author: KEATY, Judge.

text:
    Bradley BROUSSARD v. GULFPORT ENERGY CORPORATION, et al.
    18-838
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Randall Kurt Theunissen, S. Brian Perry, Allen & Gooch, Post Office Box 81129, Lafayette, Louisiana 70598-1129, (337) 291-1000, Counsel for Defendants/Appellees: Wet Tech Lighting, Inc., Wet Tech Energy, Inc.
    Robert A. Mahtook, Jr., Mahtook & LaFleur, LLC, Post Office Box 3089, Lafayette, Louisiana 70502-3089, (337) 266-2189, Counsel for Defendant/Appellee: AFX Petrologix, LLC
    Leo Raymond McAloon, III, Gieger, LaBorde & Laperouse, LLC, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, Louisiana 70139, (504) 561-0400, Counsel for Defendant/Appellee: Shamrock Management, LLC
    Marc D. Moroux, Juneau David, APLC, Post Office Drawer 51268, Lafayette, Louisiana 70505-1268, (337) 261-1408, Counsel for Defendant/Appellee: Gulfport Energy Corporation
    Thomas M. Flanagan, Sean Brady, Andy Dupre, Anders F. Holmgren, Flanagan Partners LLP, 201 St. Charles Avenue, Suite 2405, New Orleans, Louisiana 70170, (504) 569-0235 Counsel for Plaintiff/Appellant: Bradley Broussard
    J. Kyle Findley, Kala Sellers, Adam Lewis, Arnold & Itkin, LLP, 6009 Memorial Drive, Houston, Texas 77007, (713) 222-3800, Counsel for Plaintiff/Appellant: Bradley Broussard
    F. Douglas Ortego, LeBas Law Offices, 201 Rue Iberville, Suite 100, Lafayette, Louisiana 70508, (337) 236-5500, Counsel for Intervenor: American Interstate Insurance Company
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff/Appellant, Bradley Broussard, appeals the trial court's grant of summary judgment in favor of Defendant/Appellee, Wet Tech Lighting, Inc. For the following reasons, the trial court's judgment is reversed.

FACTS AND PROCEDURAL HISTORY

This personal injury matter stems from injuries sustained by Broussard on January 21, 2015, while working in the course and scope of his employment with AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole when it broke, causing him to fall into the water below and sustain injuries. As a result, Broussard filed an Original Petition for Damages on May 6, 2015, against Gulfport Energy Corporation as the owner and/or operator of the platform based upon negligence and premises liability. Broussard's workers' compensation insurer, American Interstate Insurance Company, filed a Petition of Intervention. On April 26, 2016, Broussard filed his First Amended Petition for Damages, naming Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C., as additional Defendants. In his amended petition, Broussard alleged that Wet Tech Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly inspect and maintain the navigational light and pole.

On April 11, 2018, Wet Tech Lighting filed a motion for summary judgment, alleging that it owed no duty to Broussard because the contract governing the work at issue was executed between Gulfport and Wet Tech Energy, a separate and different entity from Wet Tech Lighting. Broussard filed an opposition memorandum and, alternatively, a motion to continue the summary judgment hearing. Following a hearing on May 14, 2018, the trial court denied Broussard's motion to continue and granted Wet Tech Lighting's motion for summary judgment. The trial court's written judgment was signed on May 24, 2018, which Broussard now appeals.

On appeal, Broussard asserts the following assignments of error:

A. Given the absence of critical discovery, the district court abused its discretion in refusing to continue the summary judgment hearing.
B. The district court erred in refusing to continue the summary judgment hearing where the plaintiff received less than the 30-day notice required by article 966(C)(1)(b) of the Code of Civil Procedure.

STANDARD OF REVIEW

The standard of review utilized by an appellate court when reviewing a trial court's grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria enunciated in La.Code Civ.P. art. 966(A)(3) provides that "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." "A fact is 'material' when its existence or nonexistence may be essential to [a] plaintiff's cause of action under the applicable theory of recovery." Smith v. Our Lady of the Lake Hosp., Inc ., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Additionally, a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Id.

Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover's burden of proof on summary judgments as follows:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

DISCUSSION

In his second assignment of error, Broussard contends that the trial court erred in refusing to continue the summary judgment hearing because he received less than thirty-days' notice in violation of La.Code Civ.P. art. 966(C)(1)(b). According to Broussard, this article ensures that parties are given at least thirty-days' notice of the setting of a hearing on a motion for summary judgment. He asserts that this mandatory pre-hearing notice was not afforded to him.

In opposition, Wet Tech Lighting contends that the article at issue states that the time limits must be followed unless otherwise agreed to by all of the parties and the court. It points to Broussard's handling of the case, including the filing of an opposition addressing the merits and appearing at the hearing to argue his position. According to Wet Tech Lighting, Broussard's foregoing actions reveal that no prejudice occurred and that he waived any objection he may have had regarding the timing of the hearing.

Notice of a hearing on a motion for summary judgment is discussed in La.Code Civ.P. art. 966, as follows:

C. (1) Unless otherwise agreed to by all of the parties and the court:
....
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.

On review, the record reveals that April 16, 2018 is when Broussard's counsel received notice of the hearing scheduled for May 14, 2018. Thus, receipt of the notice was less than thirty days in violation of La.Code Civ.P. art. 966(C)(1)(b). At the hearing and in its memoranda filed in the trial court proceeding, Wet Tech Lighting argued that Broussard waived his right to the thirty-day notice requirement because he filed an opposition memorandum. Wet Tech Lighting also pointed to the language in La.Code Civ.P. art. 966(C)(1) wherein an exception to the thirty-day notice requirement exists when otherwise "agreed to by all of the parties and the court[.]"

In this case, the record shows that Broussard never agreed to a waiver of the thirty-day notice requirement. Rather, in his opposition memorandum, he objected and asserted that the hearing "fail[ed] to comply with the required notice under Art. 966(C)(1)(b)" and that he "was not provided the minimum amount of notice, 30 days, as required." Broussard argued that the "current hearing should be continued." At the hearing on the motion for summary judgment, Broussard advised the trial court that he sought a continuance because of Wet Tech Lighting's failure to provide the requisite thirty-days' notice.

We recognize that La.Code Civ.P. art. 966(C)(1)(b) requires that notice "shall" be provided thirty days prior to the hearing. In Lewis v. Old Republic Insurance Co ., 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, this court explained the meaning of "shall" under La.Code Civ.P. art. 966(B), the provision governing the procedure for filing, opposing, and replying to a motion for summary judgment. This court in Lewis , 226 So.3d at 559, held:

As amended, Article 966(B) allows a trial court to extend the deadline with the agreement of all parties. This condition clearly was not fulfilled; Relator objected to the late filing of the opposition. The trial court, therefore, had no discretion to allow this late filing. The refusal of the trial court to entertain Respondents' late filings was mandated by La.Code Civ.P. art. 966.

Similar to Lewis , there was no agreement between Broussard and Wet Tech Lighting to change the thirty-day notice requirement provided in La.Code Civ.P. art. 966(C)(1)(b). This is evident based upon Broussard's repeated objections. The trial court, therefore, had no discretion to allow the summary judgment hearing to occur on May 14, 2018. Accordingly, this assignment of error has merit, and the summary judgment is reversed. In light of our holding, we decline to address Broussard's first assignment of error.

DECREE

For the above reasons, the trial court's judgment granting the motion for summary judgment in favor of Defendant/Appellee, Wet Tech Lighting, Inc., is reversed. All costs associated with this appeal are assessed to Defendant/Appellee, Wet Tech Lighting, Inc.

REVERSED.


source: Caselaw Access Project

author: PERRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Antonio Merquis HARRIS
    18-800
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, Counsel for Defendant/Appellant: Antonio Merquis Harris
    Phillip Terrell, Jr., District Attorney, John T. Giordano, Assistant District Attorney, Post Office Box 7358, Alexandria, Louisiana 71306-7358, (318) 473-6650, Counsel for Appellee: State of Louisiana
    Antonio Merquis Harris, In Proper Person, Louisiana State Prison, Camp C-Wolf 1, Angola, Louisiana 70712, Defendant
    Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Defendant, Antonio Merquis Harris ("Defendant"), appeals his conviction for armed robbery, a violation of La.R.S. 14:64 ; possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1 ; attempted second degree murder, two counts, violations of La.R.S. 14:27 and 14:30.1 ; intimidating a witness, a violation of La.R.S. 14:129.1 ; and possession of a stolen firearm, a violation of La.R.S. 14:69.1. With the exception of Defendant's conviction for possession of a stolen firearm, which we reverse, we affirm Defendant's other convictions, amend one of Defendant's sentences, and remand this matter with instructions.

FACTS

On July 6, 2015, at 5:00 a.m., Andrew Davis ("Davis"), a Frito-Lay route salesman, stopped at the Save More convenience store in Alexandria, Louisiana. After he loaded empty boxes in the back of his truck, an individual wearing a sweatshirt with a hood approached him. The individual pointed a handgun at Davis and demanded his workbag that contained a check made out to Frito-Lay, cell phones, and a scanner. Also, the individual demanded Davis's wallet and telephone. When he threw his phone to the hooded individual, Davis ran into the convenience store and called the police. Later, Davis would identify Defendant in court as the individual who robbed him.

After speaking with police, Davis returned to work. Between 7:30 a.m. to 8:00 a.m., Davis and his boss drove his boss's vehicle to the area of the robbery to look for Davis's workbag should it have been discarded. As they drove about the area, they saw a few guys staring at them; some were standing on the street and others were standing under a nearby carport. Suddenly, Davis and his boss were fired upon; three bullets struck the passenger door and one struck the outside, passenger mirror. At that point, Davis and his boss fled the area, drove to Damico's Bingo Hall, and called the police.

In addition to Davis, several witnesses, whose testimony will be elaborated upon later, testified as to Defendant's identity, including Jeraldine Hampton ("Hampton"), an eyewitness to the shooting; and Delric Carpenter ("Carpenter"), an area resident. The jury was also presented with forensic evidence that matched a bullet from the truck with a handgun discarded at Defendant's residence near Davis's cellphone and product scanner. They also heard jailhouse telephone evidence where Defendant admitted the police recovered "my gun, my cell phone, and a check out my safe." The jury also viewed the handgun recovered from the top of Defendant's carport and the check made out to Frito-Lay that was found in Defendant's home safe. Fingerprint evidence was also presented that demonstrated Defendant was a prior- convicted felon at the time of these offenses.

After a multi-day jury trial, Defendant was convicted on all charges enumerated above that were brought against him in the bill of information. After receiving a presentence investigative report, the trial court sentenced Defendant to forty years at hard labor for armed robbery; ten years at hard labor for possession of a firearm by a convicted felon; twenty years at hard labor for each conviction for attempted second degree murder; ten years at hard labor for intimidating a witness; and one year at hard labor for illegal possession of a stolen firearm. The court imposed all the sentences concurrently.

Defendant timely appealed, presenting four assignments of error argued by court-appointed counsel, as well as one pro se assignment of error. They are as follows: (1) the jury erred in returning a verdict of guilty of illegal possession of a stolen firearm; (2) the convictions were based on circumstantial evidence that failed to establish Defendant's identity beyond a reasonable doubt, and the jury was unduly influenced by an invalid charge, namely the illegal possession of a stolen firearm; (3) the trial court erred in denying Defendant's challenges for cause regarding prospective jurors Katrina McCain ("McCain") and John Parker ("Parker"), and jurors James Alwell ("Alwell") and Kenneth Taylor ("Taylor"); (4) the trial court erred in granting the State's challenges for cause regarding prospective jurors Ben Rosier ("Rosier") and Jonathan Richards ("Richards"); and (5) the trial court erred in allowing Defendant to proceed to trial in leg shackles.

ERRORS PATENT

In compliance with La.Code Crim.P. art. 920, we review all criminal appeals for errors patent on the face of the record. See State v. Oliveaux , 312 So.2d 337 (La.1975). After carefully reviewing the record, we find one error patent, as well as court minutes of sentencing that require correction.

We first note the trial court sentenced Defendant to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence for intimidating a witness. Louisiana Revised Statutes 14:129.1, the applicable sentencing statute, does not authorize a restriction of benefits. Accordingly, Defendant's sentence is illegally excessive. Therefore, we amend Defendant's sentence for intimidating a witness to delete the denial of benefits and remand to the trial court with instructions to amend the court minutes accordingly.

Finally, our review of the sentencing transcript shows the trial court imposed a $ 1,000.00 fine as required by La.R.S. 14:95.1(B) for Defendant's conviction for possession of a firearm by a convicted felon. Notwithstanding, the court minutes fail to reflect the imposition of this fine. "It is well established that where there is a conflict between the minutes and the transcript, the transcript shall prevail." State v. Edwards , 626 So.2d 501, 503 (La.App. 3 Cir. 1993), writ denied , 93-3125 (La. 2/3/95), 649 So.2d 400. Therefore, we direct the trial court to correct the sentencing minutes to include the $ 1,000.00 fine that was imposed for Defendant's conviction of possession of a firearm by a convicted felon.

SUFFICIENCY OF THE EVIDENCE

There is a common thread between the first two assignments of error, namely, the sufficiency of the evidence regarding Defendant's conviction for the illegal possession of a stolen firearm and the sufficiency of the evidence as to all of Defendant's convictions. In the first assignment of error, Defendant contends the State failed to present sufficient evidence to support his conviction for the illegal possession of a stolen firearm. In the second assignment of error, Defendant contends the evidence was insufficient to prove any of the charged offenses and particularly asserts that the State failed to establish his identity beyond a reasonable doubt. Thus, we will address those two assignments of error first.

In State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, we articulated the well-established analysis for such claims:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Illegal Possession of a Stolen Firearm

Louisiana Revised Statutes 14:69.1(A)(1) provides: "Illegal possession of stolen firearms is the intentional possessing, procuring, receiving, or concealing of a firearm which has been the subject of any form of misappropriation." In State v. Johnson , 09-862, p. 9 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1270, this court said, "Based on [ La.R.S. 14:69.1 ], the State had to prove that the defendant intentionally possessed a firearm, that the firearm was the subject of robbery or theft, and that he knew or should have known the firearm was the subject of a robbery or theft."

Our careful review of the record shows a paucity of evidence regarding this offense. Although the State determined that the handgun was stolen from James Smith and that robbery was not reported, the evidence is void of any proof that Defendant was involved with the theft or that he knew or should have known the handgun was stolen. Therefore, we reverse Defendant's conviction for illegal possession of a stolen firearm and vacate the sentence imposed for that conviction.

Identity Evidence

In his pro se assignment of error, Defendant first contends the State failed to establish his identity beyond a reasonable doubt. The jurisprudence on this area of the law is well established:

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

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

On the subject of the armed robbery conviction, Davis, the Frito-Lay deliveryman, identified Defendant as the armed robber. Davis described the events of the robbery, including that Defendant's face was not covered. He also identified Defendant in open court. The evidence further showed that a check made out to Frito-Lay taken during the robbery was found in Defendant's home safe.

Regarding the attempted murder convictions, Davis testified that when he and his supervisor drove through the neighborhood near the crime scene to see if they could find Davis's stolen workbag, someone shot at them, striking the truck three times. Although Davis did not see the shooter, area resident Carpenter testified that Defendant admitted to him both the shooting and the earlier robbery. Also, the jury heard a prior recorded statement by another area resident, Hampton, that she had seen Defendant firing a handgun, although she was not sure what his target was. Further, a bullet recovered from the truck matched a handgun that was discarded at Defendant's residence near Davis's cellphone and product scanner. Also, in a telephone call from the jail, Defendant admitted the police had recovered "my gun, my cell phone, and a check out my safe."

Concerning Defendant's conviction for possession of a firearm by a convicted felon, not only does some of the evidence already mentioned put a weapon in Defendant's hand, fingerprint evidence demonstrated that at the time of the offenses, he was a prior-convicted felon.

The remaining conviction, intimidating a witness, was supported by testimony that Defendant contacted associates via the jail phone line, telling them to harm or frighten witnesses in the case. In his testimony, even though Defendant denied directly threatening Hampton, he admitted he made various threatening statements, but claimed he was merely angry.

In light of Hughes , we find, viewing the evidence in a light most favorable to the prosecution, that the State proved the elements of each crime charged, including Defendant's identity, beyond a reasonable doubt. As discussed above, the record is replete with evidence, including direct evidence, that Defendant was the person who committed these crimes. Therefore, we find no merit to this assignment of error.

However, before leaving this discussion, we address Defendant's further assertion that his conviction for possession of a stolen weapon, now reversed and vacated, unduly influenced the jury. In all aspects, save our reversal of Defendant's conviction for possession of a stolen weapon, the State convicted Defendant for each of the other crimes with evidence, direct and circumstantial, that proved beyond a reasonable doubt that Defendant perpetrated those crimes. Therefore, we find no merit to Defendant's contention that his conviction for one of the crimes for which he was charged tainted the jury's convictions on all the remaining crimes. This well-developed record shows just the opposite.

Defendant's pro se assignment of error lacks merit.

CHALLENGES FOR CAUSE

Defendant makes two arguments, attacking the trial court's rulings on the various challenges for cause. Defendant first contends the trial court erred when it denied his challenges for cause regarding prospective jurors McCain and Parker and jurors Taylor and Alwell. Defendant next contends the trial court erred when it granted the State's challenges for cause regarding prospective jurors Rosier and Richards. After referencing the general jurisprudence on challenges for cause, we will separately address Defendant's two arguments.

In State v. Juniors , 03-2425, pp. 7-8 (La. 6/29/05), 915 So.2d 291, 304-05, our supreme court stated:

Louisiana Constitution article I, § 17 guarantees to a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.... When a defendant uses all twelve of his peremptory challenges, an erroneous ruling of a trial court on a challenge for cause that results in depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. See State v. Cross , 93-1189, p. 6 (La. 6/30/95), 658 So.2d 683, 686 ; State v. Bourque , 622 So.2d 198, 225 (La. 1993), overruled on other grounds by State v. Comeaux , 93-2729 (La. 7/1/97), 699 So.2d 16. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges. State v. Robertson , 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280 ; State v. Ross , 623 So.2d 643, 644 (La. 1993). Therefore, to establish reversible error warranting reversal of a conviction and sentence, defendant need only demonstrate (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. Cross , 93-1189 at 6, 658 So.2d at 686 ; Bourque , 622 So.2d at 225.

Moreover, in State v. Dotson , 16-473, p. 17 (La. 10/18/17), 234 So.3d 34, 45-46, our supreme court stated:

Clearly, La. C.Cr.P. art. 797(2) does not require that a prospective juror state with absolute certainty that he/she cannot be impartial in order to be removed for cause. However, in the absence of such a statement, the trial court's denial of a challenge for cause will not be reversed if, on review of the entire voir dire examination, the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. [State v.] Passman , 345 So.2d [874] at 880 [La. 1977) ]. Reversal is appropriate only where it appears, upon review of the voir dire examination as a whole, that the trial judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. Id. ; see [State v.] Dorsey , 10-0216 at 28, [ (La. 1977) ] 74 So.3d at [603] 625 ; State v. Lee , 93-2810 (La. 5/23/94), 637 So.2d 102, 108. This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Lee , 93-2810 at 9, 637 So.2d at 108. "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id. As noted in State v. Miller , 99-0192 (La. 9/6/00), 776 So.2d 396, because of the "complicated and oftentimes daunting" task faced by a trial court in deciding "challenges for cause of prospective jurors who give equivocal ... responses during voir dire ," "an appellate court should accord great deference to the [trial] court's ruling on a challenge for cause, which is necessarily based, in part, on the court's personal observations during questioning." Id. , 99-0192 at 14, 776 So.2d at 405-06.

Trial Court's Denial of Defendant's Challenges for Cause

Prospective juror, McCain : Defendant contends the trial court erred when it denied his cause challenge as to McCain. His contention is twofold: first, McCain allegedly said if Defendant did not testify, she would likely vote guilty; second, she has relatives involved in law enforcement.

Defendant's argument to the trial court and before us is that McCain said Defendant would be guilty if he would not testify. Our review of the record shows this question first arose when the State asked the prospective jurors en masse if they would be biased against Defendant if he chose not to testify. Our review of the record indicates none of the jury venire responded positively to that question. Thus, to this extent we find no support for Defendant's first contention.

Later, defense counsel specifically asked McCain about Defendant's right not to testify. She responded, "I just feel like why wouldn't he.... Like if, he's not, if he feels like he's not guilty why wouldn't he go against it." Defendant asked nothing further. Nonetheless, in argument to the trial court, defense counsel, extrapolating from McCain's limited statement, urged the trial court to grant his cause challenge because McCain "[would] hold that against him if he didn't testify."

When this cause challenge was made, the State interjected:

All he asked her was a simple question, uh, and she indicated that she may have some issue with that. When I questioned her and the rest of the panel, I went over that thoroughly. None of them had any issue if he did not testify. Matter of fact, ... I had to go over that over and over again. They were all satisfied with that. She did not say that to [defense counsel]. [Defense counsel] spent about five seconds with her before this guy over here who had the situation with his daughter in Bossier Parish began to speak, and then [defense counsel] diverted his attention to him, never went back to her to follow up on that but I did, I had earlier.

In its ruling on this cause challenge, the trial court recognized McCain's hesitancy. Nevertheless, the trial court stated, "[I]t was not the impression of the Court ... she would hold it against [Defendant], if he did not testify. [The State] is correct that ... she indicated ... during his voir dire that she understoood, that ... he did not have to testify."

Dotson admonishes trial courts to avoid seizing upon snippets of testimony in the evaluation of cause challenges. Dotson, 234 So.3d 34. Rather, the court is directed to examine the entire voir dire examination. In the present case, the trial court performed its function as Dotson admonished-it reviewed the voir dire examination as a whole.

As a reviewing court, Dotson cautions us to give great deference to the trial court's determination on challenges for cause because that resolution is based upon the trial court's personal observation during the entire voir dire examination. Abiding by that instruction in the present case, we cannot say the trial court exercised that discretion in an arbitrary or unreasonable manner to prejudice Defendant. Thus, we find no support for Defendant's assertion.

Defendant next draws our attention to another basis for his cause challenge, namely, McCain's association with law enforcement. During voir dire, McCain told the court that her husband and father-in-law are employees of the corrections system; her husband is a counselor at the Pollock Prison, and her father-in-law is a warden at the Cottonport Prison.

This court has long recognized that relationships to members of law enforcement do not, by themselves, support challenges for cause. State v. Williams , 447 So.2d 495 (La.App. 3 Cir.), writ denied , 450 So.2d 969 (La.1984). The record shows McCain was forthright about her familial relationship with members of law enforcement. Despite that, McCain unambiguously stated when questioned by both Defendant and the State that these relationships in no way would influence her, and she would be fair and impartial if selected. After carefully considering both aspects of Defendant's argument, we find the trial court did not err when it refused Defendant's cause challenge to McCain.

Prospective juror, Parker : Defendant next contends the trial court erred when it denied his challenge for cause as to Parker. He argues that Parker, a retired Alexandria Police Department employee and part-time Alexandria crime prevention officer, should have been successfully challenged for cause. Defendant's argument is threefold: (1) Parker knew every police officer on the State's witness list; (2) he is employed as a crime prevention officer; and (3) his son is a Louisiana State Trooper, his nephew is a Rapides Parish jailer, his brother is a narcotics' officer with the Rapides Parish Sheriff's Office, and his father was a police officer.

Defendant's challenge for cause involves two lines of analysis, one that involves Parker as an actively employed law enforcement officer and another that involves Parker as one who has familial connections to law enforcement. We will address these separately.

In State v. Ballard , 98-2198 (La. 10/19/99), 747 So.2d 1077, 1079-80, the Louisiana supreme court stated:

Law enforcement officers are sworn to uphold the laws of the state, which laws include the provision of a fair trial to each and every defendant. If a law enforcement officer testifies under oath during voir dire that he can be a fair and impartial juror, the trial judge has the discretion to determine whether that officer is speaking the truth. The disqualification of all law enforcement officers from service on a jury disregards whether or not the judge, whose rulings on challenges for cause are given great deference in all other instances, accepts the officer as a fair and impartial juror. We find that such a disqualification amounts to an irrebuttable presumption of untrustworthiness in law enforcement officers and is an affront to police officers in this state. When this court in [ State v. ] Simmons , [390 So.2d 1317 (La. 1980) ] held: "[t]he guarantee of an impartial trial in Article 1, Section 16, of the Louisiana Constitution of 1974 is offended by the presence on a jury of a badge-wearing law enforcement officer," id. at 1318, it failed to explain this connection, all the while implying that wearing a badge is somehow a mark of intrinsic bias, offending those who have been awarded a badge as a police officer in this state.

The record shows Parker was questioned extensively on his law enforcement employment. Parker made it abundantly clear that despite his employment, he would be fair and impartial and would not give law enforcement testimony any greater weight. Even after Defendant further pressed Parker on the question, he reiterated he would "give fair consideration to both sides."

As regards Parker's familial relationships with law enforcement officers, we recognized earlier in this opinion that this court has long recognized that relationships to members of law enforcement do not, by themselves, support challenges for cause. Williams , 447 So.2d 495.

When we review Parker's forthright testimony during voir dire, we find no basis to justify a cause challenge as to him either as a law enforcement officer or his familial relationships with law enforcement officers. Therefore, we find no merit to Defendant's contention that the trial court erred in failing to dismiss Parker for cause.

Juror, Taylor : Defendant contends that the trial court erred when it failed to grant his challenge for cause as it related to Taylor. Defendant argued that Taylor, the director of a religious charitable organization, would be unable to fully concentrate on the trial because he had a paid, non-refundable three-night stay in Dallas that began the following Sunday night.

As a matter of background, Defendant's jury was selected on June 5-6, 2018, a Tuesday and Wednesday. On June 7, 2018, a Thursday, the jury began hearing evidence. On June 8, 2018, a Friday, the jury found Defendant guilty as charged on all counts.

Defendant challenged Taylor for cause on the speculative ground that he would be unable to concentrate on the trial. Notwithstanding, our review of the record shows no instance where Taylor expressed that he would not be able to concentrate on the trial; rather, he simply brought his future schedule to the trial court's attention.

Taylor was a seasoned juror, having served on multiple juries, two involving criminal trials. Defendant has made no showing that Taylor would not have been impartial or that he was prejudiced in any way by Taylor's inclusion as a juror. Under these facts, we find the trial court did not abuse its discretion in an arbitrary or unreasonable manner, resulting in prejudice to the accused. Therefore, we find no merit to Defendant's argument that the trial court should have excused Taylor for cause.

Juror, Alwell: The thrust of Defendant's argument is that Alwell's father was a chip salesman, as was the victim of the crime for which Defendant was on trial, and his father was robbed. He contends that when Defendant explored Alwell's familial history, Alwell did not know if he could find Defendant not guilty because of this.

"[T]he fact that a juror may have painful memories associated with the subject of a criminal trial is not listed as a basis for a challenge for cause under La.C.Cr.P. art. 797." Dotson , 234 So.3d at 41, quoting State v. Magee , 13-1018, p. 12 (La.App. 5 Cir. 9/24/14), 150 So.3d 446, 454, writ denied , 14-2209 (La. 10/2/15), 178 So.3d 581. A prospective juror's relationship to a person who was the victim of crime likewise does not disqualify a prospective juror from serving. Id. "The law does not require that a jury be composed of individuals who have not personally been a crime victim or who do not have close friends or relatives who have been crime victims. It requires that jurors be fair and unbiased." Id. at 42.

In the present case, the record shows Alwell let it be known that his father's encounter as the victim of a robbery was on his mind. He also said that it is possible that it would be difficult for him to sit as a juror on the present case. Finally, however, Alwell concluded, "Now, I'm not gonna say it will but it's possible."

[T]he purpose of allowing challenges for cause is to secure a fair and impartial trial. The key to securing this right is to ascertain whether there is anything in the disclosed relationship ... that would influence the juror's judgment or that would persuade him or her to decide the case on any basis other than fairness and the evidence presented in court.

Juniors , 915 So.2d at 307 (citations omitted).

When presented with this challenge for cause, the trial court concluded the stated ground was insufficient to rise to the level that justified a challenge for cause. We agree. Although Alwell expressed a possibility that his familial history would make it difficult for him to sit as a juror, the burden was on Defendant to follow-up with questions to reasonably show that Alwell could not have been fair and that he could not have rendered an impartial verdict according to the law and the evidence. This he did not do.

For the foregoing reasons, we find Defendant's assignment of error, urging this court to reverse the trial court's multiple denials of the challenges for cause, lacks merit.

Trial Court's Grant of State's Challenges for Cause

Defendant next contends the trial court erred when it granted the State's cause challenges as it related to prospective jurors Rosier and Richards.

Louisiana Code of Criminal Procedure Article 800(B) provides, "The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law."

Based upon La.Code Crim.P. art. 800(B), a defendant does not have grounds to complain about the granting of the State's challenge for cause, unless the effect of the ruling is to allow the State to exercise more peremptory challenges than the law allows. See State v. Morgan , 17-588 (La.App. 4 Cir. 5/16/18), 244 So.3d 568, writ denied , 18-987 (La. 12/17/18), 258 So.3d 603 ; State v. Harris , 17-303 (La.App. 5 Cir. 12/20/17), 235 So.3d 1354, writ denied , 18-160 (La. 6/15/18), 257 So.3d 675 ; State v. Nellum, 13-360 (La.App. 4 Cir. 2/12/14), 136 So.3d 120, writ denied , 14-516 (La. 10/24/14), 151 So.3d 598. Here, our meticulous review of the record shows the State used only ten peremptory exceptions. Accordingly, Defendant has no ground for complaint. Therefore, Defendant's assignment of error lacks merit.

LEG RESTRAINTS

Defendant contends the trial court erred in allowing him to proceed to trial in leg restraints. Defendant presents two arguments: (1) Defendant's leg restraints were not called for because the record is void of evidence that he posed a threat, was disrespectful, or disruptive; and (2) the leg restraints denied him a fair and impartial trial.

As to Defendant's argument that he was not a security risk and should not have been restrained, we have combed the record and find that this issue was not raised in the trial court. Thus, Defendant may not raise this issue for the first time on appeal. State v. Hypolite , 13-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687, writ denied , 14-1242 (La. 1/23/15), 159 So.3d 1056.

Defendant's argument, too, that the leg restraints denied him a fair and impartial trial is likewise without merit. Although the record does not have a description of the leg restraints, the trial court made two observations when it addressed Defendant's motion for a new trial. First, the trial court noted for the record that the leg restraints were under Defendant's clothes. Second, the trial court explained that Defendant did not limp when he approached and left the witness stand during trial.

The mere fact that a defendant is shackled or garbed in the presence of the jury does not alone constitute a basis for reversal. State v. Ellis , 487 So.2d 752 (La.App. 3 Cir.), writs denied , 492 So.2d 1216, 1217 (La.1986). Considering the trial court's first-hand observation of Defendant at trial, there is nothing in the record which shows the use of leg restraints prejudicially affected Defendant or warranted a reversal of his conviction.

Therefore, this assignment of error lacks merit.

DISPOSITION

For the foregoing reasons, we reverse Defendant's jury conviction for illegal possession of a stolen firearm and vacate the sentence imposed for that conviction. In all other respects, we affirm Defendant's convictions. We further amend Defendant's sentence for intimidating a witness to delete the denial of benefits and remand to the trial court with instruction to amend the court minutes accordingly. Lastly, we remand this case to the trial court to correct the sentencing minutes to include the $ 1,000.00 fine was imposed for Defendant's conviction of possession of a firearm by a convicted felon.

CONVICTION REVERSED, IN PART, AND THAT SENTENCE VACATED; OTHER CONVICTIONS AFFIRMED; SENTENCE AMENDED, IN PART; AND CASE REMANDED WITH INSTRUCTIONS.

      Defendant urges this assignment of error pro se.

      Although the State concedes that this conviction should be reversed for insufficient evidence, we have chosen to discuss this assignment of error to more fully address the second aspect of these assignments of error, the latter having been raised pro se.

      Defendant does not contest in his pro se brief that the crimes occurred.

      At trial, Hampton stated she did not remember the shooting incident. She testified that she had received multiple threats via telephone that sought to dissuade her from testifying. As a result, the State played part of her prior recorded statement so that she could identify her voice. The State then walked Hampton through a transcription of her recording to refresh her memory.

      The record shows Defendant used all his peremptory challenges.

      Defendant points out that the State failed to rehabilitate McCain. Unlike Defendant's assertion, McCain never unequivocally stated she would hold Defendant's failure to testify against him. McCain's response, conditional at best, neither required the State's rehabilitation nor relieved Defendant of his burden of demonstrating, through further questioning, that McCain lacked impartiality. Dotson , 234 So.3d 34 ; see also State v. Taylor , 99-1311, p. 8 (La. 1/17/01), 781 So.2d 1205, 1214 (holding that "[t]he party seeking to exclude the [prospective] juror has the burden to demonstrate, through questioning, that the [prospective] juror lacks impartiality.")

      In argument to this court, Defendant relies on State v. Mitchell , 475 So.2d 61 (La.App. 2 Cir. 1985) to support his position. Mitchell relied upon Simmons , 390 So.2d 1317. Ballard overruled Simmons . Ballard , 747 So.2d 1077.

      Compare State v. Aguillard , 14-0316 (La.App. 4 Cir. 3/4/15), 158 So.3d 976, writ granted, in part , and remanded , 15-589 (La. 2/26/16), 184 So.3d 1273, writ denied after remand , 15-589 (La. 10/15/18), 254 So.3d 685 (distinguishing Ballard and holding that employment in law enforcement would unduly influence the verdict when the officer in question was the commander of the investigative unit responsible for the prosecution before the court and the State's witness was the law enforcement officer's supervisor).


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Gerrell WASHINGTON
    19-38
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Paula C. Marx, Louisiana Appellate Project, Post Office Box 82389, Lafayette, Louisiana 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Gerrell Washington
    Hon. Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Emily Edwards Bertholl, Assistant District Attorney, Post Office Box 503, Marksville, Louisiana 71351, (318) 240-7123, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

On June 14, 2017, Defendant, Gerrell Washington, was charged by bill of information with cruelty to persons with infirmities, a violation of La.R.S. 14:93.3. By written motion filed on January 11, 2018, Defendant waived his right to a jury trial. On July 19, 2018, Defendant was tried by a bench trial on both the present charge (cruelty to persons with infirmities) and a charge filed in a separate docket number (second degree battery). The trial court found Defendant guilty of both charges. The trial court ordered a Pre-Sentence Investigation (PSI) report and set sentencing.

On September 17, 2018, the trial court sentenced Defendant on the cruelty to persons with infirmities conviction to ten years in the Department of Corrections, with all ten years to be served without benefit of parole, probation, or suspension of sentence. On the second degree battery conviction, the trial court imposed a sentence of eight years in the Department of Corrections, to run concurrently with the sentence imposed for cruelty to persons with infirmities. Defense counsel asserted an objection and subsequently filed a written Motion for Reconsideration, alleging the sentences imposed were excessive. The trial court set the Motion for Reconsideration for hearing on October 16, 2018. After hearing argument, the trial court denied the Motion for Reconsideration.

Defendant's Motion and Order for Appeal was granted on September 24, 2018. Now before the court is a brief filed by Defendant alleging one assignment of error as to the excessiveness of the sentence imposed for cruelty to a person with an infirmity. For the reasons that follow, we affirm Defendant's sentence.

FACTS

On May 1, 2017, Defendant, a forty-three-year-old inmate, was working at the Bunkie Senior Center as part of a work release program. The victim, Ruddio Rico, age sixty-eight at the time of the incident, worked with his wife as a volunteer at the center. At trial, the victim explained that earlier that day his wife told him Defendant "cussed" at her and threatened her when she told him not to pressure wash near the cracks of the windows. According to the manager of the Bunkie Senior Center, she saw the victim walk up to Defendant and tell Defendant to never call his wife names again. The victim testified that he also told Defendant that if he ever had a conflict with his wife again, he would send Defendant back to jail. When the victim turned around and walked back to his truck, Defendant followed and asked what the victim was going to do about it. The victim turned around to face Defendant, and Defendant hit the victim in the face. The victim fell backward, and Defendant began "stumping" the victim's hands and kicking the victim in the back. Defendant stopped beating the victim when the manager yelled at Defendant to go inside. The manager estimated the attack lasted about five minutes.

According to the manager, the victim was bleeding from his face, nose, eyes, and hand, leaving a pool of blood where he lay. The manager did not see any weapons on the victim and did not hear the victim make any threats to Defendant. When asked if the victim yelled during the attack, the manager replied, "No, I mean it just happened so fast, he just turned around and Gerrell hit him with his fist."

The victim described the beating as follows:

A. He hit me right here in the eye.
Q. And you've indicated just for the record, your right eye?
A. Right eye, it's a prosthetic eye right now. And then hit me on the nose and then I have a cut on here right here. And then I fell to the ground unconscious he put his hand ... or his foot over my left hand .... And he was smashing down on my hand with foot [sic] and he was kicking me in the back several times and he kicked me in the head several times.

The victim also testified that he was 99% unconscious after he was hit. The victim described the pain he felt as being worse than his wound in Vietnam. The victim was transported by ambulance to Bunkie General Hospital, where he was then transported by helicopter to Shreveport. When asked to describe the victim when she saw him at the hospital, the victim's wife stated, "He was real bad off, he was bleeding from the eye and his hand and then he was ... his eye was all bruised and it was horrible." The victim stayed at LSU Medical Center in Shreveport for about seven days.

As a result of Defendant's attack, the victim lost his right eye and some teeth. The victim continues to suffer from blurred vision in his left eye, memory loss, and headaches. As a result of injuries to his left hand, the victim underwent two surgeries and still suffers from pain in his hand. The doctor in Shreveport initially tried to save the victim's right eye but a few days later decided it was best to remove it. The victim did not have facial reconstruction surgery since it would have interfered with other problems. After counsel noted the victim was currently walking with a cane, counsel asked if the victim walked with a cane on the day of the incident. The victim responded:

A. No.
Q. Is your reason for walking with a cane a direct result of the beating?
A. No [sic] a direct result with the beating because I had tremendous back surgery which you cannot return for sure sure [sic] if that indicated some of the cause.

In his defense, Defendant presented the testimony of one officer regarding a voluntary statement he received from an eye-witness. The witness stated that he saw "a white male elderly man push Gerrell, Gerrell then punched him in the face, the police were then called." Additionally, the victim's wife testified that when she told her husband (the victim) about her run-in with Defendant, her husband said that it did not sound like Defendant. Defendant testified that on the day in question, he was having an issue with the victim's wife trying to supervise him. When Defendant discussed the issue with his real supervisor, the victim's wife got upset and left. Shortly thereafter, Defendant testified, the victim drove up, slammed his car door, walked up to Defendant, and pushed Defendant in the chest. The victim threatened to "plant" Defendant "in the ground" if he ever called his wife a "b-i-t-c-h" again. Defendant testified that the victim followed him and tried to grab his shirt. Defendant further testified that he automatically "went on defense" and hit the victim. Defendant denied jumping or "stumping" the victim.

Defendant testified that he was approved for the work release program because of his "outstanding disciplinary jacket." According to Defendant, he had "no violence in [his] jacket" in almost twenty years of incarceration. On cross-examination, Defendant testified that he participated in the sport of boxing while in prison.

After hearing the evidence presented, the trial court found Defendant guilty of both offenses, ruling as follows:

BY THE COURT:
I thank you for your presentations of evidence here today. And really in two separate charges and I will address them separately.
Second Degree Battery is defined by Louisiana Revised Statute 14:34.1, second degree battery is a battery when the offender intentionally inflicts serious bodily injury. The evidence presented here today it is abundantly clear that the State met it's [sic] burden of proof the defendant is guilty as charged of second degree battery. The victim Mr. Ruddi Rico sustained very severe injuries to his left eye and lost the left eye, has a prosthetic eye today, severe damage to his right vision. He has damage to his face, damage to his nose and lots of bleeding, lots of pain, loss of teeth and has memory problems all as a result of the and as a consequence of the beating that was inflicted upon him by Gerrell Washington on May 1st, 2017.
This court has not considered if a defense to the charge that anybody exercised any authority over anybody, the series of events are most regrettable that occurred that day. Regrettable as they may be the consequence and the results that occurred are clear violations of the criminal statute for which there has been no defense shown in this courtroom here today.
Accordingly I find the defendant guilty as charged of Second Degree Battery based upon the events and testimony of the victim, Ms. Sherry Guillory and Officer Lee who all testified about the events that occurred that day.
As far as the next charge Cruelty to Persons with Infirmities, that statute and I'm just going to read the words that apply to today's case and it says '[c]ruelty to persons with infirmities under 93.3 of the criminal code is the intentional mistreatment by any person whereby unjustifiable pain is caused to a person who is aged.
Aged is defined in Section C as a person or individual 60 years of age or older. It is without doubt that the victim of this crime was 68 years old on May 1st, 2017.
The State has proven each and every element of this offense beyond a reasonable doubt as to each element charged in this crime, in both crimes, accordingly I find the defendant guilty as charged to both crimes by evidence beyond a reasonable doubt.

ERRORS PATENT

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

ASSIGNMENT OF ERROR

Defendant asserts the maximum ten-year sentence is excessive for the cruelty to persons with infirmities offense because Defendant was not the victim's caretaker, and Defendant felt threatened by the victim's verbal confrontation. The penalty range for cruelty to persons with an infirmity is the following:

E. (1) Whoever commits the crime of cruelty to any person with an infirmity, adult with a disability, or person who is aged shall be fined not more than ten thousand dollars or imprisoned with or without hard labor for not more than ten years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence when the act of cruelty to persons with infirmities was intentional and malicious.

La.R.S. 14:93.3. Although the trial court did not impose a fine, the trial court imposed the maximum term of imprisonment and the maximum amount of time to be served without benefits.

In the same sentencing proceeding, the trial court sentenced Defendant for second degree battery to eight years in the Department of Corrections, to run concurrently with the sentence imposed for cruelty to persons with infirmities. Like the penalty for cruelty to a person with an infirmity, the trial court did not impose a fine for second degree battery but imposed the maximum term of imprisonment.

The analysis for an excessive-sentence claim is well-settled:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00) [765 So.2d 1067] ; 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261. "[M]aximum sentences 'are reserved for ... the most serious violations of the charged offense and for the worst kind of offender.' " State v. Cozzetto , 07-2031, p. 2 (La. 2/15/08), 974 So.2d 665, 666 (quoting State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982) ).

Sentencing Hearing

The victim's wife gave the following statement at sentencing:

What made that day any different than any other day because he took orders from (INAUDIBLE) along with all the others in the center, he mentioned he never had a problem. I prayed to God to give me strength to forgive him but I can't. My husband is a hundred per cent [sic] disabled vet and was trying to help the center get a new face lift. He destroyed my husband's life and our entire family. My husband loves to hunt and fish he took his sight, the use of his left hand, his memory loss, hearing and he broke a lot of his teeth. He has to have someone with just about all the things because it's hard for him to get around. He has to have someone with him all the time. I now pray that this court has ... take his life and sentence him to life without the possibility of parole and credit him for time served. If he doesn't get life please give him the maximum sentence without possibility of parole. This person is a repeat offender and if released he will end up killing someone due to his violence.

The trial court stated the following when imposing the sentence in the present case:

The Court considers the following sentencing guidelines under Article 894.1 of the Code of Criminal Procedure pertinent to these proceedings; to wit:
1. there is an undue risk that during the period of a suspended sentence or probation that the defendant may commit another crime;
2. the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; and, 3. a lesser sentence will deprecate the seriousness of the defendant's crime.
Additionally, the Court considers the following grounds provided in Code of Criminal Procedure Article No.: 894.1, relevant to the sentencing of this defendant, to-wit:
1. the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim;
2. the offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability or ill health;
3. the offense resulted in a significant permanent injury to the victim; and,
4. the offender used actual violence in the commission of the offense.
A pre-sentence investigation report was prepared by Probation and Parole Officer, Kristin Brouillette, and same has been filed of record in these proceedings. Gerrell Washington is classified as a fourth felony offender with a previous conviction for aggravated battery on 5/1/1995 in Terrebonne Parish, Louisiana (original charge was second degree battery). The defendant's record further bears a conviction for armed robbery on 4/1/1999 which also occurred in Terrebonne Parish, Louisiana. Gerrell Washington has a pre-trial date scheduled for 10/30/2018 and a trial date scheduled for 11/13/2018 for the pending charge of battery of a correctional facility employee in Allen Parish, Louisiana (date of alleged offense 6/06/2018). The defendant's criminal history reflects a propensity for violent crime and a felony record with offenses that have not been considered for multiple offender adjudication (see pre-sentence investigation report).
The Court has taken into consideration the severity of the beating inflicted upon the victim, Ruddie Rico, and the permanent physical injury that has resulted to him. The Court has further considered the great pain and suffering that Mr. Rico has endured by virtue of the defendant's criminal conduct, the significant cost of medical expenses attendant thereto, the need for continuing and future medical treatment for Mr. Rico and the permanent loss of eyesight suffered by him. The Court recognizes that under the factual situation presented at bar that the defendant may have felt personal anger from the circumstances arising in his work release environment. However, those personal feelings do not justify by any means whatsoever the cruel and severe beating inflicted upon the physical-ill [sic], sixty-eight-year-old victim. As required by the cruelty to the infirmed statute ( La.R.S. 14:93.3 ), the evidence presented at trial supports a finding beyond reasonable doubt that the victim, Ruddie Rico, was a person with infirmities and of advanced age, who was subject [sic] to intentional mistreatment by Gerrell Washington that resulted in unjustifiable pain and suffering to Mr. Rico.
... Without any question and beyond any reasonable doubt, the trial evidence supports a finding that the acts of cruelty inflicted upon the victim, Ruddie Rico, were both intentionally and maliciously committed by Gerrell Washington. Accordingly, the defendant is ordered to serve ten (10) years in the custody of the Department of Corrections with the State of Louisiana with all ten (10) years of the sentence imposed being without benefit of probation, parole or suspension of sentence; the defendant is further awarded credit for time served since arrest for this offense.
Second degree battery is defined as follows, to-wit:
" La.R.S. 14:34.1 : Second degree battery
A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury; however, this provision shall not apply to a medical provider who has obtained the consent of the patient."
Serious bodily injury is defined as a 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. The evidence presented at trial supports a verdict of guilty to the charge of second degree battery as the battery committed by the defendant, Gerrell Washington, upon the victim was intentional and the victim suffered serious bodily injury. Serious bodily injury in this case involved extreme physical pain, protracted and obvious disfigurement and impairment/permanent loss of eyesight for Mr. Ruddie Rico with a need for a prosthetic eye.
... Accordingly, and because of the intentional infliction of such extremely serious bodily injury upon the victim in this case, the Court imposes a sentence of eight (8) years in the custody of the Department of Corrections for the State of Louisiana, with credit for time served since arrest for this offense, said sentence to run concurrent with the sentence imposed this date in Criminal Docket No.: 200,824 on the charge of cruelty to the infirmed.

At the hearing on the motion to reconsider sentence, the trial court denied the motion, reasoning as follows:

BY THE COURT:
All right. And I thank you both. I do appreciate the opportunity to revisit and reconsider the situation. If memory serves me correctly and I think it does I think this particular case involved some very, very serious injuries, in fact permanent injuries which the victim lost eye sight and has underwent surgeries in fact multiple surgeries and large hospital bills and his life is forever ... it will never be the same; 68 years or whatever age he was. I mean his life is impacted so negatively and the injury to him was so great his life will never be the same.
I just under the circumstances I thought the court was very lenient, very gracious and very kind when I did not impose consecutive sentences for what happened. And although I had the discretion under the law and could have those sentences run consecutively, chose not to run them based on the circumstances, it all alleged[ly arose] out of the same occurrence and the same situation.
I have given consideration to that fact in the initial sentencing and I did not overlook the fact that it involved a single event and a single hitting as has been argued here today. I find that the motion is without merit and there are no legal grounds for the court to grant the reconsideration, in fact I do think full benefit was granted and my latitude begs the positions that the event was a singular event and a single hitting. When I imposed sentence and made sentence run concurrent in this case instead of consecutive, even in light of the serious nature of the injuries and the permanent injuries that were inflicted as a result of the beating that was inflicted in this case.
The Motion is denied.

Defendant's Argument in Brief

Defendant argues the trial court's imposition of the maximum sentence for cruelty to a person with an infirmity was excessive in this case. Defendant claims he was afraid of the victim and hit the victim only once after the victim pushed him and threatened to "plant him in the ground." Defendant further argues that this case is "not the typical case involving abuse by one assigned to the care of a helpless person." According to Defendant, the intent of the original enactment of La.R.S. 14:93.3 :

[W]as to shield those who need special protection, that is, those who are infirm and reside in "a nursing home, mental retardation facility, mental health facility, hospital or other residential facility" licensed or operated under the laws of the State of Louisiana.

We note that Defendant is not challenging the sufficiency of the evidence as to his conviction for cruelty to a person with an infirmity.

Defendant further argues that the trial court failed to give sufficient weight to the victim's threat "to plant [Defendant] in the ground," especially since the victim was a hunter. Additionally, Defendant claims he had a non-violent prison record for almost twenty years prior to the offense at issue. Finally, Defendant asserts he was not the victim's caretaker, this was not a case of on-going abuse, Defendant is remorseful, and the action will not likely reoccur.

Defendant cites several cases in which a lesser sentence was imposed for the offense of cruelty to persons with infirmities. In State v. Echeverria , 02-2592 (La.App. 1 Cir. 6/27/03), 858 So.2d 632, writ denied , 03-2332 (La. 8/20/04), 882 So.2d 580, the defendant was sentenced to seven years at hard labor as a third habitual offender for cruelty to the infirmed. Echeverria "shoved his eighty-four-and-one-half-year-old grandmother into kitchen furniture with both hands, thereby causing her unjustifiable pain and bruises." Echeverria , 858 So.2d at 636. Although the present Defendant received a more severe sentence and was not adjudicated a habitual offender, Defendant does have a criminal history of felonies, and the injuries caused by Defendant were more severe than the injuries caused by Echeverria.

Defendant also cites State v. Pullard , 10-863 (La.App. 3 Cir. 2/9/11), 56 So.3d 1205, a case in which this court upheld the maximum term of imprisonment for cruelty to the infirmed - ten years at hard labor. Defendant argues Pullard is distinguishable since the victim in Pullard died. Notably, at the time Pullard committed the offense, the penalty provision did not require any portion to be served without benefits. Pullard entered an Alford plea in exchange for which the State dismissed two other charges. Id. Pullard was the victim's live-in caregiver, and her "actions and/or omissions contributed to the victim's malnourishment, cardiac arrhythmia, dehydration, urinary tract and kidney infection, and bedsores." Pullard , 56 So.3d at 1206. "[T]he State urged the trial court to impose the maximum sentence, asserting the evidence supported the contention that the victim died" as a result of Pullard's treatment of the victim. Id. at 1207. Although Pullard had been previously arrested, she had no previous convictions. Id. In reviewing Pullard's excessive sentence claim, this court stated the following:

In support of her argument that the maximum sentence is excessive, Defendant refers this court to State v. Browhow , 41,686 (La.App. 2 Cir. 12/13/06), 945 So.2d 890, asserting that the facts are similar to those of the instant case. We note, however, that the defendant in Browhow was convicted of the lesser offense, attempted cruelty to the infirm, and was sentenced to the maximum five years at hard labor. As such, the conviction and sentence are not analogous to the instant case for comparison purposes.
Only a few reported cases involving a conviction for cruelty to the infirm were found in the jurisprudence. The facts of the cases reviewed involved either a professional caretaker working in such capacity or a relative that may or may not have been responsible for the victim's care. Although Defendant herein alleges she was not working for the victim in a professional capacity, she does not deny that she was his caregiver and had experience in caring for elderly patients as a certified nurse aide.
The lengthiest sentence for a conviction of cruelty to the infirm was imposed in State v. Echeverria , 02-2592 (La.App. 1 Cir. 6/27/03), 858 So.2d 632, writ denied , 03-2332 (La. 8/20/04), 882 So.2d 580. In Echeverria , the defendant, using both hands, pushed his eighty-four and one-half-year-old grandmother into the kitchen furniture. The victim reported that the defendant arrived at her home intoxicated and called her names before getting in her face and pushing her down. The victim suffered from soreness and bruises from the incident. Photographs of the victim introduced into evidence showed large bruises on the right side of her back and on her right hip. Following a bench trial, the defendant was convicted of cruelty to the infirm and sentenced to five years at hard labor. After his adjudication as a third felony habitual offender, his sentence was vacated, and he was then sentenced to seven years at hard labor. On appeal, the court held that the sentence imposed was not unconstitutionally excessive or grossly disproportionate to the severity of the offense.
In State v. Booker , 42,596 (La.App. 2 Cir. 10/31/07), 968 So.2d 1190, writ denied , 07-2295 (La. 4/25/08), 978 So.2d 364, the defendant was sentenced to three years at hard labor for cruelty to the infirm. The defendant was living with his ninety-five-year-old grandmother who was found home alone by emergency personnel dispatched to the home when she failed to answer the door. Upon forced entry, the victim was discovered sitting nude in her own waste with roaches crawling on her, unable to get up from her couch. She was then transported to a hospital and diagnosed with dehydration and malnutrition. Photos of the home introduced at trial depicted a home in deplorable condition. The defendant acknowledged to police at the scene and in his subsequent statement that he was the victim's caregiver. He paid the bills with the victim's money and was the only person living with the victim. Also, the defendant and the victim had no other family in the area. The defendant asserted he was doing the best he could and admitted that he needed some help caring for the victim. On appeal, the court noted that the sentence imposed was in the minimum range and concluded it was not excessive viewed in light of the harm done to society by cruelty to the aged and infirm.
In two cases, the defendants received suspended sentences. First, in State v. Pratt , 573 So.2d 607 (La.App. 2 Cir.1991), the defendant was convicted of three counts of cruelty to the infirm and was sentenced on each count to three years at hard labor, to be served concurrently. The sentences were suspended, and the defendant was placed on supervised probation for three years. The defendant was working at a nursing home as a nurse's aide where she physically assaulted three patients, repeatedly slapping and pinching them. The three female victims were ages seventy, eighty-four, and eighty-nine years old. The victims sustained bruising and/or swelling to their faces, and one victim was choked. Although the defendant had no prior felony convictions, the trial court found aggravating the fact that she denied the occurrences despite the testimony of co-workers who witnessed the abuse. Also, the defendant frequently used alcohol while on the job. Although there were no lasting physical injuries to the victims, the trial court concluded that the offenses were serious as they both threatened and caused serious harm. On appeal, the court did not find the sentences to be an abuse of the trial court's discretion.
Also, in State v. Baker , 41,325 (La.App. 2 Cir. 11/1/06), 942 So.2d 677, the defendant was convicted of cruelty to the infirm and sentenced to two years at hard labor, suspended, and was given three years of probation. Defendant was employed as a certified nurse aide at an assisted living facility and nursing home for veterans. The victim became angry with the defendant when she tried to rouse him from his sleep. He also became upset with the defendant and then argued with her when she placed him in his wheelchair in a hard manner. During the argument, the victim had his hand in front of the defendant's face and called her a "black b---h." The defendant then grabbed the victim's hand and bent his fingers backwards. When the victim told the defendant to stop, she released his hand. The victim's hand was later found to be swollen and bruised. The defendant did not challenge her sentence on appeal.
Lastly, the shortest sentence imposed for cruelty to the infirm was found in State v. Scott , 582 So.2d 864 (La.App. 5 Cir.), writ denied , 584 So.2d 1171 (La.1991). The defendant in Scott was convicted of four counts of cruelty to the infirm and was sentenced to one year in parish prison on each count, the sentences to run consecutively, and fined $ 10,000, plus costs. The defendant worked at a home for mentally retarded individuals as an Assistant Home Manager. During his employ, two of the defendant's clients were found to have burns caused by an electric iron. Also, there was testimony that the defendant hit, pushed, and tied up some of his clients, in addition to physical evidence of injurious marks. The defendant did not challenge his sentences on appeal.
Defendant's sentence in the instant case, the maximum possible sentence, is twice that of the longest sentence imposed for cruelty to the infirm found in the jurisprudence. Echeverria , 858 So.2d 632. Only the enhanced sentence of seven years imposed in Echeverria compares to the maximum sentence imposed upon Defendant, a first felony offender.

Id. at 1209-11 (footnotes omitted).

The court in Pullard found the case to be significantly different from the cases wherein a lesser sentence had been imposed. First, Pullard involved the death of the victim. Second, as a certified nurse aide, Pullard clearly knew or should have known the victim was vulnerable or incapable of resistance due to his extreme age, disability, and ill health. Id. Third, Pullard had a significant monetary interest in her relationship with the victim, the abuse of which was wiped away by Pullard's plea agreement. Id. This court concluded its analysis by stating the following:

This is a severe sentence. However, it is clear to this court that the trial court did not impose it lightly. We are moved by the trial court's divulgence that this matter represents the first occasion wherein it has imposed a maximum sentence on a first time offender. Therefore, in light of the victim's death and the other aggravating factors identified by the trial court at sentencing, this court finds that the trial court did not abuse its discretion when it imposed the maximum sentence.

Id. at 1212.

State's Argument in Brief

The State asserts that the sentence imposed is not excessive:

The State asserts that this was a serious crime which resulted in permanent disfigurement to Mr. Rico. Not only did Gerrell Washington cruelly maim Ruddie Rico, he justified his actions behind the ridiculous notion that a 68 year old man, nowhere near his physical condition, would cause him sustained fear of life. Not only did Washington deliver such a severe punch to Mr. Rico that it caused him to lose his eyeball and several teeth, he also continued to kick and stomp on Mr. Rico until he caused other permanent damage. Washington did not stop even at the point where he rendered Mr. Rico unconscious. Before the sentence the defendant showed no remorse for the permanent disfigurement he caused to a veteran, he only disrespected the court even further by yelling obscenities as he was removed from the courtroom. The State asserts that the proper analysis under La.Code of Criminal Procedure Article 894.1 was utilized by the Trial Court. These factors were all considered in the sentence imposed.

Analysis

Even though the sentence imposed in the present case is severe in comparison with other cases, the sentence is not so grossly disproportionate as to shock the sense of justice. Although the trial court imposed the maximum term of imprisonment, it is clear the trial court did not impose it lightly. Additionally, the trial court did not impose any fine even though it was permitted to do so by the penalty provision. See La.R.S. 14:93.3. As noted by the trial court, even though Defendant received the maximum sentence for both cruelty to a person with an infirmity and second degree battery, Defendant received concurrent sentences. This court has stated the following regarding a sentencing court's ability to impose consecutive sentences even when the offenses arose out of the same transaction:

Considering the serious nature and violence used in the commission of the offenses, the trial court in its discretion could have reasonably imposed consecutive sentences for one or more of these offenses even though they constituted parts of a common scheme or plan. "Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, La.C.Cr.P. art. 883 ; State v. Underwood , 353 So.2d 1013, 1019 (La.1977), a trial judge retains discretion to impose consecutive penalties on the basis of other factors, including the offender's past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community. State v. Williams , 445 So.2d 1171, 1182 (La.1984) ; State v. Jacobs , 371 So.2d 727, 732-33 (La.1979) (on reh'g)." State v. Thomas , 98-1144, p. 1 (La. 10/9/98), 719 So.2d 49, 49.

State v. Bartie , 12-673, p. 25 (La.App. 3 Cir. 12/5/12), 104 So.3d 735, 750, writ denied , 13-39 (La. 8/30/13), 120 So.3d 256. As discussed below, the imposition of consecutive sentences was within the trial court's discretion in the present case.

As stated by the trial court, the offense committed in the present case involved significant, permanent injuries to the victim. While Defendant argues that he hit the victim only once, the police investigation shows that the victim suffered a violent and sustained beating. The exhibits introduced at trial, including original photos of the injuries sustained by the victim, are not part of the appeal record. However, copies of those photos are attached to the probable cause affidavit. The photos show significant injuries sustained by the victim to his eye and hand. The record of the 911 emergency call from the incident, referencing injuries to the victim's eye and finger, is also attached to the probable cause affidavit. In the PSI, the victim stated Defendant caused him to lose his eye and caused his hand to be paralyzed. The victim also stated that his hand is wired together, he has had back surgery, he has had memory and hearing loss, and he is responsible for reimbursing Medicare for his medical bills, which are estimated to be around two million dollars.

Additionally, according to the PSI, Defendant is classified as a fourth-felony offender, with a lengthy criminal history:

• 4/19/1993 - Pled guilty to damage to property over $ 500.
• 7/14/1994 - Pled guilty to shoplifting.
• 1/27/1994 - Arrested and later pled guilty to possession of stolen property over $ 1000.
• 1/27/1994 - Arrested and later pled guilty to reckless operation of a vehicle.
• 2/3/1994 - Arrested and later pled guilty to simple criminal damage to property.
• 5/1/1995 - Pled guilty to aggravated battery.
• 5/1/1995 - Pled guilty to possession with the intent to distribute cocaine.
• 9/26/1995 - Arrested and later pled guilty to simple criminal damage to property.
• 6/12/1997 - Arrested and later pled guilty to enter/remain in places/on land after being forbidden.
• 6/15/1997 - Arrested and later pled guilty to misrepresentation during booking.
• 4/1/1999 - Pled guilty to armed robbery.
• 4/1/1999 - Pled guilty to manufacture/distribution of CDS II
• 7/19/2018 - Convicted of second degree battery (instant offense).
• 7/19/2018 - Convicted of cruelty to persons with infirmities (instant offense).
• 3/7/2018 - Pled guilty to public intimidation.
• 6/6/2018 - Arrested for battery of a correctional facility employee.

Of particular note is Defendant's history of violent offenses, including a previous conviction for aggravated battery in 1995 and a conviction for armed robbery in 1999. In June 2018, Defendant committed a battery on a correctional facility employee, which was still pending at the time of sentencing. Thus, Defendant's propensity for violence continued even after the current offense.

When the offense at issue occurred, Defendant was on a work release program, a time during which he should have been on his best behavior. Even considering Defendant's claim that he was provoked and in fear of a sixty-eight-year-old man, the extreme beating that Defendant inflicted upon the victim while on a work release assignment shows Defendant is a danger to society. Considering this fact along with Defendant's past criminal history, the trial court could have ordered the sentence imposed for cruelty to a person with an infirmity to run consecutively to the sentence imposed for second degree battery. Nonetheless, the trial court ordered Defendant's sentence for cruelty to a person with an infirmity to run concurrently with the sentence for second degree battery. Consequently, even though Defendant's sentences are the maximum for each crime, Defendant will actually be serving only one maximum sentence when he could be serving two.

Considering the extreme injuries suffered by the victim in the present case, Defendant's criminal history, Defendant's continued propensity for violence, and the trial court's order that the present sentence be served concurrently with the offense of second degree battery, we find that the sentence imposed for cruelty to a person with an infirmity is not excessive. Additionally, the supreme court has repeatedly stated "that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case." State v. Savoy , 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker , 00-3200 (La. 10/12/01), 799 So.2d 461 ; 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) ; and State v. Humphrey , 445 So.2d 1155 (La.1984) ).

For the foregoing reasons, we find that this assignment lacks merit.

DECREE

Defendant's sentence is affirmed.

AFFIRMED.

      We note that the bill of information refers to the offense as "cruelty to the infirmed." In 2014, the name of the offense was changed from "cruelty to the infirmed" to "cruelty to persons with infirmities." 2014 La. Acts No. 811 § 6. We have used the current name of the offense in this opinion.

      The written Motion to Waive Jury filed by Defendant's counsel and signed by Defendant refers to Defendant's charge as "aggravated battery," instead of "cruelty to persons with infirmities," the charge at issue in the present case. However, it is clear Defendant intended to waive his right to a jury in the present case since the motion contains the docket number in the present case, and the trial court discussed the waiver with Defendant in open court.

      In a separate docket number, Defendant was charged with second degree battery arising out of the same incident. Although the record does not contain a motion to consolidate, Defendant was tried in the same bench trial on both charges. Defendant's appeals of both convictions are presently before the court in separate docket numbers specifically, cruelty to persons with infirmities under appellate docket number 19-38 and second degree battery under appellate docket number 19-39.

      The record does not reflect the State's assertion that Defendant yelled obscenities at the court.

      Although the victim's injuries clearly required significant medical treatment, no mention of restitution was made in this case. Louisiana Code of Criminal Procedure Article 883.2 requires restitution to the victim to be ordered as part of a sentence when the court finds the victim suffered an actual pecuniary loss in connection with a criminal prosecution. Even though the trial court mentioned the victim's medical bills, it did not make a finding of actual pecuniary loss.