author: I,STEWART, J.

text:
    Pamela C. POSEY and Michael Posey, Plaintiffs-Appellants, v. Ben B. SINGLETARY, M.D., et al., Defendants-Appellees.
    No. 37,425-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Nelson W. Cameron, Shreveport, for Appellants.
    Watson, Blanche, Wilson & Posner by Rene J. Pfefferle, Willis-Knighton, Medical Center, Baton Rouge, for Appellee.
    Before BROWN, STEWART and PEATROSS, JJ.
   I,STEWART, J.

At issue in this appeal is whether the trial court erred in amending two judgments rendered August 25, 1999, to include the dismissal of the medical malpractice claims of the plaintiffs, Pamela Posey and Michael Posey, against the defendant, Willis-Knighton Medical Center (hereinafter ‘WK”). For the reasons stated in this opinion, we vacate the trial court’s judgment in part and affirm in part.

FACTS

The Poseys’ medical malpractice claims against Dr. Ben B. Singletary, Dr. William L. Norwood, and WK arose from injuries sustained by Pamela Posey as a result of surgery performed by Dr. Singletary. The specific facts are set forth in Posey v. Singletary, 34,913 (La.App.2d Cir.9/28/01), 795 So.2d 1249, and will not be restated in this opinion.

The facts relevant to the matters at issue begin on July 14, 1999, when the Poseys filed a pleading styled “PETITION FOR AUTHORITY TO COMPROMISE CLAIM, FOR APPROVAL OF SETTLEMENT UNDER LA. R.S. 40:1299.44 AND TO SUPPLEMENT AND AMEND THE ORIGINAL AND FIRST SUPPLEMENTAL & AMENDING PETITION,” hereinafter referred to as “the petition” or “the Poseys’ petition.” The petition included the following representations:

3.
Petitioners have entered into an agreement with Ben Singletary, M.D., a Medical Corporation, a named defendant in these proceedings, and its insurer, Louisiana Medical Mutual Insurance Company (hereinafter referred to as “LAMMICO”), a domestic insurance corporation authorized and actually doing business in this state, under the terms of which they have agreed to accept the amount of ONE HUNDRED THOUSAND AN NO/lOO ($100,000) DOLLARS and costs in full and final compromise and settlement of 12any and all claims, rights of action or causes of action, whatsoever their nature, which PAMELA POSEY and MICHAEL PO-SEY have, or may in the future have, against BEN B. SINGLETARY, M.D., WILLIAM L. NORWOOD, M.D. and Willis Knighton Medical Center as result of the injuries sustained by Pamela Posey, all the while reserving plaintiffs’ rights to seek damages, in an amount in excess of the sum to be paid herein by Ben B. Singletary, M.D., from the Louisiana Patient’s Compensation Fund and dismissing William L. Norwood, M.D. and Willis Knighton Medical Center.
4.
Petitioners are of the opinion that it would be in their best interest to accept the aforementioned $100,000 as a full and complete settlement of their claim against the Defendants.
8
As was noted hereinabove, Petitioners, PAMELA POSEY and MICHAEL POSEY and Defendant, Ben B. Single-tary, M.D., and his insurer, have agree to compromise and settle the portion of the claim against them, which forms the basis of this lawsuit, for the amount of ONE HUNDRED THOUSAND AND NO/100 ($100,000.00) DOLLARS and costs.
12
In compromising their claim against Ben B. Singletary, M.D., it is necessary for said physician to remain as a nominal defendant in this matter. However, the aforementioned payment of the sum of.... ($100,000.00) DOLLARS by defendant precludes any further liability on his part or that of his insurer in this matter although according to law, he has admitted liability and causation for damages up to $100,000.00.
13.
Petitioners aver that judgment should be rendered herein recognizing that William Norwood, M.D. and Willis Knighton Medical Center have no further liability in this matter, all the while maintaining Ben B. Singletary, M.D., as a nominal defendant herein.

On August 25, 1999, the trial court signed an “ORDER APPROVING SETTLEMENT, SUBSTITUTION OF PARTIES AND FOR TRIAL SETTING.” The order stated that the matter was heard in open court on | ¡¡August 24, 1999. Parties present included the Poseys with their counsel, and counsel for Dr. Norwood and the Patient’s Compensation Fund (PCF). Dr. Singletary and his attorney waived their presence. The order also noted that WK and its attorney were not present. The order provided the following:

After reviewing the Petition for Compromise of Claims and discussing same with Petitioners:
IT IS HEREBY ORDERED that Petitioners, Pamela Posey and Michael Po-sey, be and are hereby authorized to compromise and settle Petitioners’ claim, with reservation of rights as set forth in the petition For Authority To Compromise Claim, For Approval of Settlement Under LSA-R.S. 40:1299.44, And To Supplement and Amend Original Petition.
IT IS FURTHER ORDERED that Defendant, Ben B. Singletary, M.D., shall remain a nominal party to this litigation, until such time as the Patient’s Compensation Fund is substituted as a defendant for it, or until this litigation is finally terminated, and that the Patient’s Compensation Fund be substituted as a party before this Court and that it receive such notices as are required by Statute;
IT IS FURTHER ORDERED that Petitioners, PAMELA POSEY and MICHAEL POSEY, be and are hereby authorized to execute any agreement in connection with said compromise and settlement.

Also on August 25, 1999, the trial court signed an order dismissing with prejudice the Poseys’ claims against Dr. Norwood. This order further provided that the “claims of PAMELA POSEY and MICHAEL POSEY against all other defendants are hereby reserved unto them.” Finally, the Poseys executed a release by which they accepted payment of $100,000 in full and final settlement of their claims and causes of action arising out of treatment rendered by Dr. Singletary.

1/Fhe matter proceeded to trial on the issue of damages to be paid by the PCF. A jury awarded Pamela Posey total damages of $116,160 and Michael Posey $500 for loss of consortium. After the jury verdict was rendered, the Poseys attempted to schedule a status conference to set the case for trial against WK by way of a letter to the trial judge dated September 6, 2000. WK’s attorney responded in a letter to counsel for the Poseys dated September 11, 2000, in which he referenced the Poseys’ petition and stated his understanding that the matter had been settled and claims against WK dismissed.

When the Poseys filed a motion and order to appeal the jury verdict, they attempted to reserve the right to proceed to trial against WK on the basis that WK had never been dismissed as a party. The trial court granted the appeal in an order signed September 29, 2000, which included a statement that “claims and proceedings against Willis Knighton Medical Center are reserved by Plaintiffs.”

On February 8, 2002, the Poseys forwarded discovery requests to WK. The Poseys took the position that WK had not been dismissed as there was no order of dismissal. In response, WK filed exceptions of lack of jurisdiction and no right of action, along with motions seeking dismissal, sanctions, and summary judgment. These were all denied in a judgment rendered June 19, 2002. In denying the motion to dismiss and the motion for summary judgment, the trial court found there to be genuine issues of fact as to the viability of the Poseys’ claims against WK.

| ^Thereafter, on July 19, 2002, WK filed a “Petition for Nullity of Amended Judgment and Motion to Amend Phraseology and Enforce Compromise Judgment, or in the Alternative, Exception of Res Judicata, Motion to Dismiss and For Sanctions.” In this pleading, WK alleged that the matter had already been compromised and a final judgment rendered entitling WK to a dismissal as provided in the Poseys’ petition which was approved by the trial court. WK asserted that it had waived its appearance at the hearing on the petition based on the numerous representations by the Poseys in the petition that WK would be dismissed as part of the settlement. WK also asserted that once the trial court approved the settlement, it was released as a defendant and the only issue remaining for trial was the amount of damages owed by the PCF. Moreover, WK argued that the dismissal of Dr. Norwood which also purported to reserve the Poseys’ rights against WK was an absolute nullity since it was an improper substantive amendment of the order approving the settlement.

In opposition to WK’s petition for nullity, the Poseys filed an answer in which they alleged that they withdrew, and are no longer bound by, the allegations regarding dismissal of WK made in the petition to compromise. The Poseys also asserted that WK knew it was not dismissed as early as October 1999, when they refused WK’s requests to sign or file a judgment dismissing WK.

In a judgment rendered September 16, 2002, the trial court, referring to Paragraph 13 of the Poseys’ petition, determined that WK should have been dismissed as a defendant. Accordingly, the trial court amended the |fitwo orders rendered on August 25, 1999, to reflect the dismissal of the Poseys’ claims against WK. The Poseys appeal this judgment.

DISCUSSION

La. C.C.P. art.1951 provides that a final judgment may be amended at any time to alter phraseology, but not the substance, or to correct errors of calculation. Aufrichtig v. Progressive Men’s Club of Louisiana, 35,031 (La.App.2d Cir.9/26/01), 795 So.2d 1228, 1230, writ denied, 2001-2862 (La.1/11/02), 807 So.2d 239. Under La. C.C.P. art.1951, the trial court cannot substantively amend a final judgment even to express the court’s actual intent or to conform the judgment to the court’s oral or written reasons for judgment. Stoffer v. Stoffer, 29,458 (La.App.2d Cir.5/7/97), 693 So.2d 1229. Any substantive amendment may only be made by a timely motion for a new trial, a timely appeal, or by consent of the parties. Pitard v. Schmittzehe, 28,571 (La.App.2d Cir.8/21/96), 679 So.2d 515. An improperly amended judgment containing substantive changes is an absolute nullity. Titlesite v. Webb, 36,437 (La.App.2d Cir.12/11/02), 833 So.2d 1061.

A final judgment is one that decides the merits of the case in whole or in part. La. C.C.P. art. 1841; Tolis v. Bd. of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206. Under the six circumstances enumerated in La. C.C.P. art. 1915(A), a final judgment may be rendered even though it does not grant the successful party all the relief prayed for or adjudicate all the issues in the case. La. C.C.P. art. 1915(A). Otherwise, unless designated as a final judgment based on an express ^determination that there is no just reason for delay, an order or decision adjudicating fewer than all the claims, rights, or liabilities of fewer than all the parties shall not constitute a final judgment for immediate appeal, and any such order or decision may be revised at any time prior to rendition of the judgment adjudicating all the claims, rights, and liabilities of all the parties. La. C.C.P. art. 1915(B).

The trial court amended the two orders rendered August 25, 1999, to reflect the dismissal of the Poseys’ claims against WK. We must first determine the nature of these judgments in order to determine whether they were improperly amended.

Upon review of the order dismissing the Poseys’ claims against Dr. Nor-wood, we find it to be a final judgment under La. C.C.P. art. 1915(A)(1). A judgment which dismisses a suit as to less than all the parties, defendants, third party plaintiffs, third party defendants, or inter-venors is a final judgment. La. C.C.P. art. 1915(A)(1). Because the trial court’s order of August 25, 1999, dismissed the Poseys’ claims against Dr. Norwood, it is a final judgment which cannot be substantively amended other than by timely motion for new trial, timely appeal, or consent of the parties. The parties did not consent to this amendment; nor was there a timely motion for new trial or timely appeal. The trial court’s amendment of this judgment to include the dismissal of the Poseys’ malpractice claims against WK is an improper substantive amendment even though the amendment may express the trial court’s actual intention in light of the settlement it approved the same day. Accordingly, we find the amended judgment to be an absolute |snullity, and we vacate that part of the September 16, 2002 judgment which granted the amendment.

We next turn our attention to the order approving the settlement which the trial court also amended to reflect the dismissal of the Poseys’ claims against WK. The order approving the settlement authorized the Poseys to settle their claim with reservation of rights as set forth in the petition, authorized them to execute any agreement in connection the settlement, ordered Dr. Singletary to remain as a nominal defendant, and set a status conference date. Our initial impression is that this order is not a final judgment as it includes no explicit language determining the merits in whole or in part so as to be a final judgment. Although the order approves the settlement, it includes no dismissal of claims or specific finding of liability.

On the other hand, we must consider that the Poseys filed the petition to obtain the trial court’s approval of the settlement under the procedure set forth in La. R.S. 40:1299.44(0) of the Medical Malpractice Act (MMA), La. R.S. 40:1299.41 et seq. When a victim of medical malpractice agrees to settle his claim against a qualified health care provider for the policy limits of $100,000, and demands excess damages from the PCF, he must closely follow the procedure of La. R.S. 40:1299.44(0). Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697. This procedure requires the malpractice claimant to file a petition seeking approval of an agreed settlement and demanding excess damages from the PCF. La. R.S. 40:1299.44(0(1). In approving the settlement, the trial court shall consider |9the liability of the health care provider as admitted and established where his insurer has paid the policy limits of $100,000. La. R.S. 40:1299.44(0(5). An approved settlement precludes the PCF from contesting the health care provider’s liability. Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990).

Under the statutory scheme of La. R.S. 40:1299.44(0), the malpractice claimant obtains the benefit of having liability established for purposes of obtaining excess damages, up to the statutory cap, from the PCF. Implicit in the trial court’s approval of the settlement was a statutory admission of liability on the part of Dr. Singletary. See La. R.S. 40:1299.44(0(5). As provided in La. C.C.P. art. 1915(B), in the absence of designation as a final judgment by the trial court after an express determination that there is no just reason for delay, any order or decision which adjudicates fewer than all the claims, rights, or liabilities of fewer than all the parties shall not terminate the action, shall not constitute a final judgment, and may be revised at any time prior to rendition of a judgment which adjudicates all the claims, rights, and liabilities of all the parties. To the extent that the trial court’s judgment approving the settlement resulted in a determination of Dr. Singletary’s liability, the judgment is a partial judgment subject to revision as provided by La. C.C.P. art. 1915(B).

Having determined that the judgment approving the settlement is not a final judgment, we find it to be subject to revision by the trial court. We |10also conclude that the trial court’s amendment of that judgment to reflect dismissal of the Poseys’ claims against WK was proper. This amendment clearly reflects the intent and purpose of the agreed settlement as expressly represented by the Poseys in their petition. In their petition, the Po-seys’ represented that they “entered into an agreement with” Dr. Singletary. They represented the terms of the settlement as acceptance of $100,000 in

“full and final compromise and settlement of any and all claims, rights of action or causes of action, whatsoever their nature which (the Poseys) have, or may in the future have against BEN B. SINGLETARY, M.D., WILLIAM L. NORWOOD, M.D. and Willis Knighton Medical Center....”

They also represented that they were dismissing Dr. Norwood and WK, while maintaining Dr. Singletary as a nominal defendant and reserving the right to seek excess damages from the PCF. This was the settlement which the trial court authorized and approved. Nothing in the order suggests otherwise. The order signed by the trial court was substantially similar to the order attached to the petition filed by the Poseys, which we interpret as encompassing the trial court’s approval of the settlement in accordance with the terms and conditions thereof as set forth by the Po-seys in their petition.

Jurisprudence provides that in construing a judgment, the entire context must be considered. Where there is doubt or ambiguity, the pleadings, subject matter of the suit, reasons for judgment, and other matters of record are properly considered to arrive at an interpretation consistent with a proper decree on the law and the facts. State, Dept. of Trans, and Dev. v. Sugarland Ventures, Inc., 476 So.2d 970 (La.App. 1st Cir.1985), writ denied, 478 So.2d 909 (La.1985), citing American Bank & Trust Co. v. Blue Bird Restaurant & Lounge, 294 So.2d 302 (La.App. 1st Cir. 1974), writ denied, 296 So.2d 840 (La.1974). The judgment approving the settlement, considered in light of the Poseys’ representations in the petition, can be interpreted in no other way than as authorizing the settlement in accordance with the terms set forth in the petition. This includes the Poseys’ dismissal of their claims against WK in addition to dismissal of their claims against Dr. Norwood. Accordingly, amendment of the judgment approving the settlement to specify dismissal of the Poseys’ claims against WK was proper as it comports with the terms of the approved settlement.

In addition, we find no conflict between the amendment of the judgment approving the settlement to dismiss the claims against WK and the reservation of rights against “all other defendants” in the judgment of August 25, 1999, dismissing the claims against Dr. Norwood. Although the judgment dismissing the claims against Dr. Norwood purported to reserve the Po-seys’ claims against other defendants, the judgment does not specifically reserve claims against WK. Moreover, this judgment was signed on the same day that the trial court signed the judgment approving the settlement. Properly construing these two judgments requires that they be considered together in light of the Poseys’ representations in their petition.

The Poseys’ petition clearly sets forth the terms of an agreed settlement as including dismissal of their claims against WK and Dr. Norwood as part of the settlement with Dr. Singletary. The trial court | ^authorized the settlement with reservation of rights as set forth in the petition. The Poseys reserved rights only as to the PCF in the petition and maintained Dr. Singletary as a nominal defendant for purposes of enforcing those rights at trial on the issue of damages. In light of the Poseys’ representations in their petition regarding the terms of their settlement agreement with Dr. Singletary and the trial court’s approval of the Poseys’ settlement, the reservation of rights “against all other defendants” in the judgment dismissing Dr. Norwood must include only those defendants who were not to be dismissed as part of the settlement, namely Dr. Singletary, who was to remain as a nominal defendant.

For these reasons, we find no error in that portion of the trial court’s judgment of September 16, 2002, amending the judgment approving settlement to reflect the dismissal of the Poseys’ claims against WK. This amendment reflects the terms of the settlement as set forth in the Poseys’ petition and approved by the trial court. Moreover, this amendment is not in conflict with the judgment dismissing Dr. Norwood, since that judgment made no specific reservation of rights as to WK.

CONCLUSION

For the preceding reasons, we vacate that portion of the trial court’s judgment of September 16, 2002, which amended the judgment of August 25, 1999, dismissing the Poseys’ claims against Dr. Norwood. However, we affirm that portion of the judgment of September 16, 2002, which amended the judgment of August 25, 1999, approving the Poseys’ settlement, to reflect dismissal of the Poseys’ claims against WK. The claims of the 113plaintiffs/appellants, Pamela Posey and Michael Posey, against Willis Knighton Medical Center are hereby dismissed with prejudice. Costs are assessed to plaintiffs/appellants.

VACATED IN PART AND AFFIRMED IN PART.

      . The minutes indicate that the matter was actually heard on August 23, 1999. There is no transcript of the hearing.

      . In Posey v. Singletary, supra, this court increased the damages awarded by the jury.

      . This is not a final judgment under La. C.C.P. art. 1915(A)(5) because the issue of liabilily has not been tried by the court or before a jury.


source: Caselaw Access Project

author: 11 BROWN, C.J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Charles R. GEORGE, Appellant.
    No. 37,492-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Kenota P. Johnson, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Stephen Sylvester Assistant District Attorney, for Appellee.

      Before BROWN, WILLIAMS, and DREW, JJ.
   11 BROWN, C.J.,

Defendant, Charles Richard George, was convicted by a unanimous jury of aggravated kidnaping on September 20, 2002, and was sentenced to life imprisonment at hard labor without benefit. Defendant appeals his conviction. Finding no error, however, we affirm.

Facts

On May 11, 2001, the West Monroe Police Department received a telephone call from the owner of a realty company who was concerned because one of his agents, Dondi Kay Copeland, was late for desk duty and had not been seen or heard from in several hours. Co-workers and Christopher Copeland, Dondi’s husband, were at the realty office trying to determine where she might be.

When an investigating officer arrived at the realty company office, he learned that Chris had been able to find out from his father, who worked for CenturyTel, that Dondi’s cell phone was being used in Chat-ham, which is in Caldwell Parish, Louisiana. The officer called the Caldwell Parish Sheriffs Office and gave a description of the 29-year-old woman and her car, a white Toyota Solara with Alabama license plates. The Caldwell Parish deputy reported that their office was investigating the death of a woman meeting the description given by the West Monroe officer and noted that a white Toyota Solara was involved in the investigation.

The Caldwell Parish Sheriffs Office had received a telephone call around 1:00 p.m. from a motorist who reported that she had seen an object that looked like a mannequin bounce on the highway as she drove past a white car traveling very close behind a log truck. As the motorist turned her | ¡.vehicle around to go back to see what had happened, the white car turned down a side road. The object in the road turned out to be the body of a white female who was bleeding profusely from the head.

During the course of the investigation, it was determined that Mrs. Copeland had left the realty office earlier that morning with a client who said that he had $40,000 to spend on property. They left in Mrs. Copeland’s car and several people reported seeing them together before noon looking at rural residences.

The Caldwell Parish Sheriffs Office began to search for the suspect, who was described by an employee of the realty company as a slender white male, between 5'8" and 6'0" tall, with long sandy brown hair and bad teeth. The deputies searched the woods near the road where the victim’s car had been found abandoned.

The next day, defendant, Charles Richard George, Sr., who had spent the night in the woods, turned himself in to an off-duty deputy. The state police were notified and defendant was questioned in a videotaped interview. Four officers were in the room during the interrogation that began by defendant being advised of and signing a written waiver of his Miranda rights.

During this interview, defendant related that he had parked his truck in the Glen-wood Medical Center parking lot and walked to the realty office to meet Mrs. Copeland. She drove him to several locations to show him rural properties. When they were done, Mrs. Copeland took defendant back Lto his truck. Defendant said that he told Mrs. Copeland that he needed some money and she laughed, saying that she did not have any money.

Defendant stated that he then made Mrs. Copeland drive him out of town. He took her to a camp owned by his brother, ordered her into the house and told her to take off her clothes. Defendant attempted to rape Mrs. Copeland, but ejaculated prematurely on her leg. When they left, defendant made her get into the trunk of the car. While he was driving down the highway back toward Ouachita Parish, Mrs. Copeland opened the trunk and either fell or jumped out of the vehicle. She died as a result of injuries to her head caused when she hit the pavement.

After the video camera was turned off, the officers took an inventory of defendant’s belongings and noticed that he had $200 in twenty dollar bills. Defendant told the officers that it was money that he had gotten from Mrs. Copeland. The videotape was turned back on and defendant related how he had asked the victim for the money and she had laughed, saying that she did not have any money. Defendant said that he then grabbed her wrist and told her that he was serious. Defendant stated that he scared her and told her to drive. Mrs. Copeland then asked him how much money he wanted and he replied $150-$200. She said that she would try to get him money out of a bank account but that she was unsure how much money she would be able to get. Defendant said that Mrs. Copeland then drove to an ATM and withdrew $200. Defendant held her by the wrist while she got out of the car to get the money from the ATM machine. Defendant reiterated |4how he then made her drive out of the parish and to the camp where he attempted to have sex with her.

Defendant was charged by a Ouachita Parish grand jury with aggravated kidnap-ing. Among the various motions filed by the defense were a motion to suppress the confession, a motion in limine and a motion to change venue. All of the motions were denied by the trial court. A 12-person jury found defendant guilty as charged on September 20, 2002, and he was sentenced to life imprisonment at hard labor without benefit. Defendant has appealed his conviction.

Discussion

Sufficiency of the Evidence/Denial of Motion for Post-Verdict Judgment of Acquittal

Defendant contends that there is insufficient evidence to convict him of aggravated kidnaping because there is no proof that the victim was forced to be with him or that she was made to give up anything of value. Defendant’s argument is based upon the statements of the three people who saw Mrs. Copeland and defendant together during the day while they were out looking at property, which testimony was that the victim did not appear to be afraid of defendant. Defendant further argues that it is unclear whether the victim voluntarily or involuntarily transferred money to him. Finally, defendant asserts that there is no evidence to show that the victim was deprived of anything in exchange for her release or promise of her release.

This court’s first step in reviewing the sufficiency of the evidence is to determine whether the accused is entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). An acquittal should be granted if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This court’s authority to review questions of fact in a criminal ease is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Withers, 36,001 (La.App.2d Cir.06/12/02), 821 So.2d 556; State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court must defer to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

La. R.S. 14:44 provides in pertinent part:

Aggravated kidnaping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

To sustain a conviction for aggravated kidnapping the state had to prove: (1) forcible seizing; (2) carrying of any person from one place to |fianother; (3) intent to force the victim, or some other person, to give up anything of apparent present or prospective value; (4) in order to secure the release of that person. State v. Arnold, 548 So.2d 920 (La.1989).

Defendant’s own statement, corroborated by other evidence, supplies proof of the elements necessary to convict. The pertinent parts of defendant’s confession, reproduced here as written and without references to grammatical and syntax errors to allow for easier reading, are:

And that’s when I asked her if she had any money. She said “what.” And I said have you got any money and I said I’m serious. And she said no. She said I broke. And I said, okay that’s when I grabbed her wrist. That’s when I did it....
I just pinned her wrist like on the uh ... the floor shift ... the floor gear. Cause she had put it in park and I reached over and I grabbed it. And just like I told him I grabbed it harder than I meant too. And I guess that’s what part of what scared her. Was that I did it so fast and so hard.

This action described by defendant, his grabbing of Mrs. Copeland’s wrist, constitutes the first element, a forcible seizing.

Continuing his description, defendant stated:

And uh ... she said what do you want me to do. And I said drive. You know. She said which way. I said down Jones-boro Highway.

By commanding the victim to drive, defendant forced her to be carried from one place to another at his direction, thus satisfying the proof requirement for element two, the carrying of a person from one place to another. At this point in time, defendant and Mrs. Copeland had completed looking at real estate properties and she had already driven him to the Glenwood Medical Center parking lot to pick up his truck (although he refused to get out of her vehicle at that time). The witnesses’ testimony that |7the victim did not appear to be under stress or was not with defendant against her will was clearly about the time frame before he grabbed her wrist and forced her to continue driving him around.

The third element, the intent to force the victim, or some other person, to give up anything of apparent present or prospective value, was met when the following colloquy took place between Mrs. Copeland and defendant:

And she said uh ... how much money do you need. And I said $150/$200. And she said well I got a credit card. She said I don’t know if it will go through but she said, “I’ll try it.” If you want to. And I said okay.

Continuing with his confession, defendant stated that when they got to the bank, she used the ATM:

I still had my hand on her wrist and uh ... she took a card and reached over and put it in there or whatever she had to do. But she said that she couldn’t reach something and I said that you’re not going to get out. Cause she opened the door....
I said that you are not going to get out. She said, “I’m not. I promise.” And I held her wrist by ... I let her get out a little bit so she did what she gonna do....
She punched in what she had to punch in. And it came up okay. IT was approved and she said Thank God. And she got it. She shut the door and got back in ...

From the above description, Mrs. Copeland’s reaction to receipt of the money from the ATM was one of thankfulness and apparent relief. Defendant admitted in his statement that the victim was shaking or trembling right after he grabbed her, that she asked him not to hurt her and that she started praying.

I «Unfortunately, defendant did not release Mrs. Copeland at that point. The evidence shows that he ordered her to drive out of the parish to a family camp in Caldwell Parish where he attempted to rape her and committed sexual battery. Defendant did not release the victim at that time, either. Instead, he forced her into the trunk of her car. Mrs. Copeland died as a result of head injuries she sustained while attempting to escape. This court, however, has not examined the record in its sufficiency of the evidence analysis on anything past what took place at the ATM. The state intentionally limited its case, inasmuch as prosecution of the subsequent sexual offense(s) and homicide could be/have been instituted in Caldwell Parish.

This is clearly sufficient to satisfy the last element, that the thing of value be required for the release of the person taken. As noted by the court in State v. Arnold, supra at 925:

Thus, the crucial question in determining whether an aggravated kidnaping has occurred is not whether the defendant had intent to release the victim at either the outset of the crime or indeed at any point during the crime. The more important question and the issue to be focused upon is whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.

Defendant forced Mrs. Copeland to do things against her interest. He made her drive him from the Glenwood Medical Center parking lot and demanded money from her. It was reasonable for the jury to have found that the victim cooperated with defendant in hopes of getting released. Further, it was reasonable for the jury to have concluded that all of the elements of the offense of aggravated kidnaping were proved beyond a reasonable |9doubt. Defendant’s own statement was the best proof of the events that took place and what the victim said and did in response to his demands.

This assignment is without merit.

Denial of Motion to Change Venue

Defendant asserts that the jury was tainted by the media sensationalism surrounding the case and that the trial court erred in denying his motion for a change of venue.

A defendant is guaranteed an impartial jury and a fair trial. La. Const, art. 1, § 16; State v. Brown, 496 So.2d 261 (La.1986). To accomplish this end, the law provides for a change of venue when a defendant establishes that he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Clark, 02-1463 (La.06/27/03), 851 So.2d 1055; State v. Frank, 99-0553 (La.01/17/01), 803 So.2d 1; State v. Bell, 315 So.2d 307 (La.1975), appeal after remand, 346 So.2d 1090 (La.1977).

Changes of venue are governed by La. C. Cr. P. art. 622, which provides:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change of venue, the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

The following are relevant factors to be considered when determining whether to grant a change of venue under article 622:

|in(l) the nature of pre-trial publicity and the particular degree to which it has circulated in the community;
(2) the connection of government officials with the release of the publicity;
(3) the length of time between the dissemination of the publicity and the trial;
(4) the severity and notoriety of the offense;
(5) the area from which the jury is to be drawn;
(6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and
(7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

State v. Frank, supra; State v. Bell, supra.

Defendant has the burden of showing that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Clark, supra; State v. Frank, supra; State v. Vaccaro, 411 So.2d 415 (La.1982). Whether the defendant has made the requisite showing is a question addressed to the trial court’s sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. Id.

The defendant must prove more than mere public knowledge or familiarity with the facts of the case to be entitled to have his trial moved to another parish; rather, the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial. State v. Clark, supra; State v. Frank, supra; State v. Wessinger, 98-1234 (La.05/28/99), 736 So.2d 162. A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime. State v. Clark, supra; State v. Thompson, 516 So.2d 349 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988).

On review of denial of a change of venue, courts will primarily inquire as to the scope and nature of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial, in order to ascertain whether prejudice existed in the mind of the public which prevented the defendant from receiving a fair trial. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); State v. Clark, supra; State v. Hoffman, 98-3118 (La.04/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). Additionally, courts have examined the number of jurors excused for cause for having fixed an opinion as another gauge of whether prejudice exists in the public mind. Murphy v. Florida, supra; State v. Clark, supra; State v. Wessinger, supra.

In this case, the publicity complained of consisted of area newspaper articles and television news broadcasts. The defense presented evidence that news surrounding the discovery of the victim’s body, defendant’s arrest and his appearances at subsequent hearings was front page news four times. The television station only kept its log for one year, but its records showed that defendant’s trial was the lead story on the evening news two times. News surrounding the case also ran on at least three other days, airing during three broadcasts on each of those days. Testimony established that these news items were put before the public from the day Dondi Copeland’s l^body was found in June 2001 until the motion to change venue was considered in July 2002.

There was no evidence that anyone, particularly the state, had encouraged any media publicity about the case. There was, however, testimony that this case had in fact been downplayed because a member of the victim’s family used to work at the local television station. The trial judge decided to defer his decision until the trial date and ruled that a venire of 200 persons instead of the usual 150 persons would be called. The judge also stated that individual voir dire would be conducted if it were deemed necessary.

At the onset of the selection process, the trial judge was very thorough in ensuring that an impartial jury was selected. The court ordered that only small panels be brought in at a time. The judge began by asking for a show of hands of the people who subscribed to the local newspaper, read the newspaper daily or watched the evening news. He then narrowed the questioning down to ask the potential jurors who among them recalled reading or seeing anything about the case in the media. In the first panel of 12, only four persons responded that they could recall the case. Of those, only one stated that she had formed an opinion about what had happened in the case. She was excused from the panel for cause by the trial court. The other persons were questioned by the state’s attorney and defense counsel and, based upon their responses, neither side asked for any of them to be removed from the jury.

| isPanel number two, made up of 14 people, had several persons who had heard about the case in the news and one person who knew the victim’s family. Individual questioning resulted in three people being dismissed for cause based upon their statements that they had already made up their minds and could not decide the case solely based upon the evidence presented. The third panel also contained 14 persons. Several people on this panel had read or heard the news. Four persons from this panel were released because they related that they had already formed an opinion about defendant’s culpability.

Of the 40 persons questioned during voir dire, a total of 27 were excused. Of this number, only eight were excused because of the pre-trial publicity and its taint. This number is not so high or outrageous as to justify any presumption of community-wide prejudice. Additionally, there was no evidence presented to show that the pre-trial publicity was particularly inflammatory in nature or that the government officials had taken any action to gain an advantage through the media.

The trial court participated in the intensive questioning of the venire on the pretrial publicity and what the potential jurors had seen, heard or read. The court excused for cause all of the potential panel members who indicated that they had already formed an opinion. The record shows that only a few of the jurors either saw or could recall the media coverage of the case or knew either defendant or the victim. A careful review of the prospective jurors’ responses shows that the prerequisite prejudice did not exist in the community.

140n this record, we cannot say that the trial court abused its discretion in denying defendant’s motion for a change of venue. This assignment of error is without merit.

Denial of Motion to Suppress

Defendant asserts that the statement he gave in which he incriminated himself was involuntary and coerced due to his extreme mental and physical exhaustion and fatigue.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977), appeal after remand, 377 So.2d 1218 (La.1979); State v. Loyd, 35,637 (La.App.2d Cir.02/27/02), 810 So.2d 1214, writ denied, 02-1159 (La.04/21/03), 841 So.2d 779; State v. Roddy, 33,112 (La.App.2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288; State v. Rogers, 476 So.2d 942 (La.App. 2d Cir.1985).

Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. Id.; State v. Walker, 28,577 (La.App.2d Cir.10/04/96), 681 So.2d 1023.

As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any | ^improper influence, must be considered involuntary and inadmissible. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Morvant, 384 So.2d 765 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980); State v. Roddy, supra.

Emotional distress on the part of a defendant is not grounds for rendering a confession inadmissible unless it is so severe that the party confessing is unable to voluntarily do so. State v. Moseley, 587 So.2d 46 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1066 (La.1991); State v. McKnight, 539 So.2d 952 (La.App. 2d Cir.1989), writ denied, 548 So.2d 322 (La.1989); State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987), writ denied, 522 So.2d 1092 (La.1988). Likewise, notwithstanding the fact that a defendant is suffering from physical harm or claims that his mental capacity was impaired because of his physical condition at the time of his interrogation, his confession is nonetheless admissible unless he demonstrates that he was impaired to such a degree as to negate his comprehension and to render him unconscious of the consequences of what he was saying. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Hahn, 526 So.2d 260 (La.App. 2d Cir. 1988), writ denied, 532 So.2d 150 (La.1988); State v. Guidry, 94-678 (La.App. 3d Cir.12/07/94), 647 So.2d 502.

The admissibility of a confession is a question for the trial court. State v. Franklin, 35,268 (La.App.2d Cir.12/19/01), 803 So.2d 1057, writ denied, 02-0352 (La.02/07/03), 836 So.2d 85; State v. Roddy, supra. When determining admissibility, the trial court’s conclusions on the |! (¡credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. Loyd, supra. Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Franklin, supra; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082.

The saying that a picture is worth a thousand words applies to this case. As did the trial court, we have reviewed defendant’s videotaped confession in light of his claims that the statement should have been suppressed because he was hungry, thirsty and exhausted when he was questioned. According to defendant, these facts, as well as the “persistent and repeated interrogations by numerous skillful law enforcement officers” undermined the voluntariness of his statement.

The tapes show that during the questioning, defendant was not handcuffed. Defendant’s only complaint throughout the lengthy interview was that his feet were sore from wearing boots for so long. He asked for some water and one of the officers brought him a cup as soon as he requested it. Although defendant said that he had been in the woods for about a day and a half prior to the interview, he mentioned that he had slept some while in the woods. He also stated that he was able to hide from the people who were hunting him with dogs, although he did get shot at once.

Defendant, after giving several conflicting versions of the series of events, recalled minute details and gave what appears to be a logical, |17sequential recount of his actions. Although at times he cried and held his head in his hands, he did not mumble, hesitate or show any other signs of possible fatigue or confusion during the interview. A striking illustration of defendant’s mental alertness is when he responded to one of the officer’s accusations. During the interrogation, the officer accused defendant of planning all along to rape Mrs. Copeland; defendant reacted and emphatically stated that this was not true. Defendant seemed coherent and showed several other emotions, particularly sadness when he learned that Mrs. Copeland was dead and when he considered the impact his actions would have on his family.

In its ruling, the trial court indicated that it considered defendant’s personal appearance as a factor in its decision, commenting on the physical appearance of defendant, particularly how his hair looked. Admitted into evidence as exhibit D-3 was a videotape of a news film clip taped at a later date. While the trial court did not have this film footage when it made its decision to allow the videotaped confession into evidence, this court is allowed to consider all evidence in the record to make its decision. State v. Allen, 95-1754 (La.09/05/96), 682 So.2d 713; State v. Merchant, 490 So.2d 336 (La.App. 1st Cir.1986), writ denied, 496 So.2d 326 (La.1986). A comparison of the two film clips shows that defendant’s physical appearance on the night that he was questioned does not differ much from how he looked later at his court appearance.

The defendant in State v. Miller, 36,003 (La.App.2d Cir.07/25/02), 824 So.2d 1208, writ denied, 02-2480 (La.06/27/03), 847 So.2d 1253, | ^claimed that the trial court erred in failing to suppress his statement, urging that his confession was involuntary because he had only ten minutes of sleep before his arrest, suffered from high blood pressure and had a headache at the time of the questioning. Defendant also asserted that he was required to strip naked and surrender his clothing as potential evidence before he was interrogated. On the other hand, the officers testified that they had read defendant his rights and he indicated that he understood them before waiving them. The officers further testified that defendant did not appear unable to give a statement.

In affirming the trial court’s ruling, this court stated:

A trial court’s findings following a free and voluntary hearing are entitled to great weight and will not be disturbed unless unsupported by the evidence. State v. Durr, 28,197 (La.App.2d Cir.06/26/96), 677 So.2d 596; State v. English, 582 So.2d 1358 (La.App. 2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991). Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Pittman, 585 So.2d 591 (La.App. 5th Cir.1991), writ denied, 586 So.2d 545 (La.1991). Police testimony may overcome a defendant’s claim that his statement was involuntary because he suffered from a wound or lack of sleep. State v. Billiot, 94-2419 (La.App. 1st Cir.04/04/96), 672 So.2d 361, writ denied, 96-1149 (La.10/11/96), 680 So.2d 655.

State v. Miller, 824 So.2d at 1217.

In the instant case, two officers testified that defendant indicated that he understood his rights prior to waiving them in writing. They further stated that they neither offered defendant any inducements or made promises nor coerced or threatened him. One of the detectives also stated that defendant never requested any medical attention.

In this case, as in State v. Miller, supra, the police testimony (as well as the videotaped confession itself) rebutted defendant’s claims that his | ^condition at the time of the questioning undermined the voluntariness of his statement. The trial court’s conclusion that defendant’s statement was freely and voluntarily given is fully supported by the evidence.

This assignment of error is without merit.

Denial of Motion in Limine

According to defendant, the trial court erred in denying his motion in limine to exclude evidence of other crimes. Defendant argues that the facts surrounding the other alleged crimes, the sexual assault and death of Mrs. Copeland, are separate, distinct and unrelated to the aggravated kidnaping charge. In the alternative, defendant contends that the evidence should have been excluded because of the unfair prejudice it had the potential to create.

Defendant properly raised the objection to the introduction of evidence of the other crimes evidence in a motion in limine. Inasmuch as the alleged irregularity or error was objected to at trial level, this issue can be considered on appeal. La. C. Cr. P. art. 841; State v. Bosley, supra.

As set forth in La. C.E. art. 404(B)(1), though generally inadmissible, evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. State v. Lincoln, 34,770 (La.App.2d Cir.06/22/01), 794 So.2d 56; State v. Coates, 27,287 (La.App.2d Cir.09/27/95), 661 So.2d 571, writ denied, 95 2613 (La.02/28/96), 668 So.2d 365. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving the immediate context of Lohappenings near in time and place. State v. Colomb, 98-2813 (La.10/01/99), 747 So.2d 1074; State v. Lincoln, supra. The test of integral act evidence simply is not whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, supra, quoting from Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

In the instant case, the evidence of other crimes committed by defendant, the sexual assault and death of Mrs. Copeland, was admissible because these acts formed an integral part of the act or transaction that is the subject of the present proceeding, inasmuch as they were acts of defendant immediately following his forcible taking of the victim and her forced withdrawal of funds from the ATM. Defendant kidnaped Mrs. Copeland and demanded money. Instead of releasing the victim after he got cash from her, defendant forced her to drive to another parish, where he attempted to rape her, then put her in the trunk of her own car. Mrs. Copeland died as a result of injuries she sustained while attempting to escape from defendant. Clearly these events constituted one continuing transaction.

Presentation of the facts of the kidnap-ing alone would have been incomplete, particularly in light of the fact that the jury would have wondered where the victim was and why she was not testifying about the kidnaping. The investigation into Mrs. Copeland’s disappearance began in 1R1 Ouachita Parish at the request of her employer, who was trying to find his missing employee. During the course of this investigation, Ouachita Parish authorities contacted the Caldwell Parish Sheriffs Office, which happened to be investigating the death of the person that Ouachita Parish was looking for. Clearly, exclusion of this evidence would have resulted in the state’s inability to present the jury with all of the pertinent facts surrounding the instant offense.

We find no abuse of the trial court’s discretion in its ruling on defendant’s motion in limine.

This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


author: | TRAYLOR, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. Ricky E. CHATMAN, Appellant.
    No. 37,523-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Kidd-Culpepper by Paul Henry Kidd, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

Following a bench trial, the defendant, Ricky Chatman (“Chatman”), was convicted for the rape of a ten-year-old girl and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Chatman now appeals, alleging six assignments of error. For the following reasons, we affirm.

Facts

The victim testified that Chatman, who was thirty-seven years of age at the time of the offense, offered her five dollars to help him. He then led the victim to an overgrown, deserted area at the end of a street. Once isolated, he forced her to the ground, removed her blue jeans and pulled her panties down. He removed his own clothes and got on top of her. Although Chatman’s penis did not enter the victim’s vagina sufficiently to damage the hymen, the trial court concluded that there was sufficient penetration to constitute rape. The victim also reported that Chatman tried to make her perform oral sex on him, but she refused to open her mouth. He let the victim go, and she rode her bicycle to her aunt’s home where she reported that Chatman had raped her. The victim’s family contacted the police and Chatman was subsequently arrested and charged with rape.

Discussion

After trial, Chatman moved for a post verdict judgment of acquittal claiming that there was no evidence of penetration, and, therefore, the evidence could only-support a conviction for attempted rape. The trial court denied the motion, and Chatman now alleges the court erred in denying his motion for post verdict judgment of acquittal.

|;»La.C.Cr.P. art. 821 prorides that “[a] post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” Because this is a question of legal sufficiency, it should be reviewed first. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 978 (La.1992); State v. Hearold, 603 So.2d 731 (La.1992).

To sustain a conviction for aggravated rape in this instance, the state was required to show that Chatman had vaginal, oral or anal intercourse with a child under the age of twelve. La. R.S. 14:42. Completion of the crime requires penetration, however, “... any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” La. R.S. 14:41.

The victim’s hymen was not damaged by the assault, and the medical testimony, as well as the victim’s, indicated that Chat-man’s penis did not enter her vagina beyond the hymen. The victim testified that Chatman tried to insert his penis in her. He moved up and down on her but failed to fully insert his penis. She testified that he emitted “pee,” and forensic tests showed the presence of sperm belonging to Chatman in the victim’s panties and a prostate specific antigen (“PSA”), indicating the presence of male semen, was recovered from a vaginal swab. There was evidence of abrasions on the labia minora consistent with a rubbing motion, possibly caused by Chatman’s penis.

laChatmaris version of the event was that he got on top of the victim, but his penis only rubbed her legs. After a few minutes, he said that he got off of the victim, stood up and masturbated until ejaculation. He argues that the presence of his sperm in the victim’s panties, but not found in the vaginal swab (which showed only the presence of a minute amount of PSA), supports his version of the crime. He contends the PSA came from the victim’s underwear when she put her panties back on. Regarding the abrasions to the victim’s labia minora, Chatman claims they could have been caused by the seat of her bicycle.

Taken as a whole, the victim’s testimony that Chatman put his penis on her vagina was corroborated by all of the evidence. The location of the injury to her vagina, the forensic evidence showing the presence of sperm on her panties, and the PSA on her vagina supports the conclusion that Chatman’s penis penetrated only the external aperture of the victim’s genitalia and rubbed against the labia minora, but did not go beyond the hymen into the vaginal canal. Even this slight penetration, however, is sufficient to meet this element of the crime. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Murphy, 34,624 (La.App.2d Cir.04/06/01), 785 So.2d 197, writ denied, 2001-1259 (La.03/22/02), 811 So.2d 920; State v. Lewis, 577 So.2d 799 (La.App. 2d Cir.1991), writ denied, 582 So.2d 1304; State v. Allen, Jr., 2002-593 (La.App. 3rd Cir.11/06/02), 830 So.2d 606. Viewing this evidence in a light most favorable to the prosecution reasonably permits a finding of guilty on the charge of aggravated rape. Therefore, this assignment is without merit.

|/Turning to Chatman’s other assignments of error, he claims that this ease was not randomly allotted, and if it was, it was never formally reassigned to Judge Jones in Criminal Division Three.

The court minutes do not show any random allotment or assignment of Chatman’s case to Criminal Division Three. The record also does not reflect any objection by Chatman to the assignment or manner of assignment of his case to Judge Jones’ court.

The failure to object alone is fatal to this assigned error. La.C.Cr.P. art. 841. Nevertheless, assuming, for the sake of argument only, that the method of assignment of trial in this instance violated due process, Chatman must show some prejudice has resulted from the due process violation. The assignment of trial under a system that violates due process is subject to a harmless error analysis. State v. Mitchell, 1999-0283 (La.App. 1st Cir.06/22/01), 808 So.2d 664. (Citations omitted). No harm or prejudice has been shown or alleged in this instance. Accordingly, this assignment is without merit.

Next, Chatman argues that there was not an effective waiver of the right to a trial by jury. Louisiana C.Cr.P. art. 780 allows a defendant to “knowingly and intelligently” waive the right to trial by jury and elect to be tried by judge.

The transcript of the proceedings indicates that the trial court determined the extent of Chatman’s formal education, which ended at the eighth grade, and satisfied itself that Chatman, who could neither read nor write, understood the English language well enough to understand what his ^attorney told him about the case. The court asked Chatman if he had discussed the case with his attorney and “the best way to handle it.” Chatman said, “yes,” and the court then asked:

And you have indicated that you want to waive jury and proceed with a bench trial alone, correct?

The transcript states that Chatman’s response was “... inaudible ...”

The court then stated:

All right, I’m allowing you to do that as I indicated earlier. Now then, the court will proceed in the following way....

Our review of the transcript indicates that several of Chatman’s responses and remarks were transcribed as “... inaudible.... ” However, none of the statements made by the court or the attorneys at the proceeding were “inaudible.” This fact infers that Chatman did not speak loud enough to be recorded by the tape recorder so that his remarks could be transcribed.

On the other hand, the court apparently heard most of Chatman’s responses, and when it did not, it made him repeat answers it did not hear.

The court minutes of the proceedings on that day reflect that Chatman was present with counsel, Mr. Carl Cooper. Those minutes read as follows:

The defense waived a jury trial and will be tried by judge. Defendant sworn and the court talked with him about his right to a jury trial. Defendant understood his rights. Stipulations entered into as to the chain of custody of evidence taken to the crime lab....

Read together, the transcript and court minutes indicate that there had been a prior discussion between counsel and the court regarding the decision to waive a jury trial, followed by an open court discussion between the court and Chatman regarding his right to trial by jury and the decision to |fiwaive that right. Although Chatman’s specific response to the court’s question asking him if he wanted to waive his right to trial by jury and proceed with a bench trial could not be transcribed because it was “inaudible,” the court obviously heard Chatman’s response to be affirmative, as evidenced by its response to his inaudible response. The court minutes corroborate this reading of the transcript by stating that Chatman understood his right to trial by jury and waived it. Finally, we note that Chatman’s attorney was present with him, had obviously assisted him in the decision to waive trial by jury, and had advised the court beforehand. A defendant’s attorney can waive his right to a jury trial when the defendant is considered to have understood his right and consented to such a waiver. State v. Mandigo, 29,913 (La.App.2d Cir.10/31/97), 702 So.2d 351; State v. Tyler, 544 So.2d 495 (La.App. 2d Cir.1989).

We conclude that the presence of defense counsel, the minute entry, and the transcript reflect a knowing and intelligent waiver of the right to trial by jury by Chatman in open court and that the trial court did not err in making that determination. See State v. Pierre, 2002-2665 (La.3/28/03), 842 So.2d 321. Accordingly, this assignment of error is without merit.

Chatman next argues that the trial court should have recused itself once Chat-man waived the right to trial by jury since it had earlier rejected a plea offer that had been made to him consisting of a fifteen-year sentence in exchange for a guilty plea. Chatman contends the trial judge’s rejection of the plea demonstrated his bias against Chatman and his unsuitability to try the case. Chatman claims that the court’s prejudice against him was further ^demonstrated by its comments against so-called “jury nullification” made after trial when it rendered its verdict.

Louisiana C.Cr.P. art. 671 provides, in pertinent part:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

A trial judge is presumed to be impartial. State v. Edwards, 420 So.2d 663 (La.1982). In order to obtain a recu-sation based on bias, prejudice, and personal interest, the party seeking the recu-sation must establish more than conclusory allegations. State v. Boudreaux, 95-153 (La.App. 5th Cir.09/20/95), 662 So.2d 22, writ denied, 96-0840 (La.05/30/97), 694 So.2d 233. In this case, there is no support in the record for Chatman’s claim that the trial judge had rejected his plea agreement or that the trial court had any bias against him. The court’s remarks regarding jury nullification reflected its view that the verdict should fit the facts of the crime proven by the evidence. This assignment is, therefore, without merit.

At trial, the state elicited testimony from a former victim of Chatman who testified that he sexually molested her when she was six years old. She testified that Chatman entered her bedroom through a window and began to undress and fondle her, promising her money and gifts. He attempted to penetrate the young victim’s vagina with a fork and with his penis. |« Chatman pled guilty to attempted indecent behavior with a juvenile for this crime and was sentenced to two and one-half years in prison.

Regarding this testimony, Chatman alleges that the trial court failed to hold a proper hearing pursuant to State v. Prieur, 277 So.2d 126 (La.1973) to enable the State to introduce the other crimes evidence.

Louisiana C.E. art. 404(B) provides, in pertinent part:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The record shows that the state sent notice to Chatman on October 7, 2002 of its intent to introduce the evidence of this crime for the purposes allowed by the statute. The record also shows that the defense agreed to waive a Prieur hearing because it had received notice of what crimes the state planned to introduce, and, after discussion with the court, it agreed to a procedure whereby the court would allow the defense to raise objections or have a hearing during the course of trial when the evidence was proffered. In this instance, after the testimony was introduced, the court expressly gave the defense an opportunity to object to and argue the admissibility of the evidence, to which the defense responded, “No objection.”

Thus, Chatman waived the Prieur hearing twice, first when counsel agreed to defer a hearing until the evidence was proffered, and second, |flwhen he was given the chance to object to the evidence and did not do so. Accordingly, even if it was error to admit the evidence, it cannot be availed of after a verdict has been rendered unless it was objected to at the time of occurrence. La.C.Cr.P. art. 841.

Finally, Chatman claims his counsel was ineffective in advising him to waive trial by jury. He argues that he would have been better served had his counsel advised him to take his chances before a jury rather than a judge, who had rejected a plea bargain of a fifteen-year sentence.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, Chatman first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed Chatman by the Sixth Amendment.

The relevant inquiry is whether Chat-man’s counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.06/05/03), 850 So.2d 738; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney’s performance requires his conduct to be devaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Roland, supra; Moore, supra.

Second, Chatman must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive Chatman of a fair trial, a trial whose result is reliable. Strickland, supra, at 2064. Chatman must prove actual prejudice before relief will be granted. It is not sufficient for him to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 653 So.2d 174, writ denied, 95-1398 (La.11/03/95), 662 So.2d 9.

A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and eonelusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067.

In the present case, Chatman argues that his counsel should have advised him to “take his chances before a jury rather than a judge who had rejected a plea bargain of a 15-year sentence.” The record shows that defense counsel’s advice was based on a trial strategy raising the distinction between legal and actual sexual penetration and the complexity of the ^forensic evidence of the crime. Specifically, counsel obviously believed that perhaps the greater ability of a judge to understand and interpret the evidence regarding the presence of the sperm only in the victim’s panties and its absence in the vaginal swab, which the defense argued supported its version of the event, could result in a favorable verdict. Simply stated, he thought he would fare better in front of a judge, instead of a jury.

We find no error constituting ineffective assistance of counsel in this strategy decision. Chatman has failed to show either an error or, if an error, any prejudice to his case. See Strickland, supra. This assignment is, therefore, without merit.

Conclusion

For the foregoing reasons, Chatman’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.