author: LILJEBERG, J.

text:
    STATE of Louisiana v. Willard ANTHONY
    NO. 17-KA-372
    Court of Appeal of Louisiana, Fifth Circuit.
    February 20, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, Douglas W. Freese, Gretna, Lindsay L. Truhe
    COUNSEL FOR DEFENDANT/APPELLANT, WILLARD ANTHONY, Letty S. Di Giulio, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant appeals his convictions and sentences for several felony offenses. For the following reasons, we vacate defendant's convictions and sentences, and we remand the case to the trial court for a new trial.

STATEMENT OF THE CASE

Defendant, Willard Anthony, was convicted by a jury of aggravated rape (two counts), human trafficking, second degree battery, aggravated battery, sexual battery, and felon in possession of a firearm. The trial court sentenced defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for each count of aggravated rape, to twenty years imprisonment at hard labor for human trafficking, to ten years imprisonment at hard labor for second degree battery, to ten years imprisonment at hard labor for aggravated battery, to ten years imprisonment at hard labor for sexual battery, and to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for felon in possession of a firearm. The trial court ordered all sentences to run concurrently with each other. Defendant appeals his convictions and sentences.

FACTS

C.W. testified that in April 2015, she was addicted to drugs and "not living a good lifestyle." In order to make money, she was working as a prostitute in Florida, where she first met defendant at a motel in Pensacola. He invited her back to his room, where there were three other women who were also prostitutes. C.W. described that they were all hanging out and drinking, and at some point, defendant, who always kept a gun on him, started "acting really paranoid," picked her up, and "body slammed [her]." C.W. remembered going to sleep at the end of the bed that night but waking up the next day in a car not knowing how she got there. She questioned defendant, who was driving, and he told her they were in New Orleans. C.W. expressed that she wanted to go back to Pensacola, but defendant pointed a gun at her and told her that she was "part of [his] family now."

C.W. stated that after they arrived at a hotel in New Orleans, co-defendant, Pierre Braddy, posted pictures of her and the other women online in order to get clients. The next day, they went to a hotel in Jefferson Parish. C.W. had a solo client appointment so everyone else waited in the car in the parking lot. C.W. testified that she wanted to get away, so she asked the "john" to help her escape. She told defendant that she wanted to leave with the john to make more money, but he said she could not go. C.W. told defendant she was going to tell the client goodbye, but instead, she got in his car and told him to "just go." C.W. and the client pulled out on the highway, but defendant pulled up next to them and pointed his gun at them. C.W. jumped out of the car and started to run, but defendant caught up with her and pulled her back into the car he was driving. C.W. testified that the "girls" started hitting her in the car. Defendant beat her with a belt in the hotel parking lot, at one point strangling her, and she lost consciousness.

When they got back to the hotel room, C.W. took a shower because she was bleeding, but defendant came in and continued to beat her. Defendant continued to verbally antagonize her and hit her with various objects, including his gun. C.W. also testified that defendant made the other girls hit her. She further testified that at the request of defendant, who was armed with a gun, Braddy urinated on her, put his penis in her mouth, and made her swallow the urine. After a while, defendant directed Braddy and the other girls to go to Walmart to buy makeup for C.W. so she could continue to make money.

C.W. testified that while she and defendant were alone in the hotel room, he told her various things that would happen to her if she ever tried to run again. Then, he "forced himself" on her and also inserted his gun into her vagina.

At some point later, Detective Steven Abadie arrived in connection with his investigation, and he was initially undercover as a client. C.W. eventually learned that Detective Abadie was with the police and he took her to the hospital. She was later brought to the Jefferson Parish Correctional Center.

Steven Abadie testified that he was working as a detective with the Jefferson Parish Sheriff's Office Vice Squad in April of 2015. He explained that he investigated prostitution or prostitution-related activities, including human trafficking, and he would go undercover. Detective Abadie went undercover on April 13, 2015, and arranged a "date" with a prostitute at the Sun Suites Inn on Manhattan Boulevard. When he arrived at the hotel room, he encountered Nadia Lee and Brittany Grisby, lying on one of the beds. He also saw C.W., who "was sitting...on her knees and...she was beat." He testified that he had "never seen somebody beat like this," so he knew "there was a pimp involved." He elaborated that her entire face was swollen, with one eye completely shut and a large laceration over her left eye, and she was "black and blue from head to toe." After Detective Abadie exchanged money with Ms. Lee for a "date," he said the code word and the covering officers came in shortly thereafter.

Detective Abadie brought C.W. to the hospital due to her significant injuries. She disclosed to him how she received her injuries, and based on that, he felt the need to investigate crimes other than prostitution, namely aggravated rape, human trafficking, aggravated battery, and second degree battery.

Nadia Lee testified that she met defendant and Braddy in April 2015 at a hotel in Alabama, and she agreed to travel with them to Florida. She explained that she did not initially know that defendant was a pimp. However, Ms. Lee realized soon after they arrived in Florida that he was a pimp. She testified that they used defendant's phone to set up calls, and he made sure the appointments were set up and that the girls would get to and from where they were working. She stated that defendant decided how much money she would charge for each client and "all the money had to go to [defendant]."

Ms. Lee testified that she first met C.W. one night when C.W. mistakenly knocked on their hotel room door, looking for a "john," and defendant invited her in. According to Ms. Lee, defendant indicated that he wanted C.W. to stay and, after a while, C.W. agreed to stay with them. However, shortly thereafter, defendant started treating C.W. very badly, "like beating her up and choke slamming her." Ms. Lee described that early the next morning, they were leaving the hotel, and she told C.W. that she could come with them or stay in the room. C.W. left with them. The group left in two cars, drove to New Orleans, and started receiving clients at a hotel. After they were "caught" by the police at the New Orleans hotel, they relocated to the Sun Suites Inn on the westbank of Jefferson Parish.

Ms. Lee stated that at some point, C.W. had a "date," and everyone else stayed in the car. When it was over, C.W. came down to the car and told defendant that the client wanted to take her to a bar for some drinks, but defendant told her no. Ms. Lee stated that C.W. walked back to the client, got in his car, and they drove off. Ms. Lee described that they chased after them until they caught up with them. Defendant rolled down his window, pointed his gun at the client's car, and told him to let C.W. out of the car. C.W. exited the car and started running away, but defendant caught her. Ms. Lee and Ms. Grisby started hitting C.W. while she was in the car. Ms. Lee stated that in the parking lot of the hotel, defendant started beating C.W. with his belt.

According to Ms. Lee, once they all returned to the hotel room, defendant was angry and told the women to beat C.W. After they took turns hitting her, defendant continued to beat C.W. with a phone receiver and threw a chair at her. Ms. Lee stated that C.W. was bleeding, and defendant told her to lick the blood off of the floor. After this, Braddy, at the direction of defendant, urinated in C.W.'s mouth and on her face. After all this, C.W. looked "unrecognizable" because of how swollen she was; defendant told the other girls to go to the store to get C.W. some makeup for her face "because she was still going to work." The women left for the store with Braddy, leaving defendant and C.W. in the hotel room for about thirty minutes until they returned. Thereafter, Detective Abadie and other officers arrived in connection with the undercover operation, and they were all arrested.

On cross-examination, defense counsel alluded to an alleged deal between Ms. Lee and the State in exchange for her testimony. While Ms. Lee denied that she received any sort of "deal" from the State in exchange for her testimony, she acknowledged that she had not been charged with any offenses in this matter.

Defendant testified in his own defense. He testified that C.W. came willingly with them to New Orleans in order to make more money working as a prostitute. He similarly testified that C.W., Ms. Lee, and the other women were working as prostitutes at a hotel in Jefferson Parish, but he denied being a pimp. Regarding the incident where C.W. tried to leave in a car with a client, defendant testified that C.W. told him she wanted to go to make more money, but she was moving quickly and he did not know if she was being kidnapped. Defendant admitted that he pursued them and pulled a gun on them. Defendant also testified that once C.W. got out of the client's car, she started running, but he did not know what she was running from. Defendant testified that once they caught her, Ms. Lee and Ms. Grisby started to beat C.W. in the parking lot. Defendant denied hitting C.W. with a gun or putting a gun in C.W.'s mouth. He also denied "doing anything" with C.W. while he was alone with her in the room while the others were at Walmart, but he stated that he did have consensual sex with C.W. one morning. Defendant testified that C.W had multiple opportunities to leave, could have left at any time, and was not forced or coerced into staying with them.

Dr. Mark Perlin, the Chief Executive and Scientific Officer of Cybergenetics, a company that assesses genetic data, was qualified as an expert in the field of interpretation of DNA mixtures and their matched statistics. He analyzed the DNA mixture from a swab taken from the interior of the gun recovered in this case. He was able to conclude that neither C.W., nor defendant, nor Braddy could be excluded as contributors. He further concluded that a match between the swab of the gun and C.W. was 1.17 million times "more probable than a coincidental match" to an unrelated Caucasian person; that the match between the firearm and defendant was 1.59 thousand times "more probable than a coincidental match to an unrelated African American person"; and that a match between the firearm and Braddy was 63.2 trillion times "more probable than a coincidental match to an unrelated African American person."

The jury also heard testimony from the screening prosecutor for this case, Assistant District Attorney Thomas Block. Mr. Block testified that he did not offer Ms. Lee a deal in exchange for her testimony in this matter. Mr. Block's testimony is discussed in detail, infra , as it is the subject of defendant's first assignment of error.

LAW AND DISCUSSION

In his first assignment of error, defendant argues that he was denied his right to a fair trial, to the presumption of innocence, and to confront the actual evidence against him when the prosecution was permitted to elicit extensive and improper testimony from the screening prosecutor in the case. He asserts that the State's case for human trafficking and aggravated rape rested heavily on the testimony of C.W. and Ms. Lee, both of whom posed significant credibility problems. Defendant argues that in order to compensate for this, the State presented the testimony of Thomas Block, the screening attorney who brought this case before the grand jury. Defendant urges that instead of providing brief testimony to establish that Ms. Lee had not been offered a deal in exchange for her testimony, Mr. Block testified extensively about "his own opinions about the merits of the case." He argues that given the credibility problems of the eyewitnesses and the weight the jurors would have naturally given a prosecutor, Mr. Block's testimony was critical to the prosecution's ability to carry its burden of proof. He also argues that in Mr. Block's testimony, he vouched for the credibility of Ms. Lee and C.W., and he expressed his belief that defendant was guilty.

The State first responds with a procedural objection, arguing that defendant did not object to Mr. Block testifying as to defendant's guilt and, thus, this issue has not been preserved for appeal. However, our review of the numerous objections and motions for mistrial made during Mr. Block's testimony, involving objections to hearsay, opinions on the credibility of State witnesses, improper invasion of grand jury proceedings, and relevance, were sufficient to preserve the arguments defendant raises on appeal. The arguments in support of the defense objections necessarily included the issue of opinion testimony regarding defendant's guilt.

The State further responds that Mr. Block's testimony never suggested, nor did defendant show, that his testimony and/or alleged opinions were based, expressly or implied, on evidence outside the record. The State urges that his testimony was not impermissibly based upon something uniquely within his personal knowledge, but on "facts, reports, and forensic evidence." The State further argues that the defense implied that Ms. Lee received favorable treatment and would lie to avoid going to jail, so the State was entitled to rebut this implication with Mr. Block's testimony. Finally, the State contends that if there was error in allowing the testimony of Mr. Block, any such error was harmless.

After Ms. Lee testified, the State called Thomas Block to the stand. Mr. Block testified generally about his job as a screening attorney for the Jefferson Parish District Attorney's Office and how his office decides to charge individuals with a crime following their arrest. He then spoke generally about grand juries, indicating that he presents evidence to a grand jury, which decides whether or not to issue an indictment. Mr. Block testified that he has an obligation not to present what he believes to be perjured testimony to a grand jury. At this point, defense counsel lodged his first objection-"with respect to the witness testifying as to his belief of the credibility or lack of credibility of the witness that testifies before the grand jury ... I don't think it's relevant." The State responded that it was only addressing questions of an earlier witness and "earlier comments during jury selection" where defendant "spoke to the subject matter of a grand jury," and the objection was overruled. The objection, however, continued into a bench conference, where defendant continued to argue that Mr. Block was "endorsing the testimony of this witness because he believes she was telling the truth." The trial court overruled the objection again, and defendant moved for a mistrial, which was denied.

When the prosecutor asked about Mr. Block's obligation to make a full and fair presentation of accurate information to the grand jurors, he stated:

Yes. In fact, the only evidence that I present to a grand jury would be evidence that would be legally admissible in a court of law. I have a responsibility based upon my oath that I have taken to be an Assistant District Attorney as well as an officer of the Court and I take my job very seriously.

Mr. Block agreed that there are "certain instances when a case comes to [him] because there is someone who is facing potential life imprisonment ... [and] there [are] sometimes other individuals who are arrested in connection with the same incident who are facing less serious charges." The State asked Mr. Block how he handles the screening process for those individuals who are not facing life imprisonment. Defendant objected again, arguing "the issue involves grand jury secrecy." The trial court overruled the objection noting that the question did not relate to grand juries.

Mr. Block testified that he screened the charges against the individuals arrested in this matter, and he presented an indictment of defendant and Braddy to the grand jury, but did not file charges against Ms. Grisby or Ms. Lee. The State asked Mr. Block what steps he would take if he believed it was not appropriate to file charges against someone, over defendant's "ongoing objection." Mr. Block testified that, "you have to meet the elements of the offense in order to charge the person and each and every element of the offense must be met beyond a reasonable doubt and to the satisfaction of the trier of fact." He was asked by the State:

Assuming for the moment that this jury has heard sufficient information to persuade them that Nadia Lee committed one or more crimes, including prostitution and battery here in Jefferson Parish, would that information that they are aware of be something that you were aware of when you screened the case?

Mr. Block replied:

Yes, I was aware. I had police reports and I had interviews that the detectives had done with both of the ladies, Ms. Grisby and Ms. Lee, that I was aware of. And based upon the totality of the circumstances as it relates to-

Defense counsel objected to the hearsay nature of this testimony, but was overruled. Mr. Block continued:

Based upon the actions of Willard Anthony, in particular, there is an affirmative defense to the "crimes" quote, unquote-I'll put a quote around "those crimes"-committed by say for instance, Nadia Lee, she has an affirmative defense to the charges of prostitution or say crime against nature insofar as she was a victim of human trafficking as a result of his actions, Willard Anthony's actions.

Defendant then lodged another "ongoing objection."

Mr. Block testified that the reason the Louisiana Legislature enacted law providing an affirmative defense to prostitution and related charges for victims was, "[t]hey understand the victimization and the abuse that victims have to endure at the hands of their pimp's physical, emotional, psychological abuse and they understand that although they may have committed a crime, they did it at the behest of the pimp." Defendant lodged another objection, that Mr. Block was "giving an opinion as to the credibility of Ms. Lee," with the trial court noting that it did not "believe he's giving an opinion." Defendant continued objecting "to hearsay" and that the prosecutor could not "testify personally, his personal opinion based on this." The trial court noted that it did not believe Mr. Block had done that, but the court asked the State to ask a question to prevent a narrative. The State explained Mr. Block was testifying to "explain all the reasons why Ms. Lee and Ms. Grisby were not charged and that none of them had to do with giving either one of them a deal." Defense counsel moved again for a mistrial, which was denied.

Mr. Block continued to explain why charges were not filed against Ms. Lee and Ms. Grisby for the second degree battery of C.W.:

the second degree batteries that both ladies were facing, although they struck the victim, [C.W.], they did so because they were told to do so by Willard Anthony and they recognized that if they did not comply with his demands to beat [C.W.] after he had already beaten her, that they themselves would have sustained beatings.

Defendant objected again based on hearsay, arguing in a bench conference that "he is saying he found her to be credible ... he's commenting that with all of his experience he found her to be a credible-honest witness," "he's already commented on the credibility of at least two of the women," and that Mr. Block was "about to comment on [C.W.'s] credibility." The court overruled the objection. Defendant moved for a mistrial again, which was denied.

The prosecutor then asked Mr. Block what information he had developed during his interview with C.W. that persuaded him to not charge Ms. Lee or Ms. Grisby with battery upon C.W. Mr. Block answered:

That she was-she being [C.W.]-was aware that the only reasons Ms. Grisby and Ms. Lee participated in the battery upon her were as a result of orders by this defendant, Willard Anthony, instructing them to beat her and that if they did not comply with his demands, [C.W.] believed that they would have been beaten as well.

When the prosecutor asked why Ms. Lee and Ms. Grisby were not charged with possession of cocaine, since cocaine was found in the hotel room, Mr. Block explained the difference between actual and constructive possession and then stated:

We know or I knew based upon the investigation that the defendants, Pierre Braddy and Willard Anthony, were using drugs as a means to get the three ladies or the three female victims to commit the crimes for them as it relates to human trafficking.

Mr. Block testified that he did not offer Ms. Lee a deal in return for her testimony. When asked if he had officers take Ms. Lee to a shelter in order to "curry some favor with her," Mr. Block explained:

She's a victim. In no uncertain term, she's a human being. She deserves respect. She deserves protection under the law.
Morally, I don't believe that it would have been right...To turn her back out onto the street to do what? She wanted to get help to get out of the lifestyle that she found herself in, that Willard Anthony took advantage of and perpetuated.
And there was no-other than if you want to say we did the right thing, there was no expectation of a promise or a reward. Ultimately, she was going to have to come before you, ladies and gentlemen, and tell her story and then it would be up to you to determine whether or not you believed her.

Defendant objected again with "an ongoing objection."

On cross-examination, defense counsel attempted to question Mr. Block about the grand jury proceedings in this case. The State's objections were sustained several times regarding questions about specific testimony in the grand jury proceedings, with the trial judge ultimately ruling that she was "going to sustain the objection to all questions regarding the grand jury in this particular case." In a bench conference, defense counsel continued to argue that Mr. Block vouched for the credibility of the witnesses, and the trial court stated:

I disagree with your interpretation of his testimony. He has never vouched for their personal credibility. He has testified as to what he has done regarding the screening process and the affirmative defenses available to these women which went into his determination whether or not to accept charges or not accept charges.
To defeat the cross-examination of Ms. Lee wherein it was implied that there was some deal made with Ms. Lee for an exchange for her testimony, I am, again, going to tell you I will continue to sustain any objection and I am ordering you, at this point, to no longer ask questions about this particular grand jury.

Defendant again moved for a mistrial, which was denied. Cross-examination of Mr. Block then continued. When defense counsel asked if Mr. Block believed Ms. Lee and Ms. Grisby should not be charged in Louisiana based on what he was told, Mr. Block stated:

Based upon the totality of the circumstances, not just other witnesses' testimony, but corroboration of physical evidence located from the scene, physical evidence, as well as ultimately what turned out to be DNA evidence, yes, their statements were corroborated as to this defendant's actions.

When defense counsel asked Mr. Block if he knew anything about C.W.'s failure to notify the police in New Orleans that she had been kidnapped or "forced to prostitute" when she had the opportunity, Mr. Block replied:

I do. I do. I know that Willard Anthony assaulted her with a handgun; threatened to kill her; beat her; strangled her; choked her to the point of unconsciousness. Yeah, I know that she was afraid to come forward and I'm sure the jury, if they haven't heard, they'll hear from her as to the circumstances about when and under what circumstances she finally disclosed to law enforcement.

Defense counsel asked if Mr. Block had questioned C.W. as to why she did not ask the police for help when she was stopped by the police in Gretna and cited for prostitution. Mr. Block explained that he did ask C.W. and:

[S]he explained to me to my satisfaction why she felt that she would not, it would not be in her best interest based upon the treatment that she had endured at the hands of Willard Anthony and Pierre Braddy.
And, of course, I didn't just take her word for it. I looked at other evidence, physical evidence, corroboration, and other witnesses' testimony, being witnesses, being Ms. Lee and Ms. Grisby's testimony as, as it related to what happened to [C.W.] and it made perfect sense to me why she would not tell the police.

Defense counsel then stated that C.W. was not physically abused until after the instances with the police, to which Mr. Block replied, "That is absolutely incorrect."

On redirect, Mr. Block indicated that in addition to reviewing the statements that Ms. Lee, Ms. Grisby, and C.W. made to the police, he had the opportunity to speak with C.W. for several hours. He also indicated there was consistency between what Ms. Grisby and Ms. Lee said in their interviews. Defendant objected "to commenting on testimony we haven't heard," and the trial court directed the State to rephrase its question. Later, Mr. Block testified that if Ms. Lee or Ms. Grisby refused to testify or made themselves unavailable, he would not file charges against them but would seek a material witness warrant.

Defendant challenges several portions of Mr. Block's testimony, stating that he gave extensive testimony in which he vouched for the credibility of C.W. and Ms. Lee, offered improper legal opinions about the merits of the case, and expressed his belief that defendant was guilty, "all while improperly invoking the character and prestige of the D.A.'s office," which denied his rights to a fair trial, the presumption of innocence, and to confront the actual evidence against him.

The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C.E. art. 701 ; State v. Keller , 09-403 (La. App. 5 Cir. 12/29/09), 30 So.3d 919, 930-31, writ denied , 10-267 (La. 9/17/10), 45 So.3d 1041. The general rule is that a lay witness can only testify to the facts within their knowledge and not to impressions or opinions. Id.

With regard to the issue of whether prosecutors are permitted to testify at a trial, the jurisprudence provides that a prosecutor may assume the dual role of witness and advocate only under "extraordinary circumstances." State v. Miller , 391 So.2d 1159, 1162-1163 (La. 1980). When the State is presented with "surprising testimony," appellate courts have allowed the prosecutor to testify as a rebuttal witness. State v. Diaz , 93-1309 (La. App. 3 Cir. 4/6/94), 635 So.2d 499, writ denied , 94-1189 (La. 9/16/94), 642 So.2d 191. The danger in allowing a prosecutor to assume the role of witness is that the jury might give inordinate weight to the prosecutor's testimony. Miller , 391 So.2d at 1162.

In Miller , 391 So.2d at 1162, the Louisiana Supreme Court recognized that a prosecutor may be a competent witness, but it noted that district attorneys should avoid the dual role of prosecutor and witness. "The general rule, governing all lawyers, prohibits testimony by attorneys who are engaged in the trial of the case, (Code of Professional Responsibility, DR 5-101(B), 102) except in isolated circumstances. Even stronger reasons weigh against testimony by a prosecutor." Miller , 391 So.2d at 1163. In Miller , despite the defendant's request that the prosecutor be replaced, the Court found that any possible error in allowing the prosecutor to both testify and remain as prosecutor was harmless. The Court noted that the prosecutor had been called as an impeachment witness and his testimony was cumulative of other witnesses' testimony. See also State v. Rowe , 489 So.2d 1069 (La. App. 1 Cir. 1986) ; State v. Blunt , 449 So.2d 128 (La. App. 4 Cir. 1984).

Courts of this state have also allowed a prosecutor, who was not the prosecuting trial attorney, to testify as an impeachment witness, noting that the prosecutor "did not assume a dual role." See State v. Wilson , 602 So.2d 779 (La. App. 2 Cir. 1992).

In this case, Mr. Block was not the prosecuting attorney at trial and did not assume a dual role. Rather, he was the attorney who screened the case for the District Attorney's Office. Although a prosecutor should only be called as a witness in very exceptional circumstances, we cannot say that it was error to allow Mr. Block to testify in this matter to rebut the defense implication that a State witness, Nadia Lee, was given "a deal" in exchange for her testimony. However, there are limitations to such testimony, and the fundamental rights of the defendant cannot be violated. Our review reveals that Mr. Block's testimony exceeded the scope permissible for a fair and impartial trial.

The right to a fair trial is a fundamental liberty secured by the Sixth Amendment through the due process clause of the Fourteenth Amendment to the United States Constitution. State v. Jones , 98-1165 (La. App. 3 Cir. 2/3/99), 734 So.2d 670, 672 ; State v. Edwards , 591 So.2d 748 (La. App. 1 Cir. 1991), writ denied , 94-452 (La. 6/21/96), 675 So.2d 1072. The presumption of innocence, although not articulated in the United States Constitution, is a basic component of a fair trial under our system of criminal justice. Id. Pursuant to Article I, § 16 of the Louisiana Constitution, every person charged with a crime is presumed innocent until proven guilty and is entitled to an impartial trial. The right to the presumption of innocence is inviolable. Jones , 734 So.2d at 673.

A prosecutor cannot vouch for the credibility of a witness or use the prestige of the District Attorney's Office to bolster its case. State v. Kaufman , 304 So.2d 300 (La. 1974). When a prosecutor vouches for the credibility of witnesses and expresses his personal opinion regarding the guilt of the accused, it poses two dangers: 1) such comments can convey the impression that there is evidence that was not presented to the jury, but known to the prosecutor, to support the charges against the defendant and thus, it can jeopardize the defendant's right to be tried solely on the evidence presented to the jury; and 2) the prosecutor's opinion carries with it the imprimatur of the government and it may induce the jury to trust the government's judgment rather than its own view of the evidence. U.S. v. Young , 470 U.S. 1, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985).

Also, a prosecutor's statement of personal opinion regarding the defendant's guilt or credibility is generally considered error when the statement is made in such a manner that the jury might conclude that the prosecutor's opinion is based on evidence outside the record. However, an expression of the prosecutor's opinion based on evidence within the record is permissible. State v. Weidert , 568 So.2d 1162, 1166 (La. App. 5 Cir. 1990), writ denied , 573 So.2d 1118 (La. 1991) ; State v. Motton , 395 So.2d 1337 (La. 1981), cert. denied , 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981) ; State v. Smith , 461 So.2d 1155 (La. App. 3 Cir. 1984).

In the present case, considering the entirety of Mr. Block's testimony, we find that defendant did not receive a fair trial. Unlike many reported cases in which a defendant claims that the trial prosecutor made improper comments during opening statements, closing arguments, or trial, the present case involves a situation in which the screening prosecutor was called as a witness and provided testimony that covers approximately 70 pages of transcript. Mr. Block did not simply testify regarding the lack of any "deal" with Ms. Lee or other State witnesses in exchange for their testimony. Rather, Mr. Block vouched for the credibility of the State witnesses and improperly commented on defendant's guilt, while using the prestige and dignity of his office to bolster the State's case.

Mr. Block testified before the jury that he has been an Assistant District Attorney in the Jefferson Parish District Attorney's Office since 1997, and he testified regarding some of his professional experience. He also testified regarding the general screening and grand jury processes. We agree that Mr. Block's testimony regarding his qualifications and experience was necessary to establish a foundation for his testimony regarding the screening process. See La. C.E. art. 602. However, during his testimony, Mr. Block continued to emphasize his position as a representative of the government, stating:

[T]he only evidence that I present to a grand jury would be evidence that would be legally admissible in a court of law. I have a responsibility based upon my oath that I have taken to be an Assistant District Attorney as well as an officer of the Court and I take my job very seriously.

In response to the State question as to whether Mr. Block made a deal with Ms. Lee in return for her testimony, Mr. Block replied:

No. In fact, to the contrary. I have a responsibility as I mentioned to you before and an obligation as an officer of the Court and a representative of the people of Jefferson Parish and the State of Louisiana not to just charge someone with an offense that cannot be proved under the law or beyond a reasonable doubt.

Then again, when the State asked if he would prosecute one of the witnesses if they were not able to be located and never came to court testify, Mr. Block said no and then elaborated:

I have, I have a responsibility and obligation as an officer of the Court when I was sworn in in 1993 as a lawyer and then sworn in as a prosecutor to prosecute in good faith pursuant to the laws in the State of Louisiana and take only those cases that we can prove beyond a reasonable doubt, a good faith prosecution, not a bad faith or an [sic] vindictive prosecution which is what that would be. I would never do that.

Defendant complains that Mr. Block improperly vouched for the credibility of the State witnesses, and his testimony could have conveyed the impression that there was evidence not presented to the jury, but known to Mr. Block, to support the charges against defendant. "Attempts to bolster a witness by vouching for his credibility are normally improper and error. The inquiry should be whether the prosecutor's expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused's guilt." United States v. Ellis , 547 F.2d 863, 869 (5th Cir. 1977).

Mr. Block indicated he reviewed the statements made by Ms. Grisby, Ms. Lee, and C.W. to the police, and that he spoke with C.W. for several hours. He also stated that there was consistency between the interviews of Ms. Lee and Ms. Grisby. However, Ms. Grisby did not testify at the trial of this matter.

When defense counsel asked again about why Ms. Lee was not charged with a crime, Mr. Block stated:

Based upon the totality of the circumstances, not just other witnesses' testimony, but corroboration of physical evidence located from the scene, physical evidence, as well as ultimately what turned out to be DNA evidence, yes, their statements were corroborated as to this defendant's actions.

While testimony and evidence regarding physical and DNA evidence were certainly presented at trial, the jury could have believed that Mr. Block was aware of further evidence that was not presented to the jury. Mr. Block also stated during his testimony that he "knew based on the investigation" that defendant used drugs as a means to get the victims "to commit the crimes for them as it relates to human trafficking."

The record further shows that Mr. Block expressed his opinion as to defendant's guilt. Mr. Block repeatedly referred to Ms. Lee and C.W. as victims of defendant. He stated that although Ms. Lee and Ms. Grisby struck C.W., "they did so because they were told to do so by Willard Anthony" and they knew they would sustain beatings if they did not comply with his demands. He also stated that "[b]ased on the actions of Willard Anthony," Ms. Lee had an affirmative defense to the prostitution charges, "insofar as she was a victim of human trafficking as a result of his actions, Willard Anthony's actions." He further stated:

I know that Willard Anthony assaulted her with a handgun; threatened to kill her; beat her; strangled her; choked her to the point of unconsciousness. Yeah, I know that she was afraid to come forward. (Emphasis added.)

Also, when questioned by defense counsel as to why C.W. did not ask the police for help, Mr. Block stated:

[S]he explained to me to my satisfaction why she felt that she would not, that it would not be in her best interest. Let's just say, it would not be in her best interest based upon the treatment that she had endured at the hands of Willard Anthony and Pierre Braddy.

When defense counsel stated that C.W. was not physically abused until after "those instances with the police," Mr. Block replied, "That is absolutely incorrect."

Based on the foregoing, we find that the trial court erred by allowing Mr. Block to testify beyond what was necessary to rebut the defense's implication that Ms. Lee was given a "deal" in exchange for her testimony. The testimony regarding defendant's guilt and Ms. Lee and C.W.'s credibility, coupled with the emphasis on Mr. Block's position as a prosecutor and a representative of the citizens of Jefferson Parish and the State of Louisiana, infringed on defendant's presumption of innocence and prevented him from receiving a fair trial.

The State argues that even if portions of Mr. Block's testimony were improper, any error in its admissibility was harmless, considering the overwhelming evidence of defendant's guilt. The Louisiana Supreme Court has adopted the federal test for harmless error announced in Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as refined by Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which asks whether the guilty verdict rendered in this trial was surely unattributable to the error. State v. Thompson , 15-886 (La. 9/18/17), 233 So.3d 529, 561. However, there are exceptions to the harmless error rule because some constitutional rights are so basic to a fair trial that the violation of those rights can never be considered harmless error. Thompson , 233 So.3d at 561, citing Weaver v. Massachusetts , --- U.S. ----, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017).

Before applying a harmless error analysis, it must be determined if the error complained of is a trial error or a structural error. Jones , 734 So.2d at 673.

A "trial error" is one which occurs during the presentation of the case to the jury and can be quantitatively assessed in the context of other evidence presented to prove guilty. A "structural error" affects the framework within which the trial proceeds, rather than an error in the trial process. It defies harmless error standards and cannot be quantitatively measured.

Jones , 734 So.2d at 673, citing Arizona v. Fulminante , 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

The purpose of the structural error doctrine is to ensure the insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thompson , 233 So.3d at 561.

In Jones , supra , the appellate court found that a prosecutor's comments during argument were improper and violated the defendant's constitutional right to the presumption of innocence. The Court noted that although not every violation of a constitutional or statutory right requires reversal of a conviction, some rights are so basic to a fair trial that their infraction cannot ever be treated as harmless error, including the presumption of innocence. Jones , 734 So.2d at 673. The Court stated, "[t]he right to the presumption of innocence is sancrosanct; it is inviolable." Id.

Because the errors in the present case violated defendant's right to a fair trial and the presumption of innocence, we find that they are structural errors affecting the framework of the trial to which harmless error standards cannot be applied. Accordingly, finding that defendant has not received a fair trial in this matter, as guaranteed by the laws of this state and our country, we vacate defendant's convictions and sentences on all counts and remand for a new trial.

Considering our decision to vacate defendant's convictions and sentence, we pretermit discussion of defendant's remaining assignments of error.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Considering our decision to vacate defendant's convictions and sentences, our review reveals no errors requiring corrective action at this time.

DECREE

For the foregoing reasons, we vacate defendant's convictions and sentences on all counts, and we remand to the trial court for a new trial.

CONVICTIONS AND SENTENCES VACATED; REMANDED FOR NEW TRIAL

      To observe the principle of protecting minor victims and victims of sex offenses set forth in La. R.S. 46:1844(W), the victim will be identified by initials only.

      During Ms. Lee's cross-examination, the following exchange occurred:
      Q: Okay and when this case is over...when the jury makes a decision based, based part, part on your testimony at this point, what do you expect to happen to you?
      A: I do not know. In regards to what?
      Q: Well, let me see. There's prostitution, at least two situations...[w]hat's to happen to you with respect to the prostitution charges, both of those?
      A: I mean, if I have to deal with them, then I have to deal with them, my past so.
      Q: What is to happen to you with respect to the cocaine you had?
      A: I have to deal with it.
      Q: I see. And, and what is to happen to you with respect to the armed robbery?
      A: I'm, actually, in the motions of working on that now.
      * * *
      Q: And, and I think a fair question to you is: You certainly expect the District Attorney's Office to help you with all that, correct?
      A: No.
      Q: You don't?
      A: No.
      Q: Think about it. You-
      A: They told me they didn't, no.
      Q: They don't-they talked about that with your lawyer. Do you know what they told your lawyer?
      * * *
      A: I'm assuming the same thing they told me.
      Q: What's that?
      A: Was that they would, they would tell them facts but that's it, that they couldn't help me in any way and they didn't have a personal opinion on what should happen to me.
      * * *
      Q: All this time your lawyer hasn't told you what the penalties [for possession of cocaine, two counts of prostitution, for a principal in an armed robbery in Florida] are? Come on. Are you telling them the truth?
      A: Yeah.

      Although case law citing improper comments of a prosecuting attorney does not directly apply where the prosecutor was not called as a witness, such cases offer guidelines by which the screening prosecutor's testimony in this case can be evaluated.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Julia Ann WASHINGTON, Appellant
    No. 52,518-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    LOUISIANA APPELLATE PROJECT, By: Paula Corley Marx, Counsel for Appellant
    ROBERT STEPHEN TEW, Monroe, District Attorney, GEARY STEPHEN AYCOCK, West Monroe, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   STONE, J.

In this criminal case, the defendant, Julia Ann Washington ("Washington"), pled guilty to manslaughter and was sentenced to 38 years of imprisonment at hard labor. The trial court denied Washington's timely motion to reconsider sentence. Washington now appeals and argues that her sentence is excessive. For the following reasons, we affirm Washington's conviction and sentence.

FACTS

On July 29, 2015, Washington repeatedly stabbed the victim, Carl Grant, in the arm. Approximately 5 days later, on August 3, 2015, Carl Grant sat outside his house while drinking beer with his neighbor, Larry Kelly ("Kelly"). Washington approached the house and started an argument with Carl Grant. Kelly went across the street to his house. From there, Kelly saw Washington throw gasoline on Carl Grant and set him on fire. Kelly ran back to Carl Grant's house, ripped off the burning shirt, and helped extinguish the fire. Washington said "you can call 9-1-1 for that M-Fer" and fled the scene without rendering aid.

Carl Grant sustained second and third degree burns on 20 to 30% of his body-primarily to his face, torso, and arms. After undergoing numerous skin grafts and other surgeries, he died of organ failure due to sepsis on August 22, 2015.

Meanwhile, Washington fled the state, and was subsequently arrested in Massachusetts. She was charged with: (1) two counts of aggravated battery, and (2) one count of second degree murder. She entered a plea of not guilty and not guilty by reason of insanity. Over the course of the proceedings, the trial court appointed two sanity commissions, both of which determined that Washington was competent to proceed and that she was capable of discerning right from wrong at the time that she set Carl Grant on fire with gasoline.

On February 12, 2018, pursuant to a plea agreement, Washington pled guilty to the reduced charge of manslaughter in exchange for the State's dismissal of the two counts of aggravated battery. The plea agreement did not cover sentencing. Prior to entering the guilty plea, Washington was informed of and waived her rights in accordance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court ordered a presentence investigation ("PSI") report.

On June 14, 2018, after reviewing the PSI report, the trial court sentenced Washington to 38 years of imprisonment at hard labor. Washington filed a motion to reconsider sentence, arguing that her sentence was constitutionally excessive and that the trial court should give greater weight to her efforts to reform herself since the offense. The trial court denied the motion, stating that it had considered the applicable mitigating factors including Washington's remorse as well as her rehabilitative efforts. The trial court found that any lesser sentence would deprecate the seriousness of the offense. In so doing, the trial court cited Washington's horrific act of setting Carl Grant on fire with gasoline and the unspeakable pain he suffered as a result - as well as several instances of Washington's prior violent conduct, anger issues, and drug and alcohol abuse. This appeal followed.

DISCUSSION

On appeal, the defense argues that Washington's 38-year sentence is excessive and the equivalent of a life sentence for this 52-year-old offender. The defense asserts that the trial court failed to give sufficient weight to Washington's personal history and rehabilitative efforts since the offense, and claims that although Washington committed violent acts in the past, she is only a first-felony offender, is remorseful, and has a history of substance abuse and mental health issues.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness: (1) whether the trial court properly took cognizance of the factors set forth in La. C.Cr.P. art. 894.1 ; and (2) whether the sentence is constitutionally excessive under La. Const. art. I § 20.

As previously stated, we must first determine whether the record shows that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 16-0959 (La. 5/1/17), 219 So.3d 332. Articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry , supra .

The La. C.Cr.P. art. 894.1 factors to be considered include the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry , supra . There is no requirement that any specific factor be given any particular weight at sentencing. State v. DeBerry , supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 07-0144 (La. 9/28/07), 964 So.2d 351.

Second, this court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

The trial court has broad discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 1/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and therefore, is given broad discretion in sentencing. State v. Allen , supra . On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

Generally, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 4/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/8/13), 125 So.3d 445.

The defendant's receipt of a substantial advantage via plea bargain is an appropriate consideration in sentencing. State v. Mendenhall , 48,028 (La. App. 2 Cir. 5/15/13), 115 So.3d 727 ; State v. Ross , 35,552 (La. App. 2 Cir. 2/27/02), 811 So.2d 176. Accordingly, where the defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in sentencing exposure through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Givens , 45,354 (La. App. 2 Cir. 6/23/10), 42 So.3d 451, writ denied , 10-1584 (La. 1/14/11), 52 So.3d 902 ; State v. Germany , 43,239 (La. App. 2 Cir. 4/30/08), 981 So.2d 792 ; State v. Black , 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 9/20/96), 679 So.2d 430.

Manslaughter is punishable by imprisonment at hard labor for not more than 40 years. La. R.S. 14:31. In contrast, second degree murder carries a penalty of "life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence." La. R.S. 14:30.1

The trial court did not abuse its discretion in sentencing Washington to 38 years of imprisonment at hard labor. The trial court considered the PSI report and the applicable sentencing factors, and provided detailed reasons for the sentence imposed. The trial court correctly found that Washington is a worst offender. Pouring gasoline on Carl Grant's face and torso and setting him on fire was cruel, depraved, and horrific. Doubtlessly, he suffered unimaginable pain. As the trial court noted, Washington fled the scene and the state. The trial court noted that the facts of this case were sufficient to convict Washington of second degree murder. Therefore, she substantially benefited from the plea agreement by avoiding a mandatory life sentence.

Although Washington is a first-felony offender, she has a significant criminal history. The trial court noted her prior convictions for cruelty to a juvenile in 2004 and aggravated domestic abuse battery in 2013. Additionally, Washington has a history of violent conduct that goes beyond her criminal convictions. She previously threatened to sever another boyfriend's genitals with a knife, and stabbed Carl Grant in the thigh. Five days before setting Carl Grant on fire, she repeatedly stabbed him in the arm, but he never reported it to law enforcement.

In mitigation, the trial court noted that Washington, while incarcerated, has expressed remorse and acceptance of responsibility for her actions. Since she has been incarcerated, she has accepted Christ into her life and is working toward her GED. In reviewing Washington's personal and social history, the trial court noted that Washington is the mother of nine children, none of whom are dependent on her, and that she has no significant work history. The trial court considered numerous letters supporting Washington that her family and friends submitted on her behalf.

In addition, the trial court considered Washington's history of substance abuse and mental health issues. Although she was sober due to her incarceration, Washington has been using drugs since 1988, and at the time of sentencing had substance abuse issues with crack cocaine, marijuana, PCP, and alcohol. She has been in and out of substance abuse treatment and has received mental health treatment for the last 10 years. The trial court noted its review of the sanity commission reports, wherein the doctors found: (1) that Washington was capable of assisting counsel with her defense, and (2) that she could discern right from wrong at the time of setting Carl Grant on fire with gasoline.

The trial court gave sufficient weight to each of the applicable aggravating and mitigating factors and the record adequately supports the sentence imposed. Furthermore, Washington's near maximum 38-year sentence is not constitutionally excessive. She poured gasoline on Carl Grant and set him on fire five days after repeatedly stabbing him in the arm. Considering the horrific nature of Washington's actions in the present case, her history of crime, and the benefit she received from the plea agreement, the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This appeal is without merit.

CONCLUSION

For the foregoing reasons, Julia Ann Washington's conviction and sentence are affirmed.

AFFIRMED.

      The investigation also revealed that she had previously stabbed Carl Grant in the leg.

      Thus, Washington went to great lengths to escape being held responsible for her burning Carl Grant alive, until she was caught by Massachusetts law enforcement - and therefore had virtually no more chance to escape that responsibility. It appears likely that Washington's supposed acceptance of responsibility is motivated at least in part by her desire to minimize the punishment she receives - rather than genuine contrition.


author: MCCALLUM, J.

text:
    Ron FLOWERS, Plaintiff-Appellee v. Adrian Roberson FLOWERS, Defendant-Appellant
    No. 52,506-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    WALTER D. WHITE, APLC By: Walter D. White, Counsel for Appellant
    DAVIS LAW OFFICE By: S.P. Davis, Counsel for Appellee
    Before WILLIAMS, GARRETT, and McCALLUM, JJ.
   MCCALLUM, J.

In this community property partition case, Adrian Flowers appeals the judgment of the trial court asserting two errors: (1) the trial court erred when it failed to take into consideration the payments she made, offsetting such credits against the value of the property at issue; and (2) the trial court erred when it considered trial testimony about the value of the property. As to her first error, she essentially contends that the trial court erred in denying her a reimbursement for the mortgage payments that she made toward the community home.

Ron Flowers has answered the appeal, arguing that if this Court were to allow her reimbursement, then he would assign the following error: the trial court erred by not allowing his evidence of child support payments made to Adrian Flowers for children he alleges were not his. Ultimately, Ron Flowers argues that if we reverse the trial court's denial of Adrian Flower's reimbursement claim, then he too is entitled to a reimbursement claim, or at the least, entitled to have his evidence considered for such.

For the following reasons, we affirm the trial court's judgment.

FACTS

Adrian Flowers ("Adrian") and Ron Flowers ("Ron") married on January 11, 1992. In July of 2000, the parties purchased a piece of immovable property for $ 21,000.00. The parties made a down payment of $ 4,000.00 and financed the remaining $ 17,000.00 at an interest rate of twelve percent.

In 2002, the parties purchased a mobile home. The mobile home was moved onto the land. The price of the home was $ 8,995.00. The parties paid $ 1,000.00 as a down payment and financed the remainder.

Neither party disputes that community funds were used to make the down payments and the monthly payments, for both the land and mobile home, until the day of divorce. The land and mobile home are the only community property in dispute and we shall henceforth refer to them collectively as the "home."

Ron filed for divorce and incidentals on January 12, 2004. In his pleading, he sought exclusive use of the community home and a Ford Bronco. He also requested DNA testing of a child for whom he paid child support to Adrian and the ability to claim the child tax credit. The Court granted the judgment of divorce on October 6, 2004. On October 21, 2004, a hearing officer recommended that Ron pay child support and that the children and Ron be ordered to complete DNA testing.

On October 8, 2008, four years after the judgment of divorce, and after the parties failed to amicably partition the community, Adrian filed a petition for judicial partition. She included a detailed descriptive list indicating the equity in the home at $ 17,000 and the liability at $ 12,951.09. Notably, she failed to include any claims for reimbursement within her petition or her detailed descriptive list.

Ron answered on December 8, 2008, wherein he listed the total value of the community assets at $ 46,000.00 with a debt of $ 12,489.75. He claimed two reimbursements:

(1) $ 1,750.00 he allegedly paid to movers on behalf of the community; and (2) $ 5,000.00 for alleged improvements to the home. Thereafter, Adrian traversed Ron's detailed descriptive list on February 11, 2009, reciting her previous list for the community value of the home in question as $ 17,000.00 with a community liability of $ 12,951.09.

Six years after filing her traversal, on August 18, 2015, Adrian amended her detailed descriptive list. She listed the value of the land at $ 17,000.00 and the value of the mobile home at $ 8,000.00, for a total home value of $ 25,000.00. She listed no liabilities, no reimbursements and cited a "value of ½ total" of $ 12,500.00. Four months later, Ron answered with a detailed descriptive list setting the value of the home at $ 35,000.00 in total, with no community liabilities and no claims for reimbursement.

Prior to trial, the parties filed pretrial briefs in support of their positions. Adrian alleged that she alone had made all of the mortgage payments, using her separate funds, from the time of the divorce until the final payment was made. She further asserted that Ron did not claim any rental reimbursement. She contended that a 2016 appraisal of the home for $ 35,000.00 was accurate. Ron argued that he could not pay mortgage notes because he was paying child support to Adrian for a child that was not his own. He listed the home with a value of $ 40,000.00, arguing each party should receive one-half the value, $ 20,000.00.

The parties first appeared in court on January 26, 2018, before the Honorable Judge Robert P. Waddell. At that time, the trial court noted that only two issues were present within the case: (1) the value of the home and (2) any rental reimbursement claimed by Ron. The Court, after speaking to the attorneys and reviewing the record, noted that no reimbursement claims had been filed into the record. The court, being ever prescient, stated, with regard to the parties having not filed any claim for reimbursement, "you're out the window." The trial court concluded that neither party was ready for trial and set a second date for the parties to return to court.

The parties returned to court on March 15, 2018, and a trial was held before the Honorable Judge Roy Brun. The court, with the attorneys' agreement, concluded that the only issue before the court was the value and apportionment of the home. Eventually, both parties agreed that the ownership of the home was to be awarded to Adrian.

The parties could not agree to the value of the home. Adrian argued that a 2016 appraisal of the home for $ 35,000.00 was appropriate. She also objected to any new testimony as to the value. Ron maintained his $ 40,000.00 value for the home, conforming to the testimony of his appraiser at trial. The court found the property to have a value of $ 36,400.00. Accepting Adrian's 2016 valuation of $ 35,000.00, the court then added two percent per year to the value ($ 1,400.00), for the total of $ 36,400.00. The court awarded both parties one-half of the value of the home. This latter issue germinated a new issue.

The court had previously determined that Ron had failed to file any claim for reimbursement with regard to rental monies from the home. The court further determined that neither party had any claims for reimbursement filed or pending. Adrian, however, argued that the court should award any equity added to the home post judgment of divorce to her alone. Both parties agreed and admitted that Adrian had paid all mortgage payments from the time of the divorce to the time that the debt was paid in full. Ron, however, contended that the home value should be split one-half, since neither party had filed a claim for reimbursement.

Thereafter, the court again concluded that neither party had filed for or requested any claims for reimbursement. The court asked the attorneys on the record if either one of them had reimbursement claims. Ron's attorney noted that both parties had already agreed twice that neither party had any claim. Adrian's attorney further stated, "We don't have a claim." Thus, the court concluded the trial by denying any and all claims for reimbursement by the parties. The judge signed and filed the judgment in accordance with the home value finding of $ 36,400.00 and the denial of any and all claims for reimbursements.

Subsequently, Adrian filed this appeal. She asserts that the trial court erred when (1) it failed to take into consideration the payments made by her; and (2) it improperly allowed an appraiser to testify contrary to the order of Judge Waddell, and improperly used the expert's testimony to value the home at issue.

If we find that Adrian was entitled to her claim for reimbursement, then Ron argues that the trial court erred when it precluded his testimony and evidence for his reimbursement claim. As we are affirming the decision of the trial court, we need not address the error in the alternative, asserted by appellee.

DISCUSSION

"It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. A trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Factual findings and credibility determinations made by the trial court in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error." Politz v. Politz , 49,242 (La. App. 2 Cir. 9/10/14), 149 So.3d 805 ; (citing Clemons v. Clemons , 42,129 (La. App. 2 Cir. 5/9/07), 960 So.2d 1068, writ denied , 2007-1652 (La. 10/26/07), 966 So.2d 583 ; Mason v. Mason , 40,804 (La. App. 2 Cir. 4/19/06), 927 So.2d 1235, writ denied , 2006-1524 (La. 10/13/06), 939 So.2d 366.).

"Absent manifest error, a trial court's factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in order to partition community property may not be set aside on appeal. The trial court's choice of one expert's method of valuation over that of another will not be overturned unless it is manifestly erroneous." Darden v. Darden , 48,971 (La. App. 2 Cir. 5/14/14), 139 So.3d 33 ; Ellington v. Ellington , 36,943 (La. App. 2 Cir. 3/18/03), 842 So.2d 1160 (internal citations omitted).

The court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. La. R.S. 9:2801(A)(2). The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.

La. R.S. 9:2801(A)(4)(a). The court shall divide the community assets and liabilities so that each spouse receives property of an equal value. La. R.S. 9:2801(A)(4)(b). The court shall allocate or assign to the respective spouses all of the community assets and liabilities. La. R.S. 9:2801(A)(4)(c). If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. La. C.C. art. 2365.

Adrian complains that the trial court incorrectly valued the home in question. In valuing it, however, the trial court considered and ultimately selected the appraisal from 2016, to which Adrian stipulated. Thereafter, the trial court increased the value of the home by four percent, two percent for each year since 2016. The trial court increased the value in accordance with La. R.S. 9:2801(A)(4)(a) which mandates that the trial court value the assets as of the time of trial on the merits. We therefore find no manifest error by the trial court in its valuation of the home.

Adrian further asserts that the trial court erred when it failed to award her the full value of the home. As noted supra , the parties stipulated that the trial court would award ownership of the home to Adrian. Therefore, Adrian would owe Ron one-half the value of the home, as it was clearly community property. Adrian, however, argues that because she paid the mortgage with her separate funds after the judgment of divorce was rendered, the trial court should have denied Ron any award for the home. In essence, she argues for a reimbursement claim in her favor, in accordance with La. C.C. Art. 2365. Ron counters that because Adrian failed to file any such claim, she is therefore not entitled to a reimbursement.

In Jemison v. Timpton , 2009-1166 (La. App. 4 Cir. 5/6/10), 38 So.3d 1021, 1028-29, the Fourth Circuit Court of Appeal considered a similar issue. That court stated the following, to-wit:

Appellant's sworn descriptive list, however, was comprised only of immovable property, movable property, and separate property; notably, the list failed to include any liabilities or reimbursement claims. Furthermore, Appellant did not seek to amend this list at any time between the date of filing on April 21, 2008, and trial on October 28, 2008. Accordingly, as articulated in the Reasons for Judgment, the trial court disallowed the introduction of alleged reimbursement claims because Appellant failed to properly place such claims at issue[.]

Furthermore, in Godwin v. Godwin , 533 So.2d 1009, 1011 (La. App. 1 Cir. 10/12/1988), writ denied , 537 So.2d 1165 (La. 1989), the First Circuit Court of Appeal affirmed a trial court's refusal to consider reimbursement evidence and claims where the party failed to include such claims in his detailed descriptive list. Additionally, in Mathews v. Mathews , 457 So.2d 746 (La. App. 2 Cir. 09/26/84), this court affirmed a trial court's decision to deny consideration of appellant's reimbursement claims which he untimely filed prior to trial. We note that in the case sub judice , Adrian never filed any claim for reimbursement, timely or untimely.

After reviewing the petition and the detailed descriptive list, filed in 2008, as well as Adrian's traversal filed in 2009, the trial court concluded that Adrian had failed to file any claim for reimbursement. Furthermore, we note a similarity to the case cited supra , Jemison v. Timpton , wherein that court affirmed the trial court's denial of a reimbursement claim where the party failed to include such a claim in the detailed descriptive list. In this case, not only did Adrian fail to include any claim for reimbursement in her petition or original detailed descriptive list, but she further failed to do such in a traversal she filed in 2009 and within her amended detailed descriptive list, filed in 2015. Not once did Adrian file or claim a reimbursement between the time the trial court rendered the judgment of divorce in 2004 until the date of trial on March 15, 2018. Adrian had ample time to claim such, yet she failed to include a claim in any of her filings. Simply put, Adrian failed to place any claim for reimbursement at issue for the trial court to consider.

The trial court, on numerous occasions, asked if any claims for reimbursement were before the court. Attorneys for both parties repeatedly informed the trial court that no claims for reimbursement were at issue. The parties continually stated that the only issue before the court was the value and apportionment of the home. The trial judge then found a value for the home, awarded the home in ownership to Adrian, awarded one-half the value of the home to Ron and denied any claims for reimbursement. We therefore find that the trial court did not err in denying any and all claims for reimbursement.

CONCLUSION

The judgment of the trial court is AFFIRMED. All costs of this appeal are assigned to the appellant.

      We note that the same may be said for Adrian. Although she asked that the trial court not award a reimbursement of one-half of the home to Ron, she also never declared or asserted a claim for any reimbursement whatsoever. In fact, it would be a mischaracterization of the issue to imply that the matter before this Court is a denied claim of reimbursement by Ron. The issue before us is simply whether the trial court erred in denying Adrian's reimbursement claim when it denied "any and all" claims for reimbursement.

      Having thus decided the issue before the court, it is unnecessary to enter into a consideration of the equity of allowing such a claim to be placed before this court without allowing the opposing party an opportunity to fully defend the claim at the trial court level. For instance, an exception for prescription cannot be provided by the court. La. C.C.P. art. 927(B).


author: STEPHENS, J.

text:
    Donnette KOERTGE, Individually and on Behalf of the Minor Child, Lauren Koertge, Plaintiff-Appellant v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, the Mane Design, LLC, and Marlaina Free, Defendants-Appellees
    No. 52,503-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019.
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP, By: Steven E. Soileau, Ann Rene Shores, Shreveport, Counsel for Appellant
    ZELDA W. TUCKER, Shreveport, Counsel for Appellees
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   STEPHENS, J.

Plaintiff, Donnette Koertge, individually and on behalf of her minor daughter, Lauren Koertge, appeals a judgment in the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, awarding damages in favor of Plaintiff and against State Farm Fire & Casualty Insurance Company, The Mane Design, LLC, and Marlaina Free ("Defendants"). For the following reasons, we affirm in part and amend in part the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

This matter arises out of the injury to the minor child, Lauren Koertge, who sustained a third degree chemical burn to the back of her scalp after having her hair highlighted at a salon in Bossier City, Louisiana, on July 21, 2015. She was 14 years old at the time. Lauren's mother, Donnette Koertge, filed a petition for damages on behalf of Lauren, as well as herself, against the stylist, Marlaina Free; the salon, The Mane Design, LLC; and their insurer, State Farm Fire & Casualty Insurance Company. Subsequently, Donnette filed a motion for summary judgment. With regard to the matter of liability, the motion was uncontested by Defendants and granted by the trial court. A bench trial was held on January 8, 2018, on the sole issue of damages. The trial court issued a written opinion on April 24, 2018, and made the following award in favor of Lauren: $ 265,000.00 for pain, suffering, and psychological damages; $ 101,520.16 for past medical expenses; and, $ 10,000.00 for future medical expenses-totaling $ 376,520.16. The trial court declined to award damages to Donnette. Judgment was rendered on May 4, 2108. This appeal by Donnette, individually and on behalf of Lauren, ensued.

DISCUSSION

On appeal, Donnette asserts the trial court erred in failing to (1) award damages for the cost of two future hair follicle transplants instead of one; (2) award damages for future counseling expenses; (3) award bystander and loss of consortium damages to Donnette; and, (4) award adequate general damages.

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.

Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 2014-2592 (La. 12/8/15), 193 So.3d 1110 ; Baw v. Paulson , 50,707 (La. App. 2 Cir. 6/29/16), 198 So.3d 186. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently, but rather in reversing a trial court's factual conclusions, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Hayes , supra ; Baw , supra . This test requires a reviewing court to do more than simply review the record for some evidence which supports or controverts the trial court's findings, but instead, the court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Hayes , supra ; Baw , supra .

The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the factfinder's conclusion was a reasonable one. Rosell v. ESCO , 549 So.2d 840 (La. 1989). Accordingly, an appellate court on review must be cautious not to reweigh the evidence or substitute its own factual findings just because it would have decided the case differently. Id. As stated in Rosell , supra , at 844-5 :

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (Citations omitted).

One injured through the fault of another is entitled to full indemnification for damages caused thereby. La. C.C. art. 2315. Wainwright v. Fontenot , 2000-0492 (La. 10/17/00), 774 So.2d 70 ; Terry v. Simmons , 51,200 (La. App. 2 Cir. 2/15/17), 215 So.3d 410. Much discretion is left to the judge or jury in its assessment of quantum. La. C.C. art. 2324.1. As a determination of fact, the factfinder's assessment of quantum, or the appropriate amount of damages, is one entitled to great deference on review. Guillory v. Lee , 2009-0075 (La. 6/26/09), 16 So.3d 1104 ; Cooper v. Patra , 51,182 (La. App. 2 Cir. 2/15/17), 215 So.3d 889, writs denied , 2017-0476, 2017-0481 (La. 5/12/17), 219 So.3d 1104 and 219 So.3d 1105. Thus, an award of damages will be overturned only if we find that the award is contrary to the evidence in the record or otherwise constitutes an abuse of the factfinder's discretion. Guillory , supra ; Cooper , supra.

Awards for cost of two hair follicle transplants and future counseling

Donnette asserts in her first two assignments of error that the trial court erred in failing to award the costs of two hair transplants and future counseling expenses. We agree. The recovery of future medical expenses is dependent upon the tort victim establishing the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Menard v. Lafayette Ins. Co. , 2009-1869 (La. 3/16/10), 31 So.3d 996 ; Terry , supra . Importantly, future medical expenses must be established with some degree of certainty. Menard , supra ; Terry , supra . The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expense will be medically necessary. Menard , supra ; Terry , supra .

It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Green v. K-Mart Corp., 2003-2495 (La. 5/25/04), 874 So.2d 838 ; Manno v. Manno , 49,533 (La. App. 2 Cir. 11/19/14), 154 So.3d 655. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Green , supra ; Manno , supra . Further, a trial court may substitute its own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Green , supra ; Manno , supra .

Hair follicle transplants

Dr. Kenneth Sanders, the plastic surgeon treating Lauren, testified at trial that more likely than not, Lauren would need to have two hair follicle transplants in the future in order to resolve a bald spot on the back of her head where the burn occurred and scar tissue exists. Dr. Sanders further testified that the cost of each transplant was approximately $ 10,000.00. The trial court awarded Lauren the cost of one future transplant, but Donnette urges that since no other testimony to the contrary was offered at trial, the trial court should have accepted Dr. Sanders's expert opinion and awarded Lauren the cost of two future transplant surgeries. Dr. Sanders also testified that he would not know whether Lauren needed the hair transplants until he was able to examine the area after her most recent surgery, which had occurred on December 27, 2017, less than two weeks prior to trial. Defendants argue this testimony by Dr. Sanders prevented a finding that the hair follicle transplants were necessary and inevitable.

Dr. Sanders testified in detail regarding the nature of the five scar revision surgeries he had performed on Lauren to reduce the size of her scar-placing Lauren under general anesthesia, cutting and removing a strip of her scalp, then pulling the skin from each side of the wound and suturing it together. He explained that after each surgery, the tissue relaxed and softened and slowly stretched out and pulled back apart. Dr. Sanders opined that after Lauren's most recent scar revision surgery, they achieved their maximum improvement and a future scar revision surgery would be futile. While Dr. Sanders was able to pull the skin close enough together to get "hair to hair" during the last surgery, he testified that, "I don't anticipate that to last. I think it is going to spread back open a certain amount and then it doesn't make much sense to continue cutting ... so the only other thing to do would be a hair transplant." Dr. Sanders provided details regarding the nature and procedure of the hair follicle transplant and clearly testified that "more likely than not" Lauren would need two hair follicle transplants. Defendants did not present any expert testimony to rebut that of Dr. Sanders.

Based on its decision to award Lauren damages for the cost of a future hair follicle transplant, the trial court clearly found Dr. Sanders was credible. After a review of the record in its entirety, we do not find a reasonable factual basis for the trial court's seemingly arbitrary decision to reject Dr. Sanders's explicit testimony that more likely than not, Lauren would require two hair follicle transplants in the future. The record simply does not support the trial court's award for one future hair follicle transplant rather than two. We also note that the burden of proof for future medical expenses does not require Dr. Sanders to know with certainty whether Lauren will need the two transplants. Based on Dr. Sanders's uncontradicted testimony, Donnette sufficiently proved by a preponderance of the evidence the necessity, probability, and cost of a second hair follicle transplant. Therefore, we find that this assignment of error has merit and the trial court abused its discretion. It was clearly wrong in awarding the costs of only one future hair follicle transplant when the uncontroverted evidence showed Lauren would need two.

Future counseling

As to Lauren's counseling, Dr. Laura Harris, the psychologist who evaluated and treated Lauren, testified that she had originally diagnosed Lauren with post-traumatic stress disorder, which extended for a period of approximately 15 months. However, Lauren's condition no longer fit that diagnosis and she had more recently diagnosed Lauren with a condition described as "adjustment disorder with mixed anxiety and depressed mood." Dr. Harris testified in detail regarding the various psychological assessments she had performed on Lauren and the clinical interviews she had conducted with her, based on which, Dr. Harris opined Lauren's injury permanently affected her, continues to affect the way she interacts with other people, and will affect the way she develops relationships throughout her life. Dr. Harris further testified that Lauren would require 30 weeks of treatment but possibly 36 to 64 months, depending on her progress. She stated the recommended treatment is weekly, and the rate for the sessions is $ 150/hour. Defendants offered no expert testimony to refute that of Dr. Harris.

The trial court interjected several times during Dr. Harris's testimony. Then after direct, cross, and redirect examinations were complete, the trial court questioned Dr. Harris directly, primarily with regard to why Dr. Harris thought future counseling was necessary for Lauren and how Lauren's psychological injury was going to negatively impact her future in ways such as earning capacity and ability to go to college. The trial court then characterized Dr. Harris's explanation as "sort of speculative" and suggested she was "being a little bit excessive here in this diagnosis." In response to the testimony that Lauren had been resistant to counseling, the trial court inquired of Dr. Harris, "I mean, aren't there people who would just rather have a drink and not talk about stuff?" To which Dr. Harris responded, "Yeah, that can really be a problem. There are a lot of alcoholics and addicts who don't want to talk about their problem[.]" The trial court further asked Dr. Harris, "[At] some point in time, don't we have to say, rock and roll. Deal with it. You know?" To which Dr. Harris responded only, "um," before the trial court continued on, eventually stating, "Well maybe if you're trying to forget something, maybe talking about it every week is not the best way to get over it." Dr. Harris then explained that neither the research nor her practical experience showed the trial court's assertion to be true. She testified that instead, "when they don't talk about it, they don't usually forget it."

The trial court awarded Lauren $ 15,000.00 for psychological damages but declined to award damages for future counseling expenses. It opined that Dr. Harris's testimony that Lauren was suffering from post-traumatic stress disorder was "refuted" by the fact that Lauren "is a 4.0 student and has participated fully in all school functions and extracurricular activities ... plays school soccer and has a part time job." The trial court further stated in its written opinion that Lauren "appeared to be an extremely bright, attractive, articulate, well put together young woman with a promising future."

After reviewing the record in its entirety, including the transcript of the trial court's questioning of Dr. Harris, it is clear that the trial court did not simply substitute its own common sense and judgment for that of Dr. Harris, which would have been permissible. Instead, it appears the trial court substituted its own personal opinion regarding the utility of psychological counseling in general for the expert opinion of Dr. Harris regarding Lauren's need for counseling in the future. Dr. Harris was qualified and accepted as an expert in counseling and school psychology. She testified unequivocally that Lauren would require future counseling sessions to address the anxiety and depression she continues to struggle with due to her injury and painful and prolonged treatment. There was no testimony offered by Defendants to refute this testimony by Dr. Harris, and the record simply does not warrant the trial court's rejection of Dr. Harris's uncontradicted expert testimony. We cannot condone the trial court's substitution of its own opinion for that of Dr. Harris. Therefore, we find this assignment of error has merit and the trial court abused its discretion and was clearly wrong in failing to award Lauren damages for future counseling expenses. Based upon the record, we conclude Donnette presented sufficient evidence to support an award for future counseling expenses in the amount of $ 4,500.00, which is 30 weeks of weekly, hour-long sessions.

Accordingly, we amend the portion of the trial court's judgment regarding future medical expenses to include awards to Lauren for a second hair follicle transplant at the cost of $ 10,000 and future counseling at the cost of $ 4,500.00, thereby increasing the amount of the total award for future medical expenses to $ 24,500.00.

Award for bystander and loss of consortium damages

Donnette asserts in her third assignment of error that the trial court erred in failing to award damages to her bystander injuries and loss of consortium. We disagree.

As to bystander damages, there are four basic requirements to recover "bystander" damages, or damages for mental anguish or emotional distress suffered as a result of another person's injury. These requirements are: (1) the claimant must have a specifically enumerated relationship with the injured person; (2) the claimant must have viewed an event causing injury to the injured person or have come upon the scene of the event soon thereafter; (3) the harm to the injured person must have been severe enough that one could reasonably expect the observer to suffer serious mental distress; and (4) the claimant must suffer emotional distress that is severe, debilitating, and foreseeable. La. C.C. art. 2315.6 ; Trahan v. McManus , 1997-1224 (La. 3/02/99, 728 So.2d 1273 ; Lejeune v. Rayne Branch Hosp. , 556 So.2d 559 (La. 1990) ; Cooper , supra .

When Lauren reported she was experiencing discomfort while having her hair highlighted, Donnette was contacted and was present at the salon immediately after Lauren was injured. Donnette testified that when she arrived at the salon Lauren "wasn't loudly crying, but she had tears and she said it was throbbing." The evidence further showed that at the time Lauren's injury occurred, the only visible sign was a small red line on her scalp. Donnette, therefore, did not experience an immediate shock of witnessing a traumatic event that caused Lauren severe and apparent harm. We do appreciate, though, the subsequent difficulty Donnette likely experienced witnessing Lauren endure such pain and suffering over the course of her treatment. However, the record is devoid of any evidence showing that the emotional distress Donnette understandably experienced as a result of Lauren's injury rose to the level of severe and debilitating. Accordingly, the trial court's failure to award bystander damages to Donnette was not clearly wrong or manifestly erroneous.

Donnette further asserts she is entitled to damages for lost consortium. A parent's loss of consortium claim includes damages for: (1) loss of love and affection, (2) loss of society and companionship, (3) loss of performance of material services, (4) loss of financial support, (5) loss of aid and assistance, and (6) loss of fidelity. Brammer v. Bossier Parish Sch. Bd. , 50,220 (La. App. 2 Cir. 11/25/15), 183 So.3d 606. A child may sustain physical injury without necessarily causing his parents a loss of consortium. Doe ex rel. Doe v. DeSoto Parish Sch. Bd. , 39,779 (La. App. 2 Cir. 6/29/05), 907 So.2d 275, writ denied , 2005-2020 (La. 2/10/06), 924 So.2d 167.

The evidence shows that Lauren suffered a severe injury that required lengthy and extensive treatment; Donnette was present for the surgeries and procedures performed on Lauren; and, Donnette was responsible for Lauren's at-home wound care regimen. However, the record does not show that Donnette lost any material services, financial assistance or fidelity as a result of Lauren's injuries. Furthermore there was no evidence that Donnette's relationship with Lauren suffered as a result of her injury. Based upon the facts elicited in this case, we discern no abuse of the trial court's discretion in the factual finding that Donnette suffered no loss of consortium as a result of Lauren's injury. In the absence of a clear showing of manifest error, we decline to reverse that ruling. This assignment of error is without merit.

Award for general damages

Finally, Donnette asserts in her fourth assignment of error that the general damage award to Lauren should be increased. Specifically, Donnette argues that in accordance with comparable decisions, the general damages award to Lauren should be increased based on the following factors: the number of medical and surgical procedures Lauren has undergone, the length of Lauren's continued treatment, and the ratio of the amount of Lauren's past medical expenses to the amount of the general damage award. We disagree.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Thomas v. Morris , 51,112 (La. App. 2 Cir. 1/11/17), 211 So.3d 647, writ denied , 2017-0442 (La. 4/24/17), 219 So.3d 1099. The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. LeBlanc v. Pynes , 46,393 (La. App. 2 Cir. 7/13/11), 69 So.3d 1273, writ denied , 2011-1792 (La. 10/14/11), 74 So.3d 213. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Brammer , supra.

There is no mechanical rule for determining general damages. The facts and circumstances of each case control. Terry , supra . The nature, relative severity and extent of bodily injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. Id. The duration of a plaintiff's injury symptoms and the duration of treatment are relevant quantitative factors that must also be taken into account. Id.

Here, the record shows that Lauren experienced significant pain and suffering as a result of her injuries. Her injury occurred the summer before she began her freshman year of high school. By the time she started school, Lauren had a large, gruesome open wound on the back of her head, measuring approximately 10 x 4.5 centimeters. She was teased and taunted and even had a fellow student photograph her wound and bandage. Lauren began counseling after she reported to Donnette that she had been experiencing nightmares for a period of time. Lauren has undergone five scar revision surgeries and numerous wound care treatments which were painful and traumatic for Lauren and frequently involved Lauren being exposed to the smell of her own burning flesh as the wound was cauterized. However, we also note that following the necessary hair follicle transplants, which, according to Dr. Sanders's testimony, should be completed within a year and a half from trial, Lauren is unlikely to require any more surgeries or procedures, experience any further pain or discomfort associated with surgeries or procedures, or have any visible scarring or any permanent disabilities.

There is clearly a reasonable factual basis in the record for the trial court's award for general damages. In its written opinion, the trial court plainly outlined the testimonial and evidentiary support for its assessment of general damages-the number and nature of Lauren's surgeries, the painful wound care regimen Lauren endured, the serious discomfort caused by the surgeries, the past medical expenses Lauren had incurred, the need for a future hair follicle replacement procedure, and the psychological damage Lauren endured, specifically teasing and bad dreams.

The trial court was in the best position to assess both the quantum and the credibility of the witnesses. Its written opinion as well as the transcript of the trial indicate that it adequately considered both the qualitative and quantitative factors in assessing general damages. The trial court went so far as to explain that while Louisiana lacked many quantum reports dealing with factually similar cases, in reaching its decision, it had reviewed cases involving significant burns.

We will not replace the trial court's findings with our own mechanical computation of general damages or credibility determinations, which is in essence Donnette's request. The trial court is given wide discretion in its findings, and here, there is clearly a reasonable factual basis in the record to support its award of general damages. Accordingly, we find the trial court did not abuse its discretion and its award of general damages is not clearly wrong. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the portion of the trial court's judgment in favor of Donnette Koertge, on behalf of the minor child, Lauren Koertge, awarding Lauren $ 265,000.00 in general damages. We further affirm the trial court's denial of bystander and loss of consortium damages to Donnette Koertge. We amend the portion of the trial court's judgment regarding future medical expenses, increasing the award by $ 14,500.00, for a total award of $ 24,500.00 for that element of damages. Costs of this appeal are assessed one-half to Plaintiff, Donnette Koertge, and one-half to Defendants, State Farm Fire & Casualty Insurance Company, The Mane Design, LLC, and Marlaina Free.

AFFIRMED IN PART; AMENDED IN PART; AS AMENDED, AFFIRMED.