author: COOKS, Judge.

text:
    Laura M. ANDERSON v. STATE of Louisiana, et al.
    18-001
    Court of Appeal of Louisiana, Third Circuit.
    August 29, 2018 Rehearing Denied January 16, 2019
    Chuck D. Granger, Granger Law Firm, 130 W. Vine Street, P.O. Drawer 1849, Opelousas, LA 70571-1849, (337) 948-5000, COUNSEL FOR PLAINTIFF/APPELLANT: Laura M. Anderson
    David P. Salley, A. Jacob Culotta, Jr., Salley, Hite, Mercer & Resor, LLC, 365 Canal Street, Suite 1710, New Orleans, LA 70130, (504) 566-8800, COUNSEL FOR DEFENDANTS/APPELLEES: State of Louisiana, Office of Homeland Security and Emergency Preparedness and Marlys Sanders
    Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On April 23, 2013, Plaintiff, Laura M. Anderson, was driving her vehicle, a 2004 GMC Envoy, on West Lasalle Street in Ville Platte, Louisiana. Her vehicle collided with a 2012 Toyota Camry driven by Defendant, Marlys Sanders, who was in the course and scope of her employment with the State of Louisiana, Office of Homeland Security and Emergency Preparedness.

The parties' version of the events that led to the collision was vastly different. Ms. Sanders claimed she was being closely followed in the right lane of travel by Ms. Anderson's SUV. Ms. Sanders noted Ms. Anderson was close enough behind her that she could see Ms. Anderson was talking on a cell phone. Despite her slowing down her speed considerably, Ms. Sanders testified Ms. Anderson did not change lanes to pass her vehicle. Noticing how close Ms. Anderson's SUV was to her vehicle, Ms. Sanders stated she put her blinker on and began to move into the left lane of travel to allow Ms. Anderson to proceed past her vehicle. However, as she moved into the left lane she stated she heard an engine "rev up" and the vehicles slightly collided.

Ms. Anderson testified she was proceeding in the left lane of West Lasalle Street traveling approximately twenty-five miles per hour. She noticed the vehicle operated by Ms. Sanders a little ahead of her in the right lane. According to Ms. Anderson, the vehicle driven by Ms. Sanders drifted into her lane. Despite blowing her horn to alert Ms. Sanders and slamming on her brakes, the two vehicles collided.

Plaintiff presented the testimony of Nathaniel Thomas, who was a purported eyewitness to the accident. It was acknowledged that Mr. Thomas was married to Ms. Anderson's father's cousin. Mr. Thomas testified he was standing in the parking lot of the nearby Department of Motor Vehicles (DMV). Mr. Thomas stated he saw the two vehicles prior to impact, but also stated he was not really paying attention to the vehicles. However, he heard a horn blow and then saw the vehicles collide. He stated the car "crossed over into the left lane and hit the SUV."

Officer Blade Bonnette, with the Ville Platte Police Department, was called to the scene. Officer Bonnette did not witness the accident, and the vehicles were moved off the roadway prior to his arrival. After interviewing the parties and Mr. Thomas, he did not issue any tickets to either driver.

Plaintiff alleged she suffered injuries to her neck, right shoulder, right arm, back and both legs. A Petition for Damages was filed on April 15, 2014. A jury trial commenced on March 13, 2017.

Plaintiff alleged the accident was caused solely by the negligence of Ms. Sanders for failing to maintain a proper lookout and keep her vehicle under control. Plaintiff maintained Ms. Sanders changed lanes when it was unsafe to do so and failed to see what she should have seen. Plaintiff also alleged her injuries caused her past, present and future medical expenses and pain and suffering.

After a three-day trial, the jury, after deliberating for twenty minutes, returned a unanimous verdict. The jury first found Plaintiff and Ms. Sanders both fifty percent (50%) at fault in causing the subject accident. The jury then found Plaintiff did not sustain any injury as a result of the accident and accordingly awarded her no general or special damages.

Plaintiff filed a Motion for New Trial and/or a Motion for Judgment Notwithstanding the Verdict (JNOV) as to the findings of the jury as to both negligence and damages. They contended the evidence adduced at trial clearly demonstrated that Ms. Sanders was one hundred percent (100%) at fault in causing the accident and that she suffered compensable injuries from the accident.

The trial court issued oral reasons denying the Motion for New Trial and/or JNOV. The trial court stated it found the jury was attentive and that the evidence was sufficient to sustain the apportionment of fault reached by the jury. The trial court similarly found the evidence was sufficient for the jury to find Plaintiff did not suffer any injuries and/or damages as a result of the accident.

Plaintiff has appealed the lower court judgment, asserting the following assignments of error:

1. The jury was manifestly erroneous in finding Plaintiff fifty percent (50%) at fault in causing the accident.
2. The jury was manifestly erroneous in finding Plaintiff suffered no damages or injuries as a result of the accident.
3. The trial court committed legal error in failing to grant Plaintiff's motions for post-trial relief.

ANALYSIS

I. Jury's Apportionment of Fault.

In her first assignment of error, Plaintiff contends the jury manifestly erred in finding she was fifty percent (50%) at fault in causing the subject accident. The apportionment of fault is a finding of fact reviewed by this court under the manifest error standard of review. Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993). Under this standard, we must review the record in its entirety and determine if the jury's factual findings were clearly wrong or manifestly erroneous. Id. After reviewing the entire record, an appellate court may not reverse reasonable findings of the trial court, even if the appellate court would have reached a different conclusion if sitting as the trier of fact. Fontenot v. Patterson Ins. , 09-669 (La. 10/20/09), 23 So.3d 259.

As was briefly discussed above, the parties' version of the events that led to the collision was vastly different. Plaintiff testified she was proceeding in the left lane of West Lasalle Street traveling approximately twenty-five miles per hour, heading to a Dollar General store to shop. She stated she came nearly side by side with Ms. Sanders' vehicle, which was traveling in the right lane of travel on West Lasalle Street. Plaintiff stated she saw "paper or a binder in front of her on a steering wheel and there was something in her hand" that "looked like a cell phone." According to Plaintiff, the vehicle driven by Ms. Sanders drifted into her lane. Plaintiff did not see any turn signal activated on Ms. Sanders' vehicle. Despite blowing her horn to alert Ms. Sanders and slamming on her brakes, the two vehicles collided.

Plaintiff also presented the testimony of Mr. Thomas, who stated he saw the accident occur. Mr. Thomas acknowledged at trial that he was married to Plaintiff's father's cousin. Mr. Thomas testified he was standing right outside the door of the Department of Motor Vehicles (DMV). Mr. Thomas stated he saw the two vehicles prior to impact, but also stated he was not really paying "direct attention" to the vehicles. He stated he did not see any activated turn signal on Ms. Sanders' vehicle prior to the accident. He acknowledged on cross-examination he could not be sure if one of the vehicles changed lanes right before the collision, or if the SUV was behind the car prior to changing lanes. Mr. Thomas' previous deposition testimony stated he believed Ms. Sanders' vehicle slowed down prior to the collision, though at trial he first stated Ms. Sanders' vehicle did not slow down.

Mr. Thomas also testified that he approached Plaintiff's vehicle to see if she was okay following the accident. He stated he did not approach Ms. Sanders' vehicle at the scene. Despite acknowledging he did not approach Ms. Sanders' vehicle at the scene, he testified he saw papers in the front and back seat of her vehicle. On cross-examination, Mr. Thomas was asked how he was able to see papers in Ms. Sanders' vehicle, and testified as follows:

Q. And you said you did not speak to Ms. Sanders?
A. No.
Q. You said you did not approach her vehicle?
A. I didn't.
Q. How were you able ... but you were able to see there was some papers?
A. When she passed in front of the DMV I saw the cars as they passed and I looked across there and I could see that she had some stuff in her backseat and she had stuff in her front seat on the passenger side.
Q. And you saw that from standing on the sidewalk?
A. Oh yes sir.

Officer Bonnette was the investigating officer called to the scene of the accident. His prior deposition was read to the jury at trial. Officer Bonnette did not witness the accident, and the vehicles were moved off the roadway prior to his arrival. He simply reiterated what the parties to the accident and Mr. Thomas related to him at the scene. After interviewing the parties and Mr. Thomas, he did not issue any tickets to either driver.

Ms. Sanders testified on the date of the accident she was traveling from Lake Charles to the Police Jury building in Ville Platte on official business. She stated she first noticed Plaintiff's vehicle when it quickly came up behind her in the right lane. Ms. Sanders noted Plaintiff was close enough behind her that she could see Plaintiff was talking on a cell phone. Despite her slowing down her speed considerably, Ms. Sanders testified Ms. Anderson did not change lanes to pass her vehicle. Being concerned how close to her vehicle that Ms. Anderson's SUV was, Ms. Sanders stated she put her blinker on and began to move into the left lane of travel to allow Ms. Anderson to proceed past her vehicle. However, as she moved into the left lane she stated she heard an engine "rev up" and the vehicles slightly collided. Ms. Sanders gave the following description of the events that occurred immediately before the accident:

... So anyway I was just kind of keeping my eye out and I turned on to LaSalle and I, at some point, a few minutes later, realized that there was a very large SUV following me in the same lane (inaudible) very close to me and the reason I say it was close is because I could look into my rear view mirror and tell that the lady in the SUV was on her telephone and I said, well if I slow down considerably then she can go ahead and pass me and I don't have to interrupt. That's why I was in the right lane because I always choose the right lane to keep from impeding traffic which usually the faster traffic goes to the left lane anyway, but I ... I ... slowed considerably down. I probably, I'm gonna say between 10 and 15 miles an hour is all the speed I was doing because I was trying to watch her and watch where I was on the road to, to see where I got to the police jury and when she failed to go ahead and come around me then I said, well I will turn my blinker on and I'll just barely ease over in to the left lane maybe where she can see me because she was terribly close and of course when I did and I probably had not gotten but my front tire over the line when I heard her engine rev up. I didn't see her because as she came around me she was in my blind spot like you do when you come around you're in somebody's blind spot but I heard her motor rev up and when I did I tried coming back across and I must not have been, I don't know, just barely across the center line when she just glancedly [sic] hit me and when we stopped, you know, she ... I was probably five or six foot in front of her when we come to s stop after she ... she hit me.

The record establishes the jury was presented with two vastly different scenarios of how the accident occurred. The officer dispatched to the scene could offer little other than the parties' version of the events, as the vehicles had been moved from the roadway prior to his arrival. Mr. Thomas, the eyewitness offered by Plaintiff, largely supported Plaintiff's version of events, but acknowledged he was not paying "direct attention" to the vehicles. Despite his lack of focus and the fact that he was standing in the DMV parking lot across the street from the accident scene, he testified he was able to see papers in the back and front seat of Ms. Sanders' vehicle. He also stated at trial he believed Ms. Sanders' vehicle did not slow down prior to the accident, but was forced to acknowledge he testified differently in his earlier deposition testimony that Ms. Sanders' vehicle did slow down just before the accident. He also admitted on cross-examination he could not be sure if one of the vehicles changed lanes right before the collision, or if the SUV was behind the car prior to changing lanes.

Our appellate standard of review requires that we affirm the reasonable findings of the jury, even if we may have reached a different conclusion if sitting as the trier of fact. Considering the conflicting testimony of the witnesses, we cannot say the jury was manifestly erroneous or unreasonable in its apportionment of fault in this case. Thus, we affirm the jury's apportionment of fault in this case

II. Jury's Finding that Plaintiff Suffered No Injuries in the Accident.

The medical testimony was clear that Plaintiff suffered from numerous pre-existing conditions prior to the subject accident. Plaintiff testified that prior to the April 23, 2013 accident she was treated for diabetes, high blood pressure, swelling to both legs and feet, heal spurs, bone spurs and morbid obesity.

She was involved in a January 2009 automobile accident. As a result of that accident, Plaintiff complained of injuries to her neck, left arm, back and left leg. She became disabled due to these injuries, along with her previous problems stemming from her diabetes, high blood pressure and obesity. Plaintiff was also involved in a May 2012 automobile accident and complained of similar injuries as she suffered in an earlier 2009 automobile accident. The testimony of the physicians that treated Plaintiff clearly establishes she had a plethora of pre-existing physical maladies. However, at issue herein is whether the medical testimony and records establish if Plaintiff's medical condition was exacerbated or made worse by the subject accident.

Dr. John Rainey began treating Plaintiff in 2009 and testified at the initial treatment, Plaintiff complained of back, left neck and left shoulder pain. He stated Plaintiff was a diabetic and had weakness in her legs which caused them to give out on occasions. He noted Plaintiff used a cane during that time to assist her in getting around.

Dr. Rainey testified Plaintiff suffered a fall in April of 2011 and in August of 2011 complained of worsening pain in her back. Dr. Rainey felt that Plaintiff's symptoms were consistent with someone suffering from spinal stenosis and nerve disc impingement. He ordered Plaintiff to undergo a lumbar MRI.

On May 30, 2012, Plaintiff sought treatment from Dr. Rainey following an automobile accident that occurred on May 22, 2012. Following that accident, she complained of increasing back pain to Dr. Rainey, who recommended she see Dr. George Williams, an orthopedic surgeon, for a "potentially higher level of care." Dr. Rainey stated in his notes from September 13, 2012, that Dr. Williams was looking to obtain a cervical and thoracic MRI. Dr. Rainey did not treat Plaintiff again until after the subject accident.

Two days following the subject accident, Dr. Rainey saw Plaintiff, who complained of shoulder pain and lower back pain, with pain radiating into her right leg. Dr. Rainey sent her to physical therapy, but Plaintiff reported that did little to alleviate her pain. Plaintiff continued to complain of neck and back pain in the months following the subject accident. Dr. Rainey again referred her to Dr. Williams for evaluation.

Dr. Stephen Wyble, a pain management physician who treated Plaintiff both before and after the subject accident, testified via video deposition. Dr. Wyble stated he first saw Plaintiff on October 27, 2009, on referral from Dr. Williams for complaints of neck, left shoulder, left arm and lower back pain. He noted in his records that these issues were caused by a January 2009 automobile accident. He performed one cervical steroid injection on Plaintiff in connection with that accident.

Dr. Wyble did not treat Plaintiff again until July 30, 2014, once more on a referral from Dr. Williams for possible neck and back steroid injections. Plaintiff reported to Dr. Wyble her problems stemmed from the subject accident. Dr. Wyble performed two cervical and two lumbar steroid injections, which Plaintiff related brought her only limited relief. Dr. Wyble then began treating Plaintiff for general pain management and outlined a future pain management plan.

Dr. Wyble also ordered an EMG in response to a recommendation by Dr. Neil Romero. The EMG did not reveal any cervical defects and Dr. Wyble felt it looked "good - - pretty normal." He also testified he would defer any opinion as to the necessity of surgery to an orthopedic surgeon, such as Dr. Romero or Dr. Williams.

Dr. Wyble stated, as regarding Plaintiff's neck pain, that "based on the information I obtained from her, it would be related to the motor vehicle accident [of April 23, 2013]." As to the back pain, after noting Plaintiff had pre-existing issues with her lower back, he opined these issues were exacerbated as a result of the subject accident.

On cross-examination, Dr. Wyble stated he was unaware that Dr. Rainey had been prescribing Plaintiff pain medications in the months prior to the subject accident. He stated that in his view this would deem Plaintiff a chronic pain management patient. Despite this, Dr. Wyble specifically testified that Plaintiff's medical condition was "without a doubt, made worse" from the subject accident.

Dr. George Williams, an orthopedic surgeon, first treated Plaintiff in August of 2009 relating to complaints she had from an automobile accident she was involved in on January 4, 2009. He treated her for complaints of neck pain radiating into her left upper extremity and lower back pain radiating into her left lower extremity. He referred her to Dr. Wyble for pain management.

Dr. Williams also treated Plaintiff subsequent to another automobile accident that occurred in March of 2012. From that accident, Plaintiff complained of neck pain radiating into her left upper extremity, thoracic pain and back pain radiating into her left lower extremity. He noted during this time, Plaintiff was using a cane to aid in walking. She was referred to physical therapy and continued conservative care.

Dr. Williams did not see Plaintiff again until April 29, 2014, at which time he reported she was complaining of similar symptoms as before, but with pain now radiating into her right extremities. He again referred her to Dr. Wyble, who performed two steroid injections each on her neck and back. When the injections provided only limited relief, Dr. Williams, in December of 2014, recommended an anterior cervical decompression fusion of Plaintiff's neck. Later, on February 3, 2016, Dr. Williams recommended lumbar spine surgery to alleviate her lower back problems.

Dr. Williams specifically noted he disagreed with Dr. Romero's opinion that Plaintiff's right shoulder and arm pain complaints were not related to the subject accident. He was of the opinion the right sided complaints, were more probably than not, related to the subject accident.

On cross-examination, Dr. Williams agreed the MRIs taken in 2009 showed disc protrusion with annular tears in Plaintiff's cervical spine and a disc protrusion in her lumbar spine. He also agreed Plaintiff was a chronic pain patient by 2012, which was prior to the subject accident. Dr. Williams acknowledged that on November 13, 2012, Plaintiff was still reporting neck and lower back pain and his records noted "for the most part nothing had changed she was still having the same issues." Dr. Williams further stated on cross-examination that on the day he first issued the recommendation for cervical surgery, Plaintiff was only reporting left sided radiating issues. Dr. Williams also stated it was possible Plaintiff would have needed surgery in the future solely based on the complaints she articulated in 2009 with regard to her neck and back.

Dr. Neil Romero, an orthopedic surgeon, performed an examination on Plaintiff at Defendants' request. He also reviewed all of Plaintiff's medical records dating back to 2009. Although he stated Plaintiff related to him her symptoms were "mild' at the time of the subject accident, he found her prior treatment records revealed complaints of significant neck and back pain. Plaintiff informed Dr. Romero she had been disabled since 2012 but stated she was not sure why.

Dr. Romero's physical examination of Plaintiff revealed some pain with range of motion in her lower back. He found she exhibited limited range of motion in her neck, but intact strength and no deficit in her arms. Dr. Romero stated none of his objective testing produced any symptoms in her arms or legs.

Dr. Romero reviewed the cervical and lumbar MRIs performed on Plaintiff, both before and after the subject accident. As to her neck, he found they were consistent with moderate arthritic changes and although they did reveal some bone spurs in her neck, he found the MRIs did not show "any evidence of nerve root impingement or cord impingement." Dr. Romero found Plaintiff's lumbar MRIs were "essentially normal." Dr. Romero specifically noted the MRIs done before and after the subject accident were "essentially the same in both her neck and back."

Dr. Romero disagreed with Dr. Williams' recommendations for both the cervical and lumbar surgeries. He specifically testified he felt that neither surgery had any significant chance of improving Plaintiff's reported condition. Dr. Romero also testified it was his opinion that the risks of the surgical procedures recommended by Dr. Williams outweighed any potential benefits. Specifically, in testifying as to Dr. Williams' surgical recommendations, Dr. Romero stated:

A. Dr. Williams at the time was recommending a three level cervical fusion. I think he since he's changed that to a four level cervical fusion. Um...I felt that cervical spine surgery for her neck would be to treat arthritic pain, more than likely that was pre-existing. I didn't see evidence of significant stenosis or nerve root impingement that would explain her upper extremity symptoms so I felt that uh... doing a four level or three level cervical fusion was essentially to treat axial neck pain from an arthritic condition which we know is unpredictable. Uh...I didn't feel that surgery had a significant chance of improving her condition especially a multi-level cervical fusion which would likely leave her with a significant impairment after the surgery. I...I still feel that her MRI's appear to be normal. Uh...to recommend a lumbar fusion on someone as young as her with normal appear [sic] MRI's I just don't think has a potential to help her. Um ...
Q. What more do you think maybe she...what should she be doing at this point with regard to her lumbar spine?
A. Well if the recommendation for a fusion is based on an annular fissure which we don't do fusions for disc protrusions with radicular leg symptoms if that does exist. We do decompressions. Uh...a lumbar fusion is...is typically indicated for spinal instability or advanced arthritic changes that cause debilitating back pain. Um...it's...it's used to stabilize an unstable spine or treat a severely arthritic spine or a severely stenotic spine. Um...I felt that if...if the recommendation for a fusion was based on discogenic or axial back pain then...then another procedure such as a discogram could've been performed to confirm that. It would've also showed the annular tear which was not present on any of the MRI scans. Um...but my recommendation was not operative treatment for her lumbar spine. I just didn't feel that the potential risk of surgery outweighed the benefits with a lack of information that we had to make a surgical recommendation.

On cross-examination, Dr. Romero did note that "[b]ased on the records that predated her accident ..., all of her symptoms appear to be in her upper left extremity." He then noted in the emergency room after the accident in question she complained of right shoulder pain. Dr. Romero also confirmed that Dr. Williams' records indicated Plaintiff complained of pain in her right upper extremity.

Plaintiff testified as to her numerous prior health problems and prior accidents. She stated prior to January of 2009, she was treated for diabetes, high blood pressure, swelling to both legs and feet, heel spurs, bone spurs and morbid obesity. Plaintiff also confirmed she was involved in an automobile accident in January of 2009, following which she complained of pain in her neck and back, with pain radiating into her left arm and leg. These injuries, combined with her diabetes, high blood pressure and obesity, led Plaintiff to seek total disability status with the Social Security Administration (SSA).

Plaintiff testified she was involved in another automobile accident in May of 2012. She testified she suffered injuries in the same areas as the January 2009 accident. Plaintiff insisted her complaints of injuries were to her back, neck and left side of her body.

Plaintiff testified she began having problems with her neck, back, right shoulder and right arm immediately after the subject accident and went to the emergency room of Mercy Regional Hospital in Eunice. She then was treated for these problems by Dr. Rainey, Dr. Williams and Dr. Wyble. She testified the pain she felt in her right extremities following the subject accident was new and different than prior to the accident.

Plaintiff testified she had bariatric surgery in March of 2016 and has lost approximately 100 pounds since the procedure. She stated she no longer took medication for diabetes and high blood pressure and her goal was to lose enough weight to get cleared for neck and back surgery. She testified her goal was to relieve her pain enough to return to work.

Plaintiff testified she was currently treating with Dr. Wyble for her pain management. She said her pain was still similar to the period following the subject accident and she has "good days" and "bad days." On her "bad days" she does not leave home and has difficulty moving around.

Lastly, Plaintiff acknowledged being in two "minor" automobile accidents in 2014, wherein she maintained her vehicle sustained only very slight damage. She said the impact of each accident was very minimal.

On cross-examination, Plaintiff testified she was involved in an automobile accident in 2009, following which she treated with Dr. Rainey, Dr. Williams and Dr. Wyble for problems with her neck and back. She stated due to these injuries, she was no longer able to continue working at a corrections facility and sought disability benefits. She eventually sought a declaration of permanent disability through the SSA.

She testified she informed the SSA she could not sleep, had depression, could not perform household chores and could not drive her vehicle. She specifically stated she could only walk approximately ten steps before needing to rest. Plaintiff testified these assertions she made to the SSA only reflected her "bad days."

Plaintiff also explained she received a medical evaluation from Dr. Scott Chapman in connection with her 2009 application for total disability. Plaintiff confirmed Dr. Chapman diagnosed three herniated discs in her cervical spine and one herniated disc in her lumbar spine. Plaintiff also confirmed Dr. Chapman's report showed she was taking fifteen separate medications, although she stated she was not taking one of the medications listed.

Plaintiff also confirmed she did complain to Dr. Rainey about pain radiating into her right leg prior to the subject accident. She acknowledged she received an injection of Toradol for the pain in her right leg from Dr. Rainey.

A review of the medical records and testimony from her treating physicians establish without question that Plaintiff suffered from numerous pre-existing conditions prior to the subject accident, including, but not limited to, diabetes, high blood pressure and morbid obesity. The record also reveals Plaintiff was involved in several other automobile accidents which contributed to problems with her neck and back.

The record clearly establishes that with her history of prior injuries and conditions, Plaintiff was in poor physical health at the time of the subject accident. In fact, she had been declared disabled years prior to the subject accident and had been deemed a chronic pain patient for several years. However,

[t]he defendant's liability for damages is not mitigated by the fact that the plaintiff's pre-existing physical infirmity was responsible in part for the consequences of the plaintiff's injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

Bienemann v. State Farm Mut. Auto. Ins. Co. , 08-1045, p. 4 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623 (quoting Lasha v. Olin Corp. , 625 So.2d 1002, 1005 (La.1993) ). Nevertheless, before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim's current status must also be established. Lasha , 625 So.2d 1002 ;

Edwards v. LCR-M Corp., Inc. , 41,125 (La.App. 2 Cir. 7/12/06), 936 So.2d 233.

We find the testimony of the physicians in this case establishes, more probably than not, that Plaintiff's pre-existing maladies were exacerbated by the subject accident. Dr. Rainey testified the subject accident exacerbated her problems, although he acknowledged on Plaintiff's first visit with him in 2009 she had already been declared disabled because of chronic back pain. When asked on cross-examination whether he believed the subject accident caused the problems she is dealing with currently, Dr. Rainey responded, "I believe, that's a part of it, yes sir."

Likewise, Dr. Wyble was adamant that the injuries incurred by Plaintiff in the subject accident exacerbated her pre-existing problems. In attempting to answer a question asking him to quantify the degree to which Plaintiff's current condition could be related to the subject accident, Dr. Wyble stated:

A. See, you - - you take a patient who's already beat up, and you put her in another car wreck, and she's more beat up. And her complaints have changed. So when I saw her in 2009, she had left sided complaints. Now I don't know what happened in between. Apparently Dr. Rainey, you're telling me, was taking care of her. So I don't know what happened. All I know is when she came to me she stated that - - I knew she had pre-existing problems, but that she was doing okay. And clearly now she was doing worse. It does appear that she was on medications before. And she is probably going to need them lifelong. I think she was, without a doubt, made worse from this accident. Clearly had a chronic pain condition before.
Q. So you're not able to say which - - what percentage of this amount would be the result of an April 2013 accident, are you?
A. It was broke. You broke it more. And you bring it to me, and all I can do is tell you what it needs.

Clearly, while Dr. Wyble was reluctant to put a percentage on how much of Plaintiff's current condition was related to the subject accident, he was adamant that "she was, without a doubt, made worse from this accident."

Dr. Williams was also unequivocal in his belief that Plaintiff's physical condition was made worse by the subject accident. He specifically related her right sided complaints of pain to the injuries she endured from the subject accident.

While Dr. Romero's conclusions and testimony indicated his belief that Plaintiff did not suffer any new injuries as a result of the subject accident, and, in his opinion, the proposed surgeries by Dr. Williams were not in Plaintiff's best interest, he did not specifically testify that Plaintiff's problems were not exacerbated by the subject accident.

We also note, in closing arguments, counsel for Defendant made the following statement to the jury:

But I do admit the night of the accident she went there (the hospital), she clearly, probably had an aggravation from the inj ... the accident that occurred earlier in the day and she and she had the medical records that she incurred these expenses.... She incurred these medical expenses subsequent to our accident and I suggest that on the first line under past medical expenses you give her the $40,0000 that we stipulated to, that she incurred since April 23rd of 2013.

Defendants argue in brief that this statement was only to stipulate to the amount of medical costs incurred since the accident, in an attempt to "expedite matters at trial." They assert there "was never any stipulation that the stipulated medical costs were incurred as a result of injuries caused by the subject accident." While we agree with Defendant that arguments of counsel in closing statements are not evidence, we do find a clear reading of counsel's statement to the jury indicates its acknowledgment that Plaintiff suffered "an aggravation" from the injuries incurred in the subject accident. While we cannot say the jury erred in determining there were no new injuries suffered by Plaintiff in the subject accident, the above referenced statement by counsel for Defendants, coupled with the uncontroverted medical testimony that the subject accident aggravated Plaintiff's pre-existing problems, convinces us the jury manifestly erred in concluding Plaintiff suffered no injuries. Therefore, we reverse that finding of the jury.

III. Quantum.

We next address the appropriate amount of damages due to Plaintiff. Finding the record is sufficiently complete, we will conduct a de novo review of the record to determine the amount of damages due Plaintiff for the aggravation of her pre-existing injuries. Landry v. Bellanger , 02-1443 (La. 5/20/03), 851 So.2d 943.

A. Special Damages.

Our review establishes it is not clear from the record when Plaintiff's chronic neck and back pain returned to its "pre-accident state." This is particularly so as Plaintiff clearly has suffered from serious and ongoing pre-existing problems. However, the visit to the emergency room on the date of the subject accident as well as the subsequent visits to Dr. Rainey, Dr. Wyble and Dr. Williams, which were all "stipulated" to by Defendant, seem sufficiently related to the subject accident to be deemed compensable. The medical documents from these visits note Plaintiff's involvement and the subsequent aggravation of her pre-existing injuries from the subject accident. Accordingly, we find the jury erred in failing to award past medical expenses in the stipulated amount of $40,167.30, and so render same to Plaintiff.

Plaintiff also requests, as she did to the jury, that we award her the amount of the two surgical procedures recommended by Dr. Williams. The first was an anterior cervical discectomy and fusion, with an estimated cost of $139,302.00. The second surgical procedure was a lumbar transforaminal interbody fusion, with an estimated cost of $148,553.00. Plaintiff argued in brief there was no testimony that she would have had to potentially undergo surgical treatments to her cervical and lumbar spine "as a result of any prior conditions or accidents." However, Dr. Williams acknowledged on cross-examination that it was possible Plaintiff would have needed surgery in the future solely based on the complaints she articulated in 2009 with regard to her neck and back. Moreover, the jury was informed Dr. Chapman, who evaluated Plaintiff in 2009 in connection with her application for total disability, opined that it could be necessary for Plaintiff to undergo surgery to halt the progression of her motor and sensory deficits. The jury also heard testimony from Dr. Romero that neither surgical procedure recommended by Dr. Williams had any significant chance of improving Plaintiff's reported condition. Dr. Romero also testified it was his opinion that the risks of the surgical procedures recommended by Dr. Williams outweighed any potential benefits. Thus, we cannot say the evidence at trial established the necessity of the recommended surgical procedures, and we decline to award the projected costs of these procedures to Plaintiff.

Plaintiff also requested the jury award her future medical costs for a pain management regimen recommended by Dr. Wyble, which he maintained Plaintiff would require for the remainder of her life. The costs associated with this program, which was to be for 396 months, was estimated by Plaintiff to be $177,431.63. For the following reasons, we find the record does not support this award.

The pain management program Dr. Wyble proposed is essentially the same regimen Plaintiff has been following since 2009. As set forth earlier, in Dr. Chapman's report of 2009 it indicated Plaintiff was taking fifteen separate medications. The records also established Plaintiff continuously was taking prescription pain medications in the years prior to the subject accident, and she had numerous pain medication prescriptions filled in the months just prior to the subject accident. The medical testimony was also clear that Plaintiff was classified as a chronic pain patient years prior to the occurrence of the subject accident. Therefore, we decline to award medical costs for the pain management regimen recommended by Dr. Wyble.

B. General Damages.

We next turn to the issue of general damages. Finding the record established Plaintiff suffered an aggravation of her pre-existing neck and back problems as a result of the subject accident, we find an award of general damages is appropriate in this case. "The primary objective of general damages is to restore the party in as near a fashion as possible to the state he or she was in at the time immediately preceding injury." Daigle v. U.S. Fidelity and Guar. Ins. Co. , 94-0304, p. 7 (La.App. 1 Cir. 5/5/95), 655 So.2d 431, 437.

Based on the record before us, we find a general damages award of $100,000.00 would justly compensate Plaintiff for the injuries sustained. See Pannell v. Encompass Ins. Co. , 06-1601 (La.App. 3 Cir. 5/2/07), 956 So.2d 152 (this court awarded $90,000.00 in general damages for injuries to a motorist's neck and shoulder with an aggravation of a pre-existing lower back condition where the motorist had one, possibly two herniated discs ); Dugas v. Derouen , 01-1397 (La.App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied , 02-2131 (La. 11/15/02), 829 So.2d 426 (this court awarded general damages of $70,000.00 for an aggravation of a pre-existing disc condition and TMJ condition, broken rib and cervical strain ); Guidry v. Millers Cas. Ins. Co. , 01-01 (La.App. 1 Cir. 6/21/02), 822 So.2d 675 ($50,000.00 awarded by the appellate court for an aggravation of a degenerative lumbar condition not requiring surgery, but, resulting in continuing lifetime symptoms); and Rabalais v. Mason , 01-925 (La.App. 5 Cir. 1/15/02), 807 So.2d 983 (the appellate court increased a general damage award to $50,000.00 for a plaintiff who suffered an aggravation of a pre-existing degenerative arthritic condition in an automobile accident).

DECREE

For the foregoing reasons, the portion of the jury's verdict finding each party fifty percent at fault in causing the subject accident is affirmed. The portion of the jury verdict finding Plaintiff, Laura M. Anderson, suffered no injuries as a result of the accident is reversed. Judgment is rendered awarding Plaintiff $40,167.30 in past medical expenses and $100,000.00 in general damages. All costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: McDONALD, J.

license: Public Domain

text:
    STATE IN the INTEREST OF R.K.
    2018 KJ 0412
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 24, 2018
    Hillar Moore III, District Attorney, and, Otha Curtis Nelson Jr., Courtney Myers, Assistant District Attorneys, Baton Rouge, Louisiana, Attorneys for Appellant/State of Louisiana
    Christopher T. Freyder, James R. Clary Jr., Baton Rouge, Louisiana, Attorneys for Defendant/Appellee R.K.
    BEFORE: McDONALD, CRAIN, and HOLDRIDGE, JJ.

      We reference the defendant only by his initials under the confidentiality requirements of juvenile proceedings set forth in LSA-Ch.C. art. 412 and URCA Rules 5-1 and 5-2.

   McDONALD, J.

The 16-year-old juvenile defendant, R.K., was alleged to be delinquent under petition number 110,529, filed by the State on November 1, 2016, pursuant to the Louisiana Children's Code. The petition was based upon the defendant's alleged commission of the following offenses against his nephew: obscenity, a violation of LSA-R.S. 14:106 (count one); first degree rape, a violation of LSA-R.S. 14:42A(4) (count two); and indecent behavior with juveniles, a violation of LSA-R.S. 14:81A(1) (count three). The defendant initially denied the allegations, and the matter was set for adjudication. After the State rested, the defendant moved for a directed verdict of acquittal, which the juvenile court granted as to count one and ordered that the petition be dismissed as to count one. Thereafter, pursuant to a plea agreement, the defendant withdrew his denial to the allegations of the petition, entered an admission, and the court adjudicated him delinquent as to sexual battery on count two and indecent behavior with a juvenile on count three.

At the disposition hearing, the juvenile court committed the defendant to the custody of the Office of Juvenile Justice (OJJ), a division of the Department of Public Safety and Corrections, until his 21st birthday. The court suspended that disposition and placed the defendant on supervised probation for two years. In addition to other conditions of probation, the court also ordered the defendant to complete 50 hours of community service, cooperate with sex offender treatment, pay court costs, have no contact with the victim, and have no unsupervised contact with children under 10 years old. On appeal, the State contends that the disposition imposed by the court is illegally lenient. For the following reasons, we affirm the defendant's adjudications of delinquency and disposition.

FACTS

The adjudication hearing was not made part of the appellate record. According to the petition and predisposition report, the victim's parents reported the defendant to the East Baton Rouge Sheriff's Office after the victim disclosed multiple incidents of sexual misconduct by the defendant occurring between January 1, 2015 and July 31, 2016. Specifically, the predisposition report states that, during a forensic interview at the Children's Advocacy Center, the victim disclosed that the defendant taught the victim how to masturbate, grabbed the victim's penis underneath his clothing, anally penetrated the victim, and forced the victim to watch him masturbate.

DISPOSITION

In its sole assignment of error, the State contends that the disposition imposed by the juvenile court was illegally lenient. The State argues that the court failed to consider the best interest of the victim and society and failed to address the defendant's full rehabilitative needs.

After adjudicating a child to be delinquent, a court should impose the "least restrictive disposition" authorized by LSA-Ch.C. arts. 897 through 900, which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. LSA-Ch.C. art. 901B. Further, LSA-Ch.C. art. 901A provides, "In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal."

Louisiana Children's Code article 897A provides:

A. After adjudication of any felony-grade delinquent act other than those described in Article 897.1,[ ] the court may:
(1) Reprimand and warn the child and release him into the custody of his parents either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public.
(2) Reprimand and warn the child and release him into the custody of some other suitable person either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public. The court shall, whenever practicable, select a person of the same religious faith as the child or his parents.
(3) Place the child on probation in the custody of his parents or other suitable person.

Commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate under any of the following circumstances: (1) there is an undue risk that during the period of a suspended commitment or probation that the child will commit another crime; (2) the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment; (3) a lesser disposition will deprecate the seriousness of the child's delinquent act; and (4) the delinquent act involved the illegal carrying, use, or possession of a firearm. LSA-Ch.C. art. 901C; State in Interest of J.W. , 95-1131 (La. App. 1 Cir. 2/23/96), 669 So.2d 584, 586.

In determining a proper disposition, the court shall receive all evidence helpful in determining the issue, including oral and written reports, the predisposition report, any mental evaluation reports, and all other evidence offered by the child or the State. LSA-Ch.C. art. 893B. The court may rely on this evidence to the extent of its probative value even though not admissible at the adjudication hearing. Id. Counsel for the parties shall be afforded the opportunity to present evidence and to examine and controvert written reports so received and to cross examine individuals preparing the reports. LSA-Ch.C. art. 893C.

At the disposition hearing, the State introduced a predisposition report prepared by the defendant's probation officer. In the report, the probation officer noted that the defendant did not accept responsibility for the offenses and did not show remorse. She also noted that his parents did not believe their son was guilty of the offenses, did not hold him accountable for the charges, and felt their family was being held captive by the conditions of release imposed on their son. Noting that this behavior would continue and the victim's family believed defendant would not receive the help needed if he remained in his parents' home, the probation officer recommended that he be committed to the OJJ until his 21st birthday. In an addendum to her report, the probation officer noted that the defendant had not committed any further delinquent acts, had refrained from using illegal drugs, and had no disciplinary issues at school. She also reported that, according to his parents, he had followed all rules in his home and had abided by his curfew.

The State also introduced a copy of a psychosexual evaluation completed by clinical psychologist Dr. Brandon Romano and an addendum to his evaluation. Dr. Romano also recommended that the defendant be considered for placement with the OJJ and participate in either a residential treatment program for youth with sexual behavior problems or the Juvenile Understanding and Managing Problematic Behavior Program (JUMP). In a report addendum, Dr. Romano clarified that, although the offense record provided to him incorrectly stated that the defendant was adjudicated delinquent for second degree rape, the defendant's estimated risk did not change even though he was actually adjudicated for a lesser offense. Dr. Romano concluded that the "heterogeneity of the victims, duration of the offenses(s), and diversity of offending behaviors - among other risk factors - suggests [the defendant] would be better served in a residential therapeutic setting for youth with sexual behavior problems." He further stated that JUMP should only be considered if the defendant did not meet admission criteria for a residential setting. Finally, the State introduced a victim impact statement, including a letter to the juvenile court from the victim's mother. The victim's mother expressed concern that the defendant would not receive the appropriate help if he remained in his parents' home. The State also attempted to introduce a video of the victim's Child Advocacy Center interview, but the court sustained the defendant's objection to the introduction of the video. The State proffered the video into evidence and asked the court to commit the defendant to the OJJ, noting that he had not accepted responsibility. The State pointed out that the defendant stated that he only accepted the plea bargain for his family, because if he were not adjudicated delinquent, the victim in petition number 110,528 would have committed suicide.

The defendant's counsel asked for probation and noted that the alleged probation violations were "born of inaccurate and misconstrued statements." His counsel also complained that there were numerous hearsay allegations about the defendant and his family that "tainted" Dr. Romano's understanding of the case.

The juvenile court explained that it was "restrained" by the directives of the legislature to consider the least restrictive option for the defendant and could only commit him to custody for "extreme circumstances." The court further noted that it heard the evidence and reviewed the victim impact statement. The court pointed out that it believed the victim and would have adjudicated the defendant delinquent had he not entered a plea. The court then stated that the law and circumstances of the case required it to allow the defendant to seek rehabilitation in his community. The court instructed the defendant that he was "on edge" and stated, "[t]he only reason that [the defendant is] not going into State's custody is because [the court] feel[s] that when you are on the edge, ... the law tells [the court] that it has to go this way. I will also tell you[,] were this to have happened in district court, and I were a district court judge, you could have gone to jail for a very long time." The court committed the defendant to the OJJ until his 21st birthday, suspended that disposition, and ordered the defendant to participate in supervised probation for two years.

The State filed a motion to reconsider the disposition, and the juvenile court held a hearing on the motion. At the hearing, the defendant's counsel argued that the Dr. Romano's recommendations and the defendant's probation officer's recommendations were "full of errors as to the charges, full of errors as to the statements made by not only [the defendant], but also [by the defendant's] family[.]" Specifically, as outlined in his disposition memorandum, the defendant had argued that his probation officer's predisposition report contained "numerous, new allegations" regarding the defendant and his immediate family, several of which were "criminal and/or delinquent in nature." The defendant also argued that the report incorrectly alleged that he violated his release by traveling, when he actually received permission from his former probation officer to travel. Although later amended, the report originally incorrectly stated that the defendant was adjudicated delinquent on one count of second degree rape. The defendant complained that Dr. Romano's report misconstrued many of his statements during his interview and erroneously stated that the defendant was adjudicated for second degree rape. However, as noted above, in his report addendum, Dr. Romano clarified that the incorrect adjudication information did not affect his recommendation.

The juvenile court responded that the case was "close" and the balance had to "weigh towards the ... less restrictive option." Thereafter, the court denied the State's motion, explaining:

I think I'm bound by the [tenets] of the Children's Code to consider all the factors and then to place a juvenile defendant in a least restrictive[,] most appropriate - I will say, I think as I said before, that this was not an easy decision for [t]he Court. It was close. And I think when it is close ... [t]he Court feels ... that that balance has to weigh towards the least - towards the less restrictive option. I understand the position of the State; I'm very sympathetic to the position of the State. I'm very sympathetic towards the position of the [victim], but I have to recognize that the goal... [what] will ultimately happen is that this youth is going to be returned to the community .... All the studies, all the research - [e]verything says that outcomes are generally better without commitment. That that's what we have to try first.... So, [t]he Court did reconsider its sentence. I went back over, certainly within my head, and reread the State's motion and considered the evidence that was presented[,] as well as the predisposition report[,] to determine whether or not [t]he Court did make an error, [because] that would not be the first time that [t]he Court made an error. In doing so, I have the same reservations, but I believe I still have to come to the same outcome. So, I'm going to deny the State's motion. The sentence will stand as imposed.

A juvenile court is given wide discretion in imposing a disposition within statutory limits, and its disposition should not be set aside unless the court manifestly abuses that discretion. State in Interest of C.T. , 15-1864 (La. App. 1 Cir. 4/15/16), 195 So.3d 70, 76, affirmed , 16-0939 (La. 10/18/17), 236 So.3d 1210 (per curiam). The court here considered the predisposition report and all evidence submitted. The court was aware that the predisposition report contained seriously prejudicial assertions against the defendant; but, it also had the evidence submitted by the defendant that controverted those assertions. The juvenile court apparently weighed this conflicting evidence and relied upon it to the extent it found it the evidence probative. See LSA-Ch.C. art. 893B. Further, even with two professional recommendations of commitment, and noting that it had reservations, the court maintained that the "goal ... is that [the defendant] is going to be returned to the community" and that outcomes were generally better without commitment.

We recognize that maintaining a juvenile defendant in his community may often be preferable to commitment. In this case, however, we question whether the juvenile court's disposition adequately addresses the circumstances of this case, the defendant's needs, and the best interest of society. See LSA-Ch.C. art. 901(B). The defendant did not accept responsibility for his repeated horrific offenses against the victim. His parents did not believe their son was guilty of the multiple charged offenses against him. The probation officer believed the behavior would continue if the defendant was allowed to remain in his parents' home. Both the probation officer and the clinical psychologist recommended a custodial environment. We find it hard to imagine how returning this defendant to his community will result in a better outcome than commitment. Further, we believe a suspended sentence minimizes the defendant's despicable acts. But, given the juvenile court's wide discretion in considering dispositional options, and even though this Court may have decided this case differently as the factfinder, we are constrained to affirm this adjudication because we find no manifest abuse of that discretion in this case.

ADJUDICATIONS AND DISPOSITION AFFIRMED.

Crain, J. dissents.

      The defendant was also alleged to be delinquent under petition number 110,528 based upon the alleged commission of sexual battery, obscenity, and second degree rape with a different victim, his younger female cousin. The juvenile court adjudicated the defendant delinquent as to indecent behavior with a juvenile and sexual battery; committed him to the Office of Juvenile Justice until his 21st birthday; suspended that disposition; and, placed him on supervised probation for two years. The State has also appealed that adjudication and disposition. See State in Interest of R.K., 18-0412 (La. App. 1 Cir. 9/24/18), 258 So.3d 939, 2018 WL 4561436.

      We note that 2018 La. Sess. Law Serv. Act 467 amended and reenacted LSA-Ch.C. arts. 801, 897.1, and 901. According to newly added LSA-Ch.C. art. 897.1G, its provisions "shall apply to all children in the custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, on or after August 1, 2018."

      Because the defendant was not adjudicated as to a LSA-Ch.C. art. 897.1 offense, LSA-Ch.C. art. 897 applies. The penalty for sexual battery, in pertinent part, is imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for not more than ten years. See LSA-R.S. 14:43.1C(1). The penalty for indecent behavior with juveniles is a fine of not more than $5,000, or imprisonment with or without hard labor for not more than seven years, or both. See LSA-R.S. 14:81H(1).

      Dr. Romano's conclusion is based on the facts of this case and those in State in the Interest of R.K. , 18-04112 (La. App. 1 Cir. 9/24/18), 258 So.3d 939, 2018 WL 4561436.

      We note that the juvenile court imposed a single disposition despite multiple adjudications in this case. In contrast to adult cases, which require separate sentences for each conviction to be appealable, it is appropriate in juvenile cases for a court to declare a single disposition for multiple adjudications. See State in Interest of J.C. , 09-2000 (La. App. 1 Cir. 7/15/10), 2010 WL 2802104 *4 (unpublished).


author: McCLENDON, J.

text:
    STATE of Louisiana v. Michael Joseph BROOKS, Jr.
    2017 KA 1755
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 24, 2018
    Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee State of Louisiana
    Bertha M. Hillman, Louisiana Appellate Project, Covington, Louisiana, Counsel for Defendant/Appellant Michael Joseph Brooks, Jr.
    Michael Joseph Brooks, Angola, Louisiana, In Proper Person
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

Defendant, Michael Joseph Brooks, Jr., was charged by grand jury indictment with one count of molestation of a juvenile (under the age of thirteen years), a violation of LSA-R.S. 14:81.2 (count 1), and two counts of aggravated rape (of a victim under the age of thirteen years), violations of LSA-R.S. 14:42 (prior to amendment, which redesignated aggravated rape as first degree rape) (counts 2 and 3). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on counts 1 and 3; he was found not guilty on count 2. Defendant filed a motion for post-verdict judgment of acquittal, which was denied. On count 1, defendant was sentenced to twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; on count 3, he was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. Defendant now appeals, designating one counseled assignment of error and two pro se assignments of error. We affirm the molestation of a juvenile conviction and sentence; we affirm the aggravated rape conviction, amend the sentence to include that it be served at hard labor, and affirm as amended.

FACTS

The mother of eight-year-old daughter S.W. married defendant in February of 2009. They lived in Houma. Before the marriage, S.W.'s mother and defendant lived together for two years, each with children from previous relationships. According to S.W., when she was in the first grade (prior to her mother's and defendant's marriage), defendant put his finger in her vagina when she was taking a bath. At the time, she did not tell anyone of the incident. Several years later, according to S.W., when she was eleven years old, she and defendant were in a closet at their home in Dularge. There, defendant vaginally raped S.W. At the time, she did not tell anyone of the incident. In 2013, when she was thirteen years old and attending Evergreen Junior High School, S.W. told a guidance counselor what defendant had done to her. The school then contacted S.W.'s mother, who informed the police. Defendant did not testify at trial.

COUNSELED AND FIRST PRO SE ASSIGNMENT OF ERROR

In his sole counseled assignment of error, defendant argues the State did not prove beyond a reasonable doubt that he committed molestation of a juvenile or aggravated rape and, as such, the evidence was insufficient to support either conviction. In his pro se assignment of error, defendant argues the evidence was insufficient to support his convictions for molestation of a juvenile and aggravated rape.

Counseled Sufficiency Assignment of Error

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; LSA-Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

At the time of the offense, LSA-R.S. 14:42 provided, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* * *
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.

Louisiana Revised Statutes 14:41 provides, in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Also, LSA-R.S. 14:81.2A(1) provides:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

A lewd and lascivious act is an act that is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner. State v. Graham, 13-1806 (La.App. 1 Cir. 7/3/14), 148 So.3d 601, 606. Specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. Id.

Defendant suggests in brief that the evidence of these crimes was insufficient because S.W.'s testimony and the statements that she made to certain people were "riddled with internal contradictions and inconsistencies." For example, S.W. testified that the bathtub incident (when defendant put his finger in her vagina) occurred when she was five or six years old. According to S.W., defendant had checked her out of school (first grade) because she was sick; when they got home, defendant made her take a bath. Defendant notes in brief that most of S.W.'s school records at this time had been destroyed, and there was no record of who checked out S.W. or why she was checked out. Further, according to defendant, school records indicated that he "would have been available to check her out on only one occasion, August 27, 2007." Defendant further notes that S.W, was seven years old on August 27, 2007. Defendant further suggests S.W's trial testimony was inconsistent with statements that she made to her mother and to Detective Tara Whitney, with the Terrebonne Parish Sheriff's Office, who handled S.W.'s case. Defendant notes that Detective Whitney testified that S.W. told her that she (S.W.) told her mother for the first time about the sexual abuse by defendant the day her mother and defendant got married which, according to S.W., was September of 2010. Further, according to defendant in brief, S.W. told the detective (per the detective's testimony) that there was domestic violence between defendant and S.W.'s mother on her wedding day because of S.W.'s disclosure of sexual abuse; and both defendant and S.W.'s mother, according to S.W. were issued a summons. Defendant suggests in brief that "none" of what S.W. said regarding the wedding and subsequent domestic violence is true. According to defendant, there was no incident in September of 2010; rather, there was a report of domestic violence in January of 2010, and a summons was issued only to S.W.'s mother. Further, defendant notes, defendant and S.W.'s mother were married on February 15, 2009, not in September of 2010.

S.W.'s testimony, if believed, established that defendant, on separate occasions, molested her and raped her. According to S.W., she was in the first grade and living at "Colonial Village" apartments with her mother, defendant, and siblings. S.W. testified that defendant had checked her out of school and, when they got home, he told her to take a bath. The defendant went into the bathroom with her and, while S.W. was bathing, defendant told her she was not taking "a bath right," so he bathed her. While she was standing in the tub, according to S.W., defendant put his finger in her vagina. Defendant stopped when S.W. said she was going to tell her mother. Defendant replied to this that S.W. would get in trouble.

On a later occasion, when she was eleven years old, S.W. was living with her family in a house in Dularge on Riley Drive. There was a very large walk-in closet in the house, wherein S.W. and her siblings played and S.W. sometimes slept. There was a dresser and a television in the closet. According to S.W., sometime in 2011, she and defendant were in the closet. Defendant got behind S.W., pulled her shorts down, and told her to bend over. S.W. complied. According to S.W., defendant then put the tip of his penis in her vagina. Defendant pushed S.W., and she hit the wall with her head. She then left the closet and went outside. Louisiana Revised Statutes 14:41B provides that "[e]mission is not necessary" and that "any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." See State v. Rives, 407 So.2d 1195, 1197 (La. 1981).

Alton Johnson, the Terrebonne Parish School Board Supervisor of Child Welfare and Attendance, testified at trial that S.W. attended Broadmoor Elementary for first grade in 2006 and 2007. Johnson indicated that attendance records showed that S.W. had been checked out of school on December 15, 2006, and on August 22, 2007. On both days, she had been checked out at 12:35 p.m. According to Johnson, there was nothing in the documentation to show who checked out S.W. or the reason for being checked out.

Regarding the alleged rape incident, defendant notes that S.W. was asked to read an account of the alleged sexual abuse by defendant that she had handwritten in a letter. In this letter, S.W. mentions the bathtub incident and another incident in 2010 in a closet; the letter, however, does not contain any account of the rape that S.W. had alleged occurred in the same closet. Defendant suggests in brief that it is "highly unlikely that if she had been raped in a closet" when she was eleven years old that she would have forgotten it.

Regarding the alleged crimes for which defendant was convicted, a reasonable trier of fact could have concluded that, despite any inconsistencies or contradictions, S.W. was being truthful when she testified that defendant, on one occasion, had put his finger in her vagina, and a few years later on another occasion, defendant vaginally raped her. The jury could have reasonably concluded that, given S.W.'s very young age at the time of these incidents, she was unable to remember exact dates and times, or to recall specific details surrounding the incidents. Dr. Jamie Jackson, an expert in pediatrics, testified at trial that delayed disclosure was common among sexual abuse victims, and that such disclosure could sometimes take years.

In any event, the foregoing arguments raised by defendant are credibility issues. The jury heard the testimony and viewed the evidence presented to it at trial and found defendant guilty as charged (on counts 1 and 3). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d.1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir. 1985). See State v. Weary, 03-3067 (La. 4/24/06), 931 So.2d 297, 311-12, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La.App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). See Rives, 407 So.2d at 1197 (La. 1981). The jury's verdicts reflected the reasonable conclusion that, based on S.W.'s testimony, defendant molested and raped her. In finding defendant guilty, the jury clearly rejected the defendant's theory of innocence. See Moten, 510 So.2d at 61.

After a thorough review of the record, we find the evidence supports the jury's verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty of molestation of a juvenile and aggravated rape. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

The counseled assignment of error is without merit.

Pro Se Sufficiency Assignment of Error

In his pro se brief, defendant makes the same credibility and lack of corroboration arguments regarding both convictions. In particular, he raises no new issues regarding the sufficiency of the aggravated rape conviction, which has been fully addressed in the counseled assignment of error.

Regarding the molestation of a juvenile conviction, defendant raises a new issue; he argues the State failed to prove that he committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. See State v. Leblanc, 506 So.2d 1197 (La. 1987). This element of the offense is disjunctive and proof of either-the "use of force" element or the "supervision and control" element-satisfies the element See State v. Dale, 50,195 (La.App. 2 Cir. 11/18/15), 180 So.3d 528, 534-35, writ denied, 15-2291 (La, 4/4/16), 190 So.3d 1203 ; State v. Moses, 615 So.2d 1030, 1034 (La.App. 1 Cir.), writ denied, 624 So.2d 1223 (La. 1993).

According to defendant, the State failed to prove either the "use of force" element or the "supervision and control" element. We do not agree. While the evidence did not establish that defendant used force on S.W., the evidence clearly established he used his position of authority to molest S.W. By conflation, defendant avers in brief that, pursuant to the Leblanc decision, the State was required to prove that "by the exertion of influence over the child," he must have effectively forced S.W. to participate in the lewd acts. This is incorrect. Under the "supervision and control" element, the law requires that the. molestation be accomplished by virtue of control and/or supervision of the juvenile. Moreover, the Leblanc decision had nothing to do with the "supervision and control" element. It addressed and discussed only the "use of force" element. See Leblanc, 506 So.2d at 1199 n.4.

In the instant matter, prior to marrying defendant in early 2009, S.W.'s mother lived with defendant and their children, including S.W., for about two years. The record supports a finding that in 2007, when defendant was living with them, defendant checked S.W. out of school and told S.W. to take a bath and how to bathe. During this time, S.W.'s mother worked.

The foregoing facts established that defendant had authority or supervision over S.W. Defendant was clearly placed in a position of trust by S.W.'s mother. While defendant was not S.W.'s stepfather at the time of the molestation, he took on the role of guardian of S.W. and perpetrated the molestation by virtue of control and/or supervision. No biological relationship between the offender and the victim is required. See State v. Ellis, 38,740 (La.App. 2 Cir. 8/18/04), 880 So.2d 214, 219. See also State v. Kennon, 34,455, 34,456 (La.App. 2 Cir. 2/28/01), 781 So.2d 734 ; State v. Welch, 99-1283 (La. 4/11/00), 760 So.2d 317 ; State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181 (La. 1993). The jurisprudence, rather, has interpreted the "supervision and control" element of molestation of a juvenile to be satisfied by someone who has emotional control over the victim, as well as by someone who is a live-in boyfriend, non-custodial parent, babysitter, relative, friend, a pastor, and neighbor. State v. Roy, 15-515 (La.App. 3 Cir. 11/4/15), 177 So.3d 1103, 1109. See State v. Davis, 47, 599 (La.App. 2 Cir. 1/16/13), 108 So.3d 833, writ denied, 13-0381 (La. 9/20/13), 123 So.3d 163 ; Kennon, 781 So.2d 734.

This pro se assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment of error, defendant argues the trial court erred in accepting a non-unanimous jury verdict.

Defendant argues he was denied his due process by the trial court's instruction to the jury regarding a non-unanimous verdict. Specifically, defendant contends that LSA-C.Cr.P. art. 782A and the Louisiana Constitution provision for non-unanimous jury verdicts violate the Fourteenth Amendment's Equal Protection Clause of the United States Constitution. According to defendant, the enactment of LSA-Const. art. I, § 17 (A) was motivated "by an express and overt desire to discriminate against blacks on account of race" and has had a racially discriminatory impact since its adoption.

Eleven of the twelve jurors found defendant guilty of both molestation of a juvenile and aggravated rape. It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. A party must raise the unconstitutionality in the trial court, the unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709, 718-19. In the instant case, defendant failed to raise his challenge to Louisiana Constitution Article I, § 17 (A) in the trial court. Accordingly, the issue is not properly before this court.

We nevertheless address the issue. Louisiana Constitution article I, § 17 (A) and Louisiana Code of Criminal Procedure article 782A provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 4 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La. 1982) ; State v. Shanks, 97-1885 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 164-65. See also State v. Smith, 06-0820 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, 15-16, writ denied, 07-0211 (La. 9/28/07), 964 So.2d 352 ; State v. Caples, 05-2517 (La.App. 1 Cir. 6/9/06), 938 So.2d 147, 156-57, writ denied, 06-2466 (La. 4/27/07), 955 So.2d 684.

Defendant also asserts in his brief that Louisiana's non-unanimous jury verdict scheme violates equal protection because racial discrimination was a substantial factor behind the enactment of the constitutional provision. According to defendant, Louisiana adopted its non-unanimity rule in its 1898 constitutional convention as part of an effort "to perpetuate the supremacy of the Anglo-Saxon race in Louisiana."

Our supreme court in State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738, addressed this issue several years ago: "Finally, defendants argue that the use of non-unanimous verdicts have an insidious racial component, allow minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed." Id. at 742. The Bertrand Court found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Id. Regarding the equal protection argument that such verdicts have an insidious racial component, the Bertrand Court noted that the issue had already been decided as meritless by a majority of the United States Supreme Court in Apodaca . Id. at 743.

Thus, while Apodaca was a plurality rather than a majority decision, the United States Supreme Court, as well as other courts, has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 6 So.3d at 742-43. Thus, Louisiana Constitution article I, § 17 (A) (or LSA-C.Cr.P. art. 782A) is not unconstitutional and, therefore, not in violation of defendant's constitutional rights. See State y. Hammond, 12-1559 (La.App. 1 Cir. 3/25/13), 115 So.3d 513, 514-15, writ denied, 13-0887 (La. 11/8/13), 125 So.3d 442, cert. denied, 572 U.S. 1090, 134 S.Ct. 1939, 188 L.Ed.2d 965 (2014).

This pro se assignment of error is without merit.

SENTENCING ERROR

Whoever commits the crime of aggravated rape (redesignated as first degree rape) shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 14:42D(1). According to the sentencing transcript and the minutes, the trial court failed to provide that the sentence for aggravated rape be served at hard labor. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, LSA-C.Cr.P. art. 920(2) authorizes consideration of such an error on appeal. Further, LSA-C.Cr.P. art. 882A authorizes correction by the appellate court.

We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not simply amend the sentence. See State v. Price, 05-2514 (La.App. 1 Cir. 12/28/06), 952 So.2d 112 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277. Accordingly, since a sentence at hard labor was the only sentence that could be imposed, we correct the sentence by providing that it be served at hard labor. See State v. McGee, 08-1076 (La.App. 1 Cir. 2/13/09), 2009 WL 390809 (unpublished). We remand to the trial court for correction of the minutes and, if necessary, correction of the commitment order.

CONCLUSION

For the foregoing reasons, we affirm defendant's convictions and sentence for molestation of a juvenile, amend defendant's life sentence for aggravated rape by providing that it be served at hard labor, and affirm as amended. We also remand for correction of the minutes and, if necessary, correction of the commitment order.

CONVICTION AND SENTENCE FOR MOLESTATION OF A JUVENILE AFFIRMED; LIFE SENTENCE FOR AGGRAVATED RAPE AMENDED BY PROVIDING IT BE SERVED AT HARD LABOR AND AFFIRMED, AS AMENDED. REMANDED FOR CORRECTION OF THE MINUTES AND, IF NECESSARY, CORRECTION OF THE COMMITMENT ORDER.

HIGGINBOTHAM, J. concurs.

      The victim is referred to by her initials. See LSA-R.S. 46:1844W.

      S.W. repeated the first grade school year.

      It was an 11 to 1 verdict for both counts 1 and 3.

      In Bertrand , the supreme court only considered Article 782, while defendant in the instant case attacks Article I, § 17(A) itself. We find this approach to be a distinction without a difference, because Article 782 closely tracks the language of Article I, § 17(A).

      An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. LSA-C.Cr.P. art. 882A.