenet’s exception of prescription.

_kiv

In her claim, Ms. Marino also asserts that she was never informed that radiation therapy was associated with the risk of TM, a claim under the Louisiana Informed Consent Law that has likewise prescribed. Dr. Linares asserts that the records pertaining to Ms. Marino’s spinal radiation — including any written informed consent she may have given — were lost in Hurricane Katrina. Ms. Marino asserts that she was never told of the risk of paralysis. When Ms. Marino learned of her diagnosis of TM and its possible relationship to radiation therapy in July 2006, she would have had actual knowledge that she had not been warned of this risk and that she may be a victim of a tort. Her claim on the issue of informed consent— having been filed in March 2008 (over a year after gaining this knowledge) has prescribed.

Ms. Marino’s deposition testimony reflects that she does not recall ever being consulted about the risks for any of her treatments; she did not recall discussing the possible risks of her lumpectomy surgery, chemotherapy, or her radiation therapies. The records of Ms. Marino’s spinal radiation therapy have been missing since Hurricane Katrina, including any written informed consent she may have given as well as any record of the radiation administered to her spine. As Ms. Marino contends that she was never told prior to her spinal radiation that such treatment could cause TM, this should have further compounded her curiosity upon learning of her TM diagnosis in July of 2006. During and after this diagnosis, Ms. |9Marino was experiencing severe numbness in her legs, and she became paralyzed shortly thereafter. The severity of Ms. Marino’s resultant injury underscores the unreasonableness of her inaction. See, e.g., Cadogan v. McClanahan, 03-0603, p. 9 (La.App. 4 Cir. 11/12/03), 861 So.2d 250, 256 (emphasis added) (“The ultimate issue is the reasonableness of the patient’s action or inaction, in light of [her] education, intelligence, the seventy of the symptoms, and the nature of the defendant’s conduct.”). She was informed by multiple physicians that her spinal radiation therapy could be the cause. Believing she had never been warned of the risk of severe paralysis, Ms. Marino was then on alert; her attention was excited and she was put on her guard sufficient to commence the running of prescription. She would have needed to file her request for a medical review panel within one year to overcome the exception of prescription, or she might have pointed to some additional piece of information that she discovered within the year prior to filing that elucidated the basis of her malpractice claim, but she did not do so. Ms. Marino has not asserted that she discovered any new information related to her malpractice claim since the time of her diagnosis in 2006, and her request was not filed until March of 2008 — beyond the one-year prescriptive period for medical malpractice claims. Accordingly, the district court’s finding that Ms. Marino’s “date of discovery” was in July of 2006 was reasonable, and its decision to sustain Dr. Li-nares and Tenet’s exception of prescription is correct. The ruling of the district court is affirmed.

AFFIRMED.

      . Tenet provides radiation facilities and technicians.

      . TM, when caused by radiation therapy, is sometimes referred to as radiation myelitis.

      . The request is filed with the Louisiana Division of Administration pursuant to La. R.S. 40:1299.42 et seq.

      . La. C.C. art. 3452 provides that ”[pr]escription must be pleaded. Courts may not supply a plea of prescription.” An earlier exception of prescription had been denied by the trial court to afford the parties additional time to conduct discovery. Ms. Marino has filed her request for medical review of her claim, which acts to suspend the prescriptive period. See La. R.S. 40:1299.47(A)(2)(a).

      . The issue of the malpractice of Dr. Linares or of Tenet had not been submitted to the medical review panel at the time of the ruling on the exception.

      . La. C.C. art. 3447 slates: “Liberative prescriptive is a mode of barring actions as a result of inaction for a period of time."

      . The trial judge stated that she had “read [Ms. Marino’s] deposition in its entirety to get the full context of what she knew and when she knew it. And unfortunately, she admitted she knew in July of 2006.”

      . The parties refer to "five possible causes" of TM without clearly describing the other possible causes. A review of the record reveals four: virus, vasculitis, radiation therapy, and a chipped bone moving into the spine.

      . The Louisiana Informed Consent Law requires disclosure of the nature and purpose of a medical or surgical procedure, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or function of any organ or limb, or disfiguring scars. La. R.S. 40:1299.40 A. However, because the claim has prescribed, we do not review it under the informed consent statute or the standards enumerated in Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988).


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Stacey James LINNEAR, Appellant.
    No. 44,830-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne Owen, Sarah Midboe, William Edwards, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

hThe defendant, Stacey J. Linnear, was charged by bill of information with second degree battery in violation of La. R.S. 14:34.1. A jury convicted the defendant as charged and the trial court sentenced him to four years and nine months at hard labor with credit for time served. Because the evidence was sufficient to convict the defendant and because his near maximum sentence is not excessive, we affirm the conviction and sentence.

Facts

In the early morning hours of October 6, 2007, an unidentified man was carried out of Shreveport’s Kokopelli’s nightclub by club security after he was physically attacked by another patron. Security placed the man, who was unconscious, on the sidewalk outside the club. Police officers patrolling the downtown area immediately responded. The man was unresponsive to questioning and his face appeared severely disfigured. The victim was taken by ambulance to LSU Medical Center, where he was treated for multiple fractures of the jaw, an injury to his head and later, a decubitus ulcer on his back. Police were unable to locate any witnesses at the scene and surveillance videos failed to capture what went on inside the club.

The victim was later identified as John Fuggins. Fuggins recalled that prior to entering the club that evening he, along with his cousin and two other friends, attended a high school football game. Fug-gins admitted that they then proceeded to ride around drinking, smoking marijuana, and taking Ecstasy. Around midnight, the friends arrived at Kokopelli’s. Fuggins, only 20 years of age at the time, entered the nightclub through the VIP |2entrance. Fuggins remembers going to the bar to get a drink and then walking around the club with his cousin. He claimed that he was trying to stay out of trouble because he did not want to get thrown out for being underage. Fuggins’ last memory from the night in question was throwing a neighborhood gang sign in rhythm to the music. Fuggins testified that he was not affiliated with a gang and that he was merely representing the neighborhood in which he was raised.

On October 9, 2007, pursuant to an anonymous tip received by Fuggins’ mother, Detective Demery, of the Shreveport police department’s homicide division, picked up defendant, Stacey J. Linnear, for an interview. After waiving his Miranda rights, Linnear agreed to make a statement, the admissibility of which is not contested. In his statement, Linnear recalled arriving at Kokopelli’s around 11:00 p.m. on October 5, 2007. He purportedly did not have anything to drink that evening. He alleged that he had been at the club for a couple of hours when he witnessed Fuggins first staring at him and then circling around him. He further stated that Fuggins threw gang signs in his face and kept bumping him as he walked past. According to Linnear, he had let Fuggins’ behavior “pass” too many times and something “clicked” as he “went off’ on him. He punched Fuggins with enough force to cause him to fall to the club’s cement floor. In his statement, Linnear admits that after the first punch, Fuggins did not have an opportunity to fight back. The defendant proceeded to get on top of Fuggins and hit him repeatedly before leaving the club. Defense witness, Christopher Crutchfield, who failed to come forward initially, but was later ^interviewed by investigators, told detectives before trial that “the first lick knocked [the victim] out.” Crutchfield later testified that Fug-gins’ eyes were still open after the first punch. Crutchfield also testified that because of Fuggins’ behavior, he felt that Linnear was in danger and only used the force necessary to defend himself.

After Detective Demery concluded the interview with Linnear, he was taken into custody and charged with second degree battery in violation of La. R.S. 14:34.1. A jury convicted Linnear of the crime charged and he was sentenced to four years and nine months at hard labor, with credit for time served. Defendant now appeals.

Sufficiency of the Evidence to Convict

Linnear argues that the evidence presented at trial was insufficient to support his conviction. He argues that because he was acting in self-defense, he lacked the specific intent to cause severe bodily harm. Linnear additionally asserts that it is unclear what actually caused Fuggins’ injuries. Therefore, the evidence used to convict the defendant was purely circumstantial and the state failed to exclude every reasonable hypothesis of innocence.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. 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. 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; State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. 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).

La. R.S. 14:34.1 defines second degree battery as a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury. The statute defines serious bodily injury as bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

| fjSecond degree battery is a specific intent crime and therefore the evidence must show that the defendant intended to inflict serious injury. State v. Fuller, 414 So.2d 306 (La.1982); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d. Cir.4/5/02), 813 So.2d 1262, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377. See also State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244, writ denied, 07-0530 (La.12/7/07), 969 So.2d 619.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia, supra. State v. Huizar, 414 So.2d 741 (La.1982); State v. Steward, 42,643 (La.App.2d Cir.11/14/07), 969 So.2d 804; State v. McGee, 37,919 (La.App.2d Cir.12/10/03), 862 So.2d 452. State v. Hill, supra. In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the 17defendant beyond a reasonable doubt as to every element of the offense. State v. Huizar, supra.

In this case, the state proved each of the essential elements of the crime of second degree battery beyond a reasonable doubt. There is ample evidence proving that the defendant committed a battery upon the victim and that he did so with the specific intent to cause serious bodily injury.

Linnear argues he struck Fug-gins in self-defense, thereby negating the possibility he was acting with the specific intent to commit second degree batteiy. The use of force or violence upon the person of another is justifiable under La. R.S. 14:19 when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Robinson, 37,043 (La.App.2d Cir.05/14/03), 848 So.2d 642. The issue of self-defense requires a dual inquiry, an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. Robinson, supra, citing State v. McClure, 34,880 (La.App.2d Cir.08/22/01), 793 So.2d 454.

It is clear from the record that Lin-near’s actions were neither reasonable nor necessary. Although Fuggins may have bumped into Linnear once or twice and even waved gang signs in his face, the response of beating the defendant unconscious was unreasonable. The force was also unnecessary because Linnear admitted that after the first punch, Fuggins |swas not in a position to fight back. It is evident that Linnear was not fighting to protect himself, but rather because he felt disrespected by the young victim’s actions. The fact that he continued to beat the victim after he had fallen unconscious is clearly indicative of a specific intent to inflict serious bodily injuiy. Although the defense’s sole witness testified that Lin-near was acting in self-defense, the jury’s decision to reject his testimony is clearly supported by the law and evidence and must be given great deference.

Furthermore, the injuries sustained by Fuggins alone support a conclusion that Linnear had the specific intent to cause serious bodily injury. The statute defining serious bodily injury includes unconsciousness, extreme physical pain, and protracted and obvious disfigurement, all of which Fuggins suffered. The treating emergency room resident at LSU Medical Center, Dr. Brandon P. Smith, testified to the extent of Fuggins’ injuries. Fuggins remained in the Intensive Care Unit, sedated, and on mechanical ventilation for four days. As defined by the Glasgow Coma Scale, Fuggins suffered from a “severe closed-head injury.” Fuggins also sustained three fractures to his jaw, requiring two corrective surgeries. Additionally, his mouth had to be wired shut, confining him to a liquid diet. Moreover, Fuggins was forced to remain in bed for a prolonged period of time, causing a breakdown of skin on his back, resulting in a decubitus ulcer.

In addition to arguing he lacked the requisite specific intent to cause great bodily injury, Linnear asserts that there was insufficient evidence to show that Linnear caused Fuggins’ injuries. He asserts that only |acircumstantial evidence links Fug-gins’ injuries to Linnear and that this circumstantial evidence does not exclude every reasonable hypothesis of innocence. In the defendant’s own statement, he admitted that he reacted to the victim’s antics by knocking him to the ground and continuing to punch him. Linnear’s statement was corroborated by Crutchfield who testified that “when he [Fuggins] fell, Stacey got on him; hit him two more times.” Although the defense offered alternative hypotheses, suggesting that Fuggins’ injuries may have been caused by other patrons dancing or by security personnel when they carried him out of the club, the jury chose to discredit these explanations. Rather, the jury found that the strength of circumstantial evidence provided a direct link between Linnear’s admitted acts and Fuggins’ injuries and excluded all hypotheses set forth by the defense.

Finally, the defense claims discrepancies in the testimony given by state witnesses to discredit their veracity. These discrepancies were insignificant details, such as what type of alcohol the victim and his friends were drinking, whether the club was crowded or not, and whether Fuggins was asked for identification by club employees upon entering the club. These incongruities were provided by witnesses who did not see the altercation and therefore do not diminish the sufficiency of the proof of the crime.

From the evidence, the jury could have reasonably inferred that after feeling disrespected, Linnear intentionally attacked Fuggins with the specific intent to inflict serious bodily injury. When these facts are viewed in the light most favorable to the prosecution, a rational trier of fact could Imhave rejected Linnear’s claims of self-defense and found the essential elements of the crime proven beyond a reasonable doubt. This assignment of error is without merit.

Excessive Sentence

Linnear additionally argues that the sentence imposed is unconstitutionally excessive. He contends that he was only induced to use violence after Fuggins acted aggressively toward him. He further claims that there is no indication that this type of behavior will be repeated, given that he is a first time felony offender and that he has participated in rehabilitative programs while incarcerated, including a course in anger management. Finally, the defense asserts that this sentence places an undue hardship on Linnear’s family because he will be unable to work and provide support. Linnear is charged with the care of his disabled child who suffers from cerebral palsy, and he has recently endured other family difficulties, including the death of his father, a stroke suffered by his mother, and an attack on his wife.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or | nmechamcal 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. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267. 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. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

|12The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

Under La. R.S. 14:34.1, the maximum sentence that may be imposed for the crime of second degree battery is five years at hard labor. Linnear was sentenced to four years and nine months at hard labor, with credit for time served. The trial court utilized the sentencing guidelines found in Article 894.1 and provided an adequate factual basis for the sentence imposed. The court considered the gravity and seriousness of the offense, the injuries sustained and the violent nature of the attack. The trial court also considered the defendant’s criminal history, which included misdemeanor convictions for disturbing the peace by fighting and domestic abuse battery. Specifically, the trial court noted the batteries and the fact that defendant’s prior probations had been revoked for noncompliance.

In reviewing the sentence for constitutional excessiveness, we find no abuse of discretion in the trial court’s choice of sentence. Linnear became ¡^angered, lost control of himself, and knocked the defendant unconscious. He then left the scene, leaving the victim unattended in the middle of the dance floor. The beating was so severe that Fuggins was in intensive care for weeks and is still undergoing a lengthy and costly rehabilitative process.

In light of Linnear’s criminal history of violence to persons and the seriousness of the injuries suffered by the victim, we find the near maximum sentence to be appropriately tailored to this defendant. Thus, the sentence imposed does not shock the sense of justice. This assignment is therefore without merit.

Conclusion

Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of second degree battery proven beyond a reasonable doubt. The jury apparently believed the victim’s account of the incident and rejected the defendant’s assertion of self-defense. Moreover, the imposed sentence does not shock the sense of justice and is therefore not excessive.

CONVICTION AND SENTENCE AFFIRMED.

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


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Shawn HAYNES, Appellant.
    No. 44,868-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Ray Patillo, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

| pursuant to a plea bargain agreement, Defendant, Shawn Haynes, pled guilty to attempted aggravated rape of a minor under the age of 13. The trial judge sentenced Defendant to serve 50 years at hard labor without the benefit of probation, parole or suspension of sentence. Defendant was also ordered to register as a sex offender. Defendant now appeals his sentence, urging that it is unconstitutionally excessive. For the reasons stated herein, the sentence of Defendant is affirmed.

FACTS

During the time period between November 27, 2006, and May 25, 2008, Defendant repeatedly forced the female victim, A.S., to participate in various sexual acts. The abuse began when A.S. was 10 years old and lasted until she was 11 years old when Defendant was arrested. The sexual acts Defendant forced on the victim included: (1) Defendant undressing himself and the victim and placing his “private parts against her private parts”; (2) Defendant forcing the victim to perform and receive oral sex from Defendant; and (3) Defendant causing the victim to bleed by penetrating her with his finger. Defendant made several attempts to penetrate the victim with his penis, but was never able to fully do so. The victim reported that the abuse took place almost every night for a year.

On July 7, 2008, Defendant was charged by a bill of indictment with three counts of aggravated rape, one count of molestation of a juvenile and one count of indecent behavior with a juvenile in connection with the sexual abuse of two victims, one of whom was A.S. Originally, on July 21, 2008, Defendant pled not guilty to all charges. Subsequently, on November 10, 122008, in accordance with a plea bargain agreement, Defendant pled guilty to the first count of attempted aggravated rape. The State dismissed all other counts, including the count involving the second victim.

At Defendant’s sentencing hearing, the trial judge heard two victim impact statements, reviewed Defendant’s presentence investigation report and noted for the record the factors set forth in La. C. Cr. P. art. 894.1. The trial judge determined that Defendant was in need of correctional treatment and further noted that a lesser sentence would deprecate the seriousness of Defendant’s crimes. The trial judge also pointed out Defendant’s apparent lack of remorse for his crimes given Defendant’s original plea of not guilty. Further, the trial judge stated that Defendant should have contemplated that his criminal conduct, lasting for a year-long period of time, would cause serious harm and severe emotional injuries to the victim.

In consideration of the mitigating factors, the trial judge noted that Defendant had essentially no prior criminal history. The trial judge further found, however, that Defendant had been afforded leniency through his plea bargain agreement, wherein all but one of the original counts against him were dismissed. Accordingly, the trial judge sentenced Defendant to serve 50 years at hard labor without the benefit of probation, parole or suspension of sentence and required him to register as a sex offender.

DISCUSSION

Assignment of Error Number One (verbatim): The Trial Court erred in that the sentence imposed upon Shawn Haynes is constitutionally excessive.

|sIn Defendant’s sole assignment of error, he claims that his sentence is unconstitutionally excessive because it is the maximum sentence allowable for attempted aggravated rape in violation of La. R.S. 14:27 and La. R.S. 14:42. Defendant argues that maximum sentences are intended to be reserved for the “most egregious” offenders. Defendant further points to his lack of a prior criminal history.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating factor so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. '894.1 is the articulation of the factual basis for a sentence, not the 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. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his personal history, including his age, family ties, marital Lstatus, health and employment record. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. In cases where a defendant has pled guilty to an offense which does not adequately describe his conduct or he has received a significant reduction in potential exposure to confinement through a plea bargain agreement, the trial court has great discretion in imposing even the maximum sentence possible for the pled [r,offense. Id.; State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

In the case sub judice, the record shows that the trial judge adequately considered the aggravating and mitigating circumstances applicable to Defendant, thereby complying with La. C. Cr. P. art. 894.1. Further, Defendant received a substantial benefit through his plea bargain agreement, wherein the State dismissed all but one count against him. Additionally, any adult residing in Louisiana who has pled guilty to, or has been convicted of, a sex offense or a criminal offense against a victim who is a minor as defined in La. R.S. 15:541, is required to register and provide notification as a'sex offender. See La. R.S. 15:542.

Accordingly, we do not find that the trial judge manifestly abused his discretion in sentencing Defendant. Defendant’s argument regarding the excessiveness of his sentence is without merit.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Shawn Haynes, is affirmed.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Kendrick SCOTT.
    No. 09-748.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      David E. Lafargue, Lafargue Law Office, Marksville, LA, for Appellee, State of Louisiana.
    Charles A. Riddle, III, District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Kendrick Scott.
    Kendrick Scott, Angola, LA, pro se.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

hThe defendant was convicted of second degree murder. He was subsequently sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant appeals his conviction. For the following reasons, we affirm.

Factual and Procedural Background

The events at issue in the case occurred around 3:00 a.m. on April 20, 2008, in the parking lot of Bize’s Lounge in Marksville, Louisiana. As the lounge was closing, a large crowd gathered in the parking lot, and several fights broke out. Bize’s Lounge’s security maced the crowd. The victim, Javondre Ravare, and his girlfriend, Carla Jones, upon leaving the front door, smelled the mace and decided to exit the lounge through a side door. Ms. Jones testified that, as the couple made their way to cross the street to get to their car, Mr. Ravare noticed a “commotion going on” across the street and instructed her to “stay right there.” Derrick Stevenson testified that the “commotion” was the defendant and several of his friends beating Brandon Thomas’s car in what Mr. Stevenson thought was an attempt to get Mr. Thomas out of the car. Several witnesses testified that when Mr. Ravare turned the corner of the club, the defendant struck Mr. Ravare several times with a baseball bat. Mr. Ravare fell to the ground unconscious and was later pronounced dead at the Avoyelles Hospital.

The defendant, Kendrick Scott, was charged by indictment filed on August 28, 2008, with second degree murder. The defendant pleaded not guilty and a trial by jury began on March 3, 2009. On March 4, 2009, a unanimous twelve-person jury returned a verdict of guilty of second degree murder. On March 10, 2009, the defendant was sentenced to life imprisonment without benefit of probation, parole, |2or suspension of sentence. The defendant filed several motions, including a Motion for Post Verdict Judgment of Acquittal, Judgment Notwithstanding the Verdict, Motion for New Trial, and a Motion to Reconsider Sentence, which were all denied.

The defendant now appeals asserting two assignments of error. First, the defendant contends the evidence is insufficient to support his conviction. Second, the defendant contends that his defense counsel was ineffective.

Discussion

Eitots Patent

In accordance with La.Code Crim.P. art. 920, we have reviewed this matter for errors patent and find there are no errors patent.

Sufficiency of the Evidence

In his first assignment of error, the defendant contends that the trial court erred in finding him guilty of second degree murder. Specifically, the defendant argues the testimony given is not credible because “[i]n all the commotion and chaos, with gunshots and mace in the air, no one can say for certain what exactly transpired.”

The sufficiency of the evidence standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires an appellate court to determine whether “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Hobley, 98-2460, p. 33 (La.12/15/99); 752 So.2d 771, 790. A trier of fact is required to make credibility determinations “and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impose on the fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Casey, 99-23, [p. 14 (La.1/26/00), 775 So.2d 1022, 1034.]

State v. Wommack, 00-137, p. 5 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62.

| ;iThe defendant was convicted of second degree murder, which is defined as “the killing of a human being ... [w]hen the offender has the specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1).

In the present case, the jury was presented with several witnesses who testified that the defendant was the person who struck Mr. Ravare with a baseball bat. Carla Jones, the victim’s girlfriend, testified that she witnessed the defendant strike Mr. Ravare several times with a baseball bat. She testified that the area where this attack happened was well lit.

Derrick Stevenson, one of the lounge’s patrons, testified that he was approximately seven feet away from the corner of the building when he saw the defendant strike Mr. Ravare six or seven times with a baseball bat.

Byron Augustine, a bouncer at the lounge, testified he saw the defendant walk “out [of] the alley with a bat and [swing] the bat and hit Javondre once in the head and Javondre fell to his knees and laid his head against the club.” Mr. Augustine testified that he called his brother, another bouncer at the lounge, for help and “by the time we got to Javondre[,] Kendrick had hit him two more times[.]” Mr. Augustine testified that he knew the defendant by name because he had seen him in the club before.

Moesha Berry, another patron at the lounge, testified that, before the lounge closed, the defendant was involved in an altercation with two other people inside the lounge. Ms. Berry testified that, after the lounge closed, she saw the defendant |4outside the lounge and told him to go home. She testified that he responded that “he wasn’t leaving until he get [sic] them.” Ms. Berry testified that she was standing next to the defendant when he “passed us up and started striking Javon-dre with the bat.”

Catrisha Williams testified that she saw the defendant running with a bat hitting people. She testified that she was positioned evenly with the victim when she saw the defendant strike him over the head with a baseball bat.

The defendant asserts that the testimony in this case was so “incredible as to merit review and ultimate acquittal[.]” Specifically, the defendant argues:

In all the commotion and chaos, with gunshots and mace in the air, no one can say for certain what exactly transpired. Byron Augustine testified that after Kendrick hit Javondre with the baseball bat, he hit him a couple of more times as Javondre lay on the ground. He states that there were no other individuals around as he dragged Javondre to the front of the club. Carla Jones, Javon-dre’s girlfriend, testified others came and hit and kicked Javondre as he lay on the ground. Derrick Stevenson corroborated her story, yet Moesha Berry stated that Jones and Stevenson were not near Javondre as she was right next to him. Byron and Carla Jones testified that Kendrick hit Javondre twice with the bat after he fell to the ground. Ca-trisha Williams stated Kendrick hit him eight to nine times.

(Record citations omitted.) While there may be inconsistencies in the testimony regarding who was present when Mr. Ra-vare was hit, whether he was hit and stomped by persons other than the defendant, and the number of times that Mr. Ravare was struck with a bat, it cannot be said that the evidence presented at trial was insufficient to convict the defendant of second degree murder. Carla Jones, Derrick Stevenson, Byron Augustine, Moesha Berry, and Catrisha Williams testified that the defendant hit Mr. Ravare with a bat.

The Jackson standard, which the reviewing court uses in determining whether there is sufficient evidence to convict a defendant, does not permit this court “to second guess the rational credibility determinations of the fact finder at trial” or | ¡/‘consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict.” State v. Marshall, 04-3139, pp. 5-6 (La.11/29/06), 943 So.2d 362, 367, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). The jury chose to believe this testimony, and this court should not second-guess the credibility determinations made by that jury.

The defendant asserts that should this court find that Mr. Ravare was hit in the head, there is no evidence that the defendant delivered the fatal blow or that he had the specific intent to cause death or great bodily harm to Mr. Ravare. The defendant argues that “[i]n all the commotion, having been maced ... Kendrick Scott was merely swinging at any and every individual.”

Dr. Joel Carney, an expert in forensic pathology, performed an autopsy on Mr. Ravare on April 21, 2008. Dr. Carney testified that the cause of death was injuries to the head and brain which were the result of blunt force trauma consistent with being struck forcefully in the head with a bat. Dr. Carney could not determine how many blows to the head Mr. Ravare received.

This court has previously noted that the State is not required to prove that a defendant’s violent act was the sole cause of death, but only that it hastened or clearly contributed to the victim’s death. See State v. Obney, 99-592 (La.App. 3 Cir. 8/11/99), 746 So.2d 24, writ denied, 99-2667 (La.5/5/00), 760 So.2d 1190. The second circuit addressed a similar case stating:

This evidence, viewed in the light most favorable to the prosecution, indicates that defendant struck the victim several times in the head with a baseball bat, using sufficient force to cause brain injuries and resulting death. Although intent is a question of fact, it need not be proven as a fact and may be inferred from the circumstances. State v. Thomas, supra, 609 So.2d 1078 (La.App. 2d Cir.1992); State v. Kennington, 515 So.2d 521 (La.App. 1st Cir.1987). The severity of an attack in which a victim is bludgeoned to death with a baseball bat is sufficient to demonstrate the necessary ^specific intent to kill or inflict great bodily harm for second degree murder. See State v. Myers, 584 So.2d 242 (La.App. 5th Cir.1991), writ denied, 588 So.2d 105 (La.1991), and cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992).

State v. Guice, 26,440, pp. 6-7 (La.App. 2 Cir. 10/26/94), 645 So.2d 1193, 1197, writ denied, 94-3122 (La.6/30/95), 657 So.2d 1022.

Although Dr. Carney could not determine how many blows to the head Mr. Ravare received and witnesses testified that people other than the defendant were hitting and stomping Mr. Ravare, Dr. Carney testified that Mr. Ravare’s injuries were consistent with being hit with a bat, and the defendant was the only person witnesses saw hit Mr. Ravare in the head with a bat. Thus, based on the evidence presented, the jury could have found that the defendant’s action caused or contributed to Mr. Ravare’s death.

In addition, although the defendant may, as he claims, have been swinging the bat at anyone who passed by, specific intent to cause great bodily harm can be inferred from the defendant’s act of hitting Ravare in the head with a bat. Guice, 645 So.2d 1193.

Accordingly, this assignment is without merit.

Ineffective Representation

The defendant contends that his trial counsel was ineffective and but for his counsel’s errors, the outcome of the trial would have been different. The defendant further asserts that “[w]ith an estimate between seventy-five and two hundred people in the parking lot, there can be no reason why more witnesses were not secured, especially with all of the conflicting stories.” Lastly, the defendant argues that his counsel was ineffective because a motion to suppress the photographic identification 17made by Carla Jones “two weeks after the incident, under questionable conditions” was never filed.

In State v. Johnson, 95-711, pp. 6-7 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 770-71, writ denied, 96-0082 (La.3/29/96), 670 So.2d 1236, (citations omitted), this court explained:

The Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Louisiana Declaration of Rights guarantee a criminal defendant reasonably effective assistance of counsel. A strong presumption exists that the conduct of counsel falls within the wide range of responsible professional representation. The constitutional requirement of effective assistance of counsel does not guarantee errorless representation. Consequently, the defendant bears the burden of proving that his attorney failed to meet the requisite level of minimal competency which is normally required.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the test to determine whether the performance of a criminal defendant’s counsel was deficient: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors wei’e so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
Thus, the defendant must make both showings before the conclusion will be reached that his conviction was a result of a breakdown in the adversarial process rendering the conviction unreliable. Accordingly, if either is not met, then the claim of ineffective assistance of counsel will be disposed of.
Since the constitutional guarantee does not require an attorney to take unnecessary actions, a criminal defendant who alleges that his attorney’s performance was deficient based on his failure to perform specific acts must demonstrate that specific prejudice resulted from this failure.

|sThe defendant has failed to set forth the names of witnesses defense counsel should have called upon to testify at trial and the facts to which they would testify. Thus, the defendant has failed to prove “specific prejudice resulted” from any failure to call additional witnesses at trial. Id. at 771; See also, State v. Kinsey, 42,935 (La.App. 2 Cir. 2/13/08), 976 So.2d 315.

Further, in regard to whether the defendant’s trial counsel was ineffective for his failure to file a motion to suppress Carla Jones’s identification, the defendant asserts only that the identification was made “two weeks after the incident, under questionable conditions.” Here, the defendant bears the burden of proving he was prejudiced by an inadmissible out-of-court identification, in that, the identification was suggestive and unreliable. See State v. Harris, 01-1908 (La.App. 4 Cir. 4/3/02), 815 So.2d 402, writ denied, 02-1500 (La.12/13/02), 831 So.2d 982. The defendant does not cite any evidence, other than the length of time, that the identification was suggestive. Thus, the defendant has not carried his burden of proving he was prejudiced by an inadmissible out-of-court identification. See Harris, 815 So.2d 402.

In addition, the defendant was also not prejudiced by his defense counsel’s | gfailure to file a motion to suppress Ms. Jones’s identification, as several other witnesses testified that the defendant was the person who struck Mr. Ravare with a bat.

Accordingly, this assignment of error is without merit.

DECREE

For the reasons assigned, the defendant’s second degree murder conviction and sentence is affirmed.

AFFIRMED.

      . Generally, the defendant would be precluded from asserting errors regarding the admissibility of the photo line-up because his counsel did not file a motion to suppress or object to the evidence at trial; however, since the defendant contends that his trial counsel’s failure to preserve the question of the admissibility of the photo identification constitutes ineffective assistance of counsel, it is proper to consider the admissibility of the identification. State v. Johnson, 95-711 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, writ denied, 96-0082 (La.3/29/96), 670 So.2d 1236.

      . In determining whether there was a substantial likelihood of misidentification, we consider the factors as delineated by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972):(1) the witness’ opportunity to view the criminal when the crime was committed; (2) the degree of attention by the witness; (3) the accuracy of the prior description of the criminal given by the witness; (4) the level of certainty evidenced by the witness at the confrontation; and (5) the amount of time between the offense and the confrontation. Furthermore, this court has held that '‘[ajgainst these factors is to be weighed the corrupting effect of the suggestive identification itself.” Johnson, 664 So.2d at 770.