text:
    STATE of Louisiana v. Joseph N. CHISLEY, Jr.
    No. 03-KA-426.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Kia M. Habistreitinger, Assistant District Attorneys, Gretna, LA, for The State of Louisiana, Plaintiff-Appellee.
    Bruce G. Whittaker, Louisiana Appellant Project, New Orleans, LA, for Joseph N. Chisley, Jr., Defendant-Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

On April 28, 2000, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Joseph N. Chisley, Jr., with possession of between 28 and 199 grams of cocaine, a violation of LSA-R.S. JO^JCF). The defendant was arraigned on May 2, 2000, and pled not guilty.

Trial was held on August 14-15, 2001, and a 12-person jury found the defendant guilty as charged. On April 22, 2002, the trial court sentenced the defendant to 15 years at hard labor, the first five of which would be served without benefit of parole, probation or suspension of sentence. On that day, the State filed a habitual offender bill of information, alleging the defendant to be a third felony offender. The defendant was apprised of the allegations in the bill, and entered a denial. The judge scheduled a habitual offender hearing for later in the day, and called a recess.

When the court reconvened, the defendant expressed his desire to withdraw his denial as to the habitual offender allegations, and pled guilty to being a second felony offender. The judge advised the defendant of his right to a habitual offender hearing and his right to remain silent. The defendant stated he understood those ^rights, and wished to waive them. The judge vacated the defendant’s original sentence, and imposed an enhanced sentence of 20 years at hard labor.

On December 3, 2002, the defendant filed an application for post-conviction relief in the trial court, requesting an out-of-time appeal. On December 9, 2002, the trial court issued an order granting the defendant an appeal.

FACTS

Agent Dawn Gentner testified that she is assigned to the narcotics division of the Jefferson Parish Sheriffs Office. More specifically, she is a canine officer. On April 6, 2000, Agent Gentner and several other officers executed a search warrant at 1310 Claiborne Court in Jefferson, Louisiana. Gentner applied for and obtained the warrant. The object of the search was to uncover and seize narcotics.

Sergeant Bruce Harrison was the first officer to enter the house. Detective Jeff Heggelund followed. Harrison announced that he was a police officer and was there to execute a search warrant. He testified there were seven people in the living room, located in the front part of the house. Harrison heard the sounds of activity coming from the back of the house, and he looked down, a hallway to see the defendant and Mark Filmore peering at him from the kitchen entryway. Harrison ordered the men into the hallway, and they complied. Heggelund secured the two men for safety reasons, placing them in handcuffs in the hallway.

Harrison then entered the kitchen and saw, in plain view, a large amount of what appeared to be crack cocaine on a dinner plate on the floor. He estimated that the material on the plate weighed 40 grams. There was also about 60 grams of crack in a clear plastic bag on the table. Harrison testified that some of the crack was cut into individual dosage units, and larger pieces were being prepared for cutting. There was also a scale in the kitchen, which Harrison believed was being used to weigh the crack. Harrison seized the plate and the crack it contained, as well as the crack on the table and the scale.

LSergeant Harrison informed Detective Heggelund of his findings, and Heggelund placed the defendant and Filmore under arrest. In the hallway, Heggelund searched the defendant’s person incident to arrest. He recovered, from the defendant’s pants pocket, four pieces of crack cocaine wrapped in a napkin. Heggelund then collected personal information from the defendant following the arrest, and the defendant told him that his address was 1310 Claiborne Court.

Agent Gentner and her canine were the last to enter the house. When Gentner attempted to check the area in back of the house for contraband, she encountered an aggressive pit bull. The defendant told her the dog in the yard was his, and he attempted to assist Gentner by removing the dog. The dog broke loose and tried to attack the officers. However, the defendant managed to catch the dog and secure it. Gentner testified that she field-tested the substance found in the kitchen, and the result was positive for cocaine.

Edgar Dunn, a forensic chemist with the Jefferson Parish Sheriffs Office, was accepted by the court as an expei't in forensic chemistry and analysis of controlled dangerous substances. He testified that he tested the rock-like material seized in the instant case, and that it was positive for cocaine. He further testified that the weight of the cocaine found on the plate was 42.52 grams, the cocaine from the kitchen table weighed 60.66 grams, and the pieces of crack seized from defendant weighed .61 grams.

Defense witnesses Troy Powell, Mary Filmore, Joseph Louis Chisley and Dianne Chisley all testified that they were at the Claiborne Court house when the police arrived. Ms. Powell, the defendant’s wife, testified she was outside of the house. She saw an officer search the defendant on the front porch, and the officer did not find any contraband. Ms. Filmore, who is Mark Filmore’s wife and the defendant’s sister, testified she was in the living room when police arrived. She stated that she saw the defendant emerge from a bedroom, not the kitchen. She [ ¿further testified that she saw the officers search the defendant outside, not in the hallway. Joseph Louis Chisley, the defendant’s brother, testified he was in the living room when police entered. He also saw the defendant exit a bedroom, and did not see an officer search the defendant. Ms. Chisley, the defendant’s sister-in-law, was inside the house when the officers arrived. She saw them arrest the defendant, and testified that the defendant was searched outside the house.

DISCUSSION

In his first assignment of error, the defendant contends that the evidence was insufficient to support the jury’s verdict. Specifically, he complains that the State failed to prove that he possessed over 28 grams of cocaine. He argues that there were several individuals in the house at the time of the police search, and that the State failed to make an adequate showing that he possessed any more crack cocaine than the four pieces the officers found in his pocket.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Id. at 608. When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of | rJnnocence.” LSA-R.S. 15:438. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Qutoum, 02-780 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 326, writ denied, 03-0595 (La.5/30/03), 845 So.2d 1059.

To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant knowingly and intentionally possessed the contraband, in this instance cocaine, in the amount of at least 28 but less than 200 grams. LSA-R.S. 40:967(F). Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761. Possession can be either “actual” or “constructive.” State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923, 929.

A person not in physical possession of a drug may have constructive possession when the contraband is under his dominion and control. State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/02), 812 So.2d 7, 9, writ denied, 02-0712 (La.9/13/02), 824 So.2d 1188. The key factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that illegal drugs were in the area, his relations with a person found to be in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use by the defendant, the existence of drug paraphernalia, and evidence that the area was frequented by drug users. Id.; State v. Manson, supra.

In the instant case, the evidence did not show that the defendant had actual possession of the crack cocaine, with the exception of the four rocks found in his pocket. The question, then, is whether the defendant had constructive possession of the cocaine that was found in the kitchen, i.e., whether he had dominion and |7control over it. Undisputed evidence showed that the defendant lived at 1310 Claiborne Court, the residence from which the crack cocaine was seized. Detective Heggelund and Sergeant Harrison testified that, when the defendant was processed following his arrest, he gave that address as his place of residence. The defendant had also given Harrison the Claiborne Court address on a prior occasion. The defendant clearly had access to the place where the drugs were found.

The defendant argues that the search warrant application refers to a black female who sold drugs to an undercover officer at the Claiborne Court house. However, the defendant fails to note that the warrant application also describes a drug transaction between an undercover officer and a man at 1310 Claiborne Court. The defendant further argues that there were several people in the residence with him at the time the search was executed, and that his mere presence in the house does not establish constructive possession. It is true that being a resident of the premises where drugs are found is not, in and of itself, sufficient to prove constructive possession. State v. Kelly, 01-321 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 02-3266 (La.11/1/02), 828 So.2d 565. However, a subject can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control of the drugs. State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, 888.

Sergeant Harrison testified he was the first officer to enter the house. He saw seven people in the “front room” or living room. He scanned the room for any illicit activity. Seeing none, he investigated noises emanating from the back of the house. He saw the defendant and Mark Filmore stick their heads out of the kitchen and look down the hallway. After securing the two men, Harrison entered the kitchen and saw crack cocaine in plain view. Aside from the defendant and his brother-in-law, Filmore, no one was in the kitchen at the time the officers entered lathe house. Given that the defendant was in the kitchen, and that the cocaine was in plain view on the kitchen table and floor, it can be reasonably inferred that the defendant knew the cocaine was there. The fact that the defendant had crack cocaine in his pocket is further evidence of guilty knowledge.

The presence of drug paraphernalia, i.e., the scale and the razor blade, is indicative of dominion and control. Harrison testified that some of the crack in the kitchen had been cut into small, individualized doses. He further testified that a scale and razor blade located on the table would have been used to cut and weigh the crack.

The testimony and evidence revealed that the defendant exercised dominion and control over the cocaine in the kitchen sufficient to constitute constructive possession. Accordingly, we find that the evidence, viewed in the light most favorable to the State, proved beyond a reasonable doubt that defendant possessed between 28 and 199 grams of cocaine. Therefore, this assignment of error is without merit.

In his second assignment of error, the defendant asks this Court to review the record for errors patent, pursuant to LSA-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). The errors patent review revealed the following error.

According to the waiver of rights form signed by the defendant, the defendant pled guilty to being a second felony offender, and he was sentenced to 20 years at hard labor. We note that this sentence is illegally lenient.

The Louisiana Supreme Court has held that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 521. As of April 6, 2000, the date of the underlying offense, LSA-R.S. 40:967(F) provided that the sentencing range for possession of 28 to 199 grams of cocaine was ten to 60 years. Subsection G of the ^statute provided that, “[w]ith respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.”

As a second felony offender, the defendant was subject to the sentencing range prescribed by LSA-R.S. 15:529.1(A)(l)(a), which, at the time of the underlying offense, provided:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Additionally, Subsection G of the Habitual Offender Law requires that any sentence under that statute must be imposed without benefit of probation or suspension of sentence. At the time of the underlying offense, the applicable sentencing range for the defendant as a second felony offender was 30 to 120 years. During the habitual offender proceedings, the judge erred in informing the defendant he was subject to a sentencing range of 20 to 60 years. It is unclear how the judge arrived at those numbers. Even under the current sentencing provisions of LSA-R.S. 40:967(F), the penalty for a second offender is 15 to 60 years. As a second felony offender, the defendant should have received a sentence of at least 30 years, without benefit of probation or suspension of sentence, and without the benefit of parole for at least the first ten years of the sentence.

Neither the State nor the defendant has raised the illegal sentence issue in the trial court or on appeal. However, this Court has the authority under LSA-C.Cr.P. art. 882 to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799. Accordingly, we vacate the defendant’s illegally lenient habitual offender sentence and remand the matter to the trial court for re-sentencing in accordance with the law in effect at the time of the underlying offense. However, we reserve the defendant’s right to withdraw his guilty plea as a second felony offender, because a plea agreement that affords the defendant an illegally lenient sentence is an absolute nullity which cannot be confirmed on appeal. State v. Guilbeaux, 99-591 (La.App. 5 Cir. 11/10/99), 749 So.2d 16, 19.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction. We vacate the defendant’s sentence on the multiple bill, and remand the matter for re-sentencing, reserving the defendant’s right to withdraw his plea of guilty to being a second felony offender.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

      . Mark Filmore was charged in the same bill of information as a co-defendant. This appeal concerns only Joseph N. Chisley, Jr., and not co-defendant Mark Filmore.


source: Caselaw Access Project

author: | .WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ricardo R. TOVAR.
    No. 03-KA-513.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for The State of Louisiana, Plaintiff-Ap-pellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Ricardo To-var, Defendant-Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | .WALTER J. ROTHSCHILD, Judge.

On January 25, 2002, the defendant, Ricardo Tovar, was charged in a bill of information with possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966(A). He pled not guilty and filed several pretrial motions, including a motion to suppress the evidence. A hearing was held on the motion to suppress evidence on July 10 and 25, 2002, after which the trial court took the matter under advisement. On July 30, 2002, the trial court denied the motion to suppress. Thereafter, on September 23, 2002, the defendant withdrew his not guilty plea and entered a guilty plea, reserving his right to challenge the trial court’s denial of his motion to suppress, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In accordance with a plea agreement, the defendant was sentenced to five years at hard labor. His sentence was suspended, and the defendant was placed on three years of active probation.

FACTS

On January 2, 2002, Agent Jeff Hegge-lund, with the Jefferson Parish Sheriffs Office, was contacted by Detective Scott Zemlik, with the Gretna Police 1 aDepartment, and advised that a reliable confidential informant stated there would be a delivery of marijuana by a white female residing at 521 Michael Street in Marerro to the Lapalco/Manhattan area. Agent Heggelund set up surveillance of the home which involved six agents.

During the surveillance, a Dodge sports utility vehicle was observed pulling up to the residence. A white male, later identified as the defendant, exited the vehicle and entered the home. Thereafter, a white female, subsequently identified as San-draye Vedros, exited the residence and went next door to 525 Michael Street where she had a brief conversation with another white female, later identified as Lisa Kenney. Vedros returned to 521 Michael Street. Approximately two minutes later, Vedros again exited 521 Michael Street carrying a bulky brown purse. She went to 525 Michael Street and entered a small white vehicle driven by Kenney. The two drove away from the residence. The police followed the vehicle, believing one of the two women was the white female spoken about by the informant.

The police stopped the vehicle at the intersection of Manhattan and the West-bank Expressway. Vedros was asked to exit the vehicle at which time one of the officers noticed a bulky object in her waistband. When asked whether she had any weapons, Vedros started crying and stated she had marijuana in her pants. A bag containing approximately one pound of marijuana was removed from Vedros’ pants. She was arrested and advised of her Miranda rights. Vedros subsequently stated she had additional marijuana in her purse.

Agent Heggelund arrived at the scene and met with Vedros. He advised her of her rights and completed a rights of arres-tee form. She waived her rights and gave a recorded statement. In her statement, Vedros consented to a search of her residence at 521 Michael Street.

1 ¿Agent Heggelund accompanied Vedros back to her residence, where the defendant and a small child were present. The home was searched with a canine unit. A bag with marijuana remnants, a scale, and a man’s jacket containing $2,000 were found in the closet of the master bedroom and a scale was found in plain view. Inside the garage, a small amount of marijuana was found inside a tackle box and some packaging material used to transport marijuana was found in a cardboard box. According to Agent Heggelund, he advised the defendant of his rights, even though the defendant was not under arrest at that time. The defendant stated that he had lived in the home for one week. He denied having access to the garage and denied any knowledge of what was going on in the garage but admitted the tackle box belonged to him. The defendant was subsequently arrested.

DISCUSSION

On appeal, the defendant argues the trial court erred in denying his motion to suppress the evidence. He asserts that the tip from the confidential informant was insufficient to justify a reasonable suspicion to conduct an investigatory stop, which ultimately led to the consent to search and seizure of the marijuana. The defendant contends that the tip was general, unparticularized and non-predictive. He maintains that the confidential informant’s reliability was not established and that police corroboration was minimal. Thus, the defendant claims that the stop of the vehicle was illegal, and Vedros’ consent to search after her illegal detention was invalid, and therefore, the evidence seized as a result of the illegality should have been suppressed.

At a hearing on a motion to suppress, the State bears the burden of proving the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 705, writ denied, 02-0234 (La.1/31/03), 836 So.2d 58.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops which allow officers to stop and interrogate a person reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La.App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200. Investigatory stops require reasonable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the .individual’s right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

Under certain circumstances, an informant’s tip can provide reasonable suspicion to detain and question a person. State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 17, writ denied, 00-0599 (La.4/7/00), 759 So.2d 765. Generally, there must be some corroboration of the informant’s tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, 1270. The United States Supreme Court has applied a “totality of the circumstances approach” which considers an informant’s veracity, reliability and basis of knowledge as highly relevant in determining the value of an informant’s tip. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983); State v. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 801, unit denied, 02-2090 (La.2/21/03), 837 So.2d 627. “If the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416; State v. Morgan, 00-1501 (La.App. 5 Cir. 3/28/01), 783 So.2d 514, 519.

At the motion to suppress hearing in the present case, the State presented only the testimony of Agent Jeff Heggelund. Agent Heggelund testified that he was advised by a Gretna police officer, Detective Scott Zemlik, that the officer received information from a confidential informant that a white female residing at 521 Michael Street would be making a delivery of marijuana to the area of Lapalco and Manhattan Boulevard. Agent Heggelund learned that the female would have to arrange for a ride, but the informant did not provide any type of physical description of the white female, and the type of vehicle to be involved in the delivery was unknown. Additionally, Agent Heggelund had no information regarding how the marijuana was to be packaged or transported, and he was unaware of the time that the delivery was supposed to take place.

Agent Heggelund testified that he asked Detective Zemlik about the reliability of the confidential informant and concluded, based on Detective Zemlik’s responses, that the informant was a reliable source. Agent Heggelund could not recall the specific questions he asked or Detective Zem-lik’s specific responses but he understood that the informant had provided information in the past that had led to an arrest and conviction. Agent Heggelund also understood |7that the informant was not being paid but was working for Detective Zemlik “for consideration for other charges.”

Based on the information he received, Agent Heggelund set up surveillance of 521 Michael Street. During the surveillance, the police observed a Cadillac with a black male and a white male arrive at the residence. The driver entered the residence and then departed a few minutes later in the Cadillac. The driver was not observed to be carrying any type of package. Thereafter, a Hispanic female, Ved-ros, was seen exiting the residence. On her first exit, Vedros was not carrying anything. She went to the neighboring house and then returned to 521 Michael Street. On Vedros’ second exit from 521 Michael Street, she was carrying a bulky brown purse. According to Agent Hegge-lund, Vedros secured a ride from her neighbor and started traveling toward the Lapalco/Manhattan area. Agent Hegge-lund testified that he was not told of the route the vehicle would take to the delivery destination. The vehicle in which Vedros was riding was stopped at the intersection of Manhattan and the Westbank Expressway. Agent Heggelund stated that the vehicle committed no traffic violations prior to the stop.

The issue before the Court is whether the tip from the confidential informant together with the observations of the police constituted reasonable suspicion to stop the vehicle in which Vedros was riding.

In a similar case, State v. Rodriguez, supra at 19, this Court determined that the information received from a confidential informant was insufficient to establish reasonable suspicion to stop the vehicle in which the defendant was riding. In Rodriguez, the police received information from Agent Garza of the U.S. Drug Enforcement Administration (DEA) that the agent had received information from a reliable confidential informant that a specific residence was involved in distribution and storage of heroin. The DEA agent learned that a large quantity of heroin was to be delivered by one of the residents of the address. The police set up | Ssurveillance of the address and observed two individuals, including the defendant, exit the apartment. The police stated that the individuals entered a vehicle and left the premises, but did not act suspiciously. The police checked the registration of the vehicle and learned it was registered to a person at the address specified by the informant. The police subsequently stopped the vehicle. The vehicle had not committed any traffic violations and did not exhibit any suspicious activity before it was stopped. Upon being stopped, the driver fled on foot and the defendant, who was a passenger, threw a black plastic bag, which contained a brown powder that later tested positive for heroin, out of the window. The defendant was arrested and a search warrant was obtained for the apartment. Heroin was found in the refrigerator and paperwork in the defendant’s name was found in the apartment.

This Court found the informant’s tip to be “painfully lacking in specificity” and “sparse at best.” Id. at 18. The Court stated that the tip did not provide a range of specific details that could be corroborated by the officers and amounted to little more than an address. Id. It was further noted that no information was provided to establish the veracity, reliability or basis of knowledge of the informant and the officer did not know when the informant’s tip was received. Further, the informant’s tip “did not describe a particular person, by name or description, a particular vehicle, by make, color or license number, or a particular place where the vehicle would go.” Id.

This Court concluded that the State did not meet its burden of proof because there was no showing made of the reliability of the informant and the limited specificity of the information in the tip was insufficient to provide reasonable suspicion to justify the initial stop of the vehicle. Id. at 19. The Court noted that the police were not powerless to act on the non-predictive information that they received, because the officers could have set up more extensive surveillance of the 13apartment and the people who exited it until they observed suspicious or unusual behavior. Id. at 19-20.

Similar to the police in Rodriguez, Agent Heggelund did not know when the tip was received or what time the predicted delivery was to take place. Furthermore, just like the informant in Rodriguez, the informant in the present case did not describe the person involved in the delivery, other than to say she was a white female. Although the informant specified the female would have to arrange a ride, no information was given regarding from whom the ride was to be obtained or the type of vehicle that would be involved in the delivery.

As stated above, there generally must be some corroboration of the informant’s tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Alabama v. White, supra; State v. Robertson, supra at 1270. In the present case, the predictive information provided by the informant was minimal. Although the police corroborated the fact that there was a white female at 521 Michael and that she would arrange for a ride, there was no corroboration of the informant’s tip that the vehicle would go to the area of Lapalco/Manhattan, because the vehicle was stopped prior to reaching the area.

Although an informant’s tip can provide reasonable suspicion to detain and question a person under certain circumstances, we find that the Informant’s tip in this case was not specific and predictive enough to provide reasonable suspicion for an investigatory stop. Accordingly, we find that the stop of the vehicle in which Vedros was riding was illegal and her subsequent arrest was illegal. The issue then becomes whether the illegality of the arrest so tainted Vedros’ consent as to require the suppression of the evidence seized in the search of the residence pursuant to that consent.

A voluntary consent to search made after an illegal arrest is only valid when the circumstances show no exploitation of the illegality. State v. Zielman, 384 So.2d 359, 363 (La.1980). Factors to consider in determining whether the consent was a result of the exploitation of the illegal arrest are: 1) whether the governmental officers adequately informed the accused that she did not need to comply with their request, 2) the temporal proximity between the arrest and the consent, 3) the presence of intervening circumstances, and 4) the purpose and flagrancy of the official misconduct. State v. Mitchell, 360 So.2d 189, 191 (La.1978), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

In the present case, Vedros’ consent appears inextricably linked to the initial illegal arrest. She gave her consent to search at the scene of the arrest shortly after the arrest occurred. There were no intervening circumstances between the arrest and the consent. Additionally, there is nothing in the record to suggest Vedros was advised of her right to refuse consent. Accordingly, we find that Vedros’ consent to search was an exploitation of her illegal arrest. As such, the evidence seized from the residence was the fruit of the illegal stop and tainted consent, and it should have been suppressed. Therefore, we reverse the denial of the defendant’s motion to suppress, and set aside the defendant’s conviction and sentence. The case is remanded for further proceedings.

As requested by the defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). No errors patent were found.

DECREE

For the reasons set forth above, the trial court ruling denying the defendant’s motion to suppress is reversed. We hereby vacate and set aside the defendant’s conviction and sentence, and we remand the matter for further proceedings.

REVERSED AND REMANDED.

      . Co-defendant, Sandraye Vedros, was also charged in the bill of information.


author: | JAMES L. CANNELLA, Judge.

text:
    Pamela Lee HOOKFIN v. ADVANTAGE NURSING SERVICES, INC. and Louisiana Workers' Compensation Corporation.
    No. 03-CA-340.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Charles C. Holbrook, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Appellants.
    Nancy Silbert, Dennis D. Spurling, Wolfe, Begoun & Pick, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE ST. PIERRE, Pro Tempore.
   | JAMES L. CANNELLA, Judge.

The Defendants, Advantage Nursing Services, Inc. and Louisiana Workers’ Compensation Corporation, appeal from a judgment in favor of the Plaintiff, Pamela Lee Hookfin. We reverse.

On May 9, 2001, while employed as a Licensed Practical Nurse (LPN) assigned to the Waldon Healthcare Center (Waldon) in New Orleans, the Plaintiff slipped and fell. She suffered a contusion and abrasion to her knee and a contusion to her left wrist. She was anxious and stressed from the fall and she complained of intermittent left side numbness. Her blood pressure was elevated and the nurses at Waldon monitored her for one hour before sending her to Concentra Medical Center (Concen-tra). Her blood pressure there was 182 over 110, which is dangerously elevated. The Plaintiff has a history of high blood pressure, diabetes and thyroid problems. After treating her contusions, the doctor at Concentra instructed her go to an emergency room or to her family doctor for treatment of her blood pressure problem. That day she was unable to see her doctor, Dr. Jean Desse, so she went home to sleep. The next day, she went to the emergency with stroke symptoms, numbness on her left side and |,-¡difficulty walking. Her blood pressure was 165 over 114. She remained in the hospital until May 13, 2001.

On June 25, 2001, the Plaintiff filed a Disputed Claim for Compensation. The trial was held on September 11, 2002. The workers’ compensation judge rendered a judgment in favor of the Plaintiff on October 29, 2002, finding that the Plaintiff was injured in the course and scope of her employment, that she proved the causal connection between her stroke and subsequent depression and the accident, that she is temporarily and totally disabled from the date of the accident, that she is entitled to all of her medical expenses related to her disability from the stroke and from her psychological injury, and that the Defendants were arbitrary and capricious in refusing to pay benefits. She was awarded $2,000 in penalties and $2,000 for attorney’s fees.

On appeal, the Defendants contend that the trial judge erred in finding that the stroke resulted from her slip and fall, that the trial judge erred in finding that the Plaintiff is temporarily totally disabled, and that the Plaintiff is entitled to psychological medical benefits.

The manifest error standard of review applies to factual findings in a workers’ compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Scuderi v. Crazy Johnnie Cafe, Inc., 02-243. p. 4 (La.App. 5th Cir.10/16/02), 831 So.2d 1037, 1040. In applying the manifest error-clearly wrong standard, we must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Chaisson, 97-1225 at p. 13; 708 So.2d at 380; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though we may feel that its own evaluations and inferences are as reasonable. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Gray v. H.B. Zachary Const. Co., 01-276, p. 6 (La.App. 5th Cir.9/25/01), 798 So.2d 271, 274, writ denied, 01-2847 (La.1/4/02), 805 So.2d 207. Thus, where there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. Thus, if the factfinder’s findings are reasonable in light of the record, we may not reverse or modify the judgment. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040-1041.

La.R.S. 23:1021(1) defines an accident as, “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” [Emphasis added]. La.R.S. 23:1021(7)(a) provides that, Injury and personal injuries include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

La.R.S. 23:1021(7)(e) states:

A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. [Emphasis added]

| BThe Plaintiffs treating physician, Dr. Desse, first testified that he did not know if the stroke was caused by the fall. In later questioning, he stated that it was possible that the physical action of falling and the anxiety produced as she was falling could have caused a blood clot in the brain to break loose, triggering the stroke. However, even after extensive questioning on this issue, he could not state beyond a possibility that the fall triggered a stroke. The phrases he used were that it might have contributed, that it was possible, and that it is “very hard to say.” He was able to relate the stroke to her uncontrolled high blood pressure, which made the Plaintiff a “ticking time bomb” for a perivascu-lar event.

Dr. Desse further testified that he believed the Plaintiff was having stroke at the time of the fall, based on her complaints of left side numbness. That numbness complaint was noted in the medical notes from Concentra, along with her other injuries. Dr. Desse stated that the physician at Concentra told the Plaintiff to go to an emergency room or see her personal doctor because of her symptoms of severely elevated blood pressure and left side numbness, but failed to instruct her to do so with the proper urgency or immediately send her to the emergency room. Dr. Desse thought that that doctor “dropped the ball” because emergency rooms have medication that can dissolve a blood clot, if given within a certain time. He related the subsequent mental depression to the effects of the stroke.

Dr. Desse was unable to state that the stroke was in fact cause wholly or in part by the fall. Each time the doctor was questioned on this fact, he admitted only to the possibility that a fall could trigger a stroke, and reiterated that her past history of uncontrolled high blood pressure was the main factor, if not the only factor involved. Speculation as to causation is not sufficient to prove a perivascular injury in a workers’ compensation case. The Plaintiff must prove the injury by clear and convincing evidence. Here, the Plaintiff failed to bear her burden of proving by clear and convincing evidence that the fall caused or | ^contributed to the disabling stroke or that there was any extraordinary stress that would have triggered it. Thus, we find that the trial judge erred in finding that the Plaintiff is entitled to workers’ compensation benefits for the stroke and the depression that resulted from the stroke.

In light of our finding on causation, we must also reverse the finding as to penalties and attorneys fees since the issue was reasonably disputed and the Plaintiffs condition is not related to the Plaintiffs work related fall.

Accordingly, the judgment of the workers’ compensation judge is hereby reversed. Costs of appeal are assessed against Plaintiff.

REVERSED.


author: I JAMES L. CANNELLA, Judge.

text:
    Nancy Blackwell ATKINSON v. Lloyd J. LeBLANC, Jr. and CNA Insurance Company.
    No. 03-CA-365.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Jacques F. Bezou, The Bezou Law Firm, Covington, LA, for Appellant.
    Nancy J. Marshall, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I JAMES L. CANNELLA, Judge.

Plaintiff, Nancy Blackwell Atkinson (Atkinson), appeals from the trial court judgment rendered in her legal malpractice case, granting the exception of prescription/peremption filed by the Defendants, Lloyd J. LeBlanc, Jr. (LeBlanc) and his insurer, Coregis Insurance Company. For the reasons which follow, we affirm.

This malpractice action arose out of Le-Blanc’s alleged negligent representation of Atkinson in a defamation suit. In 1986, Atkinson filed a defamation action against her former employer Brown and Root. Her original attorney withdrew. Atkinson asserts that she retained LeBlanc to represent her in 1995. However, no action was taken in the lawsuit for an extended period of time and on motion of Brown and Root, the case was dismissed on grounds of abandonment in March of 2000. LeBlanc notified Atkinson of the problems with her case by telephone in November and then by letter dated December 6, 2000, which provided as follows:

Dear Nancy:

After our conversation on Wednesday, November 29th, I went to the Court House to check the record in your case. Going through the case I noticed that there was no activity in the file since 1996.
The defendant’s attorney filed a Motion to Dismiss on the grounds of abandonment. Evidently all of the filings that had been done up to 1996 had been mailed personally to you at 1902 Tulsa, Deer Park, Texas, 77536.
1 aSince you never mentioned this, I assumed you never received anything. I have enclosed a copy for your review. I spoke to Judge St. Pierre who was very negative about re-opening the case, even though you probably were not notified. He said due to the age of the case and the time span between the original filing of 1986 and 1997, that something should have been done during that period of time.
If you receive this letter before we talk, please contact me.

On August 10, 2001, after receiving notice that her suit against Brown and Root had been dismissed, Atkinson filed an Ethical Conduct Complaint with the Louisiana Office of Disciplinary Counsel (LODC). After describing various conversations she had with LeBlanc, Atkinson wrote in the complaint,

Then in November of 2000, he told me that the case had been dismissed in March for abandonment. This I could not believe because he had supposedly been talking to the Judge all these years. I asked him to talk with the judge to see if we could get it back into court because he was not notified and the courts were sending information to me in Texas knowing fully well that I was a resident of the state of Arkansas. He said he would and the attached letter was the outcome.
I did not abandon my case, Mr. LeBlanc is responsible for that. Brown & Root tried for years to get a summary judgment on this case and could not get it done because Judge Marino felt I deserved to have my “day in court”. I did not get my day in court and feel that right was taken away from me because of lies and negligence on the part of Mr. LeBlanc and the courts of St. Charles Parish.

On August 26, 2002, LeBlanc sent Atkinson a letter of apology and a check for $10,000. In that letter, LeBlanc stated:

I am writing you now to do what I should have done a long time ago. I am writing to apologize for what happened in your case.
I should have either enrolled as counsel of record on your behalf, and taken steps to bring the case to a conclusion, or I should have told you that I was unable to represent you.
I deeply regret my failure in this regard.
Enclosed is my check in the amount of $10,000.00 which I hope will serve as some compensation for my failures. Accepting this check will not adversely affect any of your rights against me. You have the right to seek the advice of an independent attorney with respect to you claims against me.
I will understand if you do not accept my apology. I only wish I had given it earlier.

14Following receipt of the letter and check, Atkinson filed the instant legal malpractice suit on September 27, 2002, asserting damages from LeBlanc’s failure to prosecute her claim. In response, on December 16, 2002, LeBlanc filed an exception of no cause of action or, in the alternative, an exception of prescription/per-emption. The matter was set for hearing on January 17, 2003. The day before the hearing, on January 16, 2003, Atkinson filed an amended petition alleging fraud. The trial court denied the exception of no cause of action, but granted the exception of prescription/peremption. It is from this judgment that Atkinson appeals.

On appeal Atkinson argues that the trial court erred in granting the exception of prescription/peremption without affording her a full evidentiary hearing on allegations of fraud, which would have established an exception to the peremptive period set out in La. R.S. 9:5605, governing legal malpractice cases.

LeBlanc argues, to the contrary, that Atkinson’s scant fraud allegations in a belated supplemental petition should not be considered. The supplemental petition was filed too late, the day before the hearing on the exception, and it was not served on him. Further, Atkinson did not request a continuance. In the alternative, however, LeBlanc points out that the fraud allegations were considered by the trial court before ruling on the exception and found to lack merit. LeBlanc further argues that the legal malpractice at issue was an act of omission, and not fraud, and as such any claims for damages were per-empted by La. R.S. 9:5605, as properly held by the trial court.

La. R.S. 9:5605, addressing the filing of legal malpractice actions, provides:

A.No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, [sassociation, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

The Louisiana Supreme Court, in interpreting La. R.S. 9:5605, found that “[t]he Legislature was particularly clear in wording La. R.S. 9:5605 so as to leave no doubt as to its intent.” Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9.

IfiLa. R.S. 9:5605A expressly provides that all legal malpractice actions must be brought “within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; .... ” The Legislature put a three-year limit on these actions by further stating that “however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.” La. R.S. 9:5605A; Reeder v. North, supra. Subsection B expressly provides that “[t]he one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted or suspended.” La. R.S. 9:5605 B.

The “act, omission, or neglect” complained of in Atkinson’s petition is Le-Blanc’s failure to take some action in her case over a three year period which led to its dismissal as abandoned. This “omission or neglect” took place between 1995 and March of 2000, when the case was ultimately dismissed. LeBlanc notified Atkinson of the abandonment of her case by telephone in November of 2000 followed by a letter dated December 6, 2000. Atkinson filed an ethical complaint against Le-Blanc with the Louisiana Disciplinary Board on August 10, 2001. Atkinson did not file her legal malpractice petition against LeBlanc until September 27, 2002, over a year after the ethical complaint.

Based on the foregoing, we find no error in the trial court ruling granting the exception of prescription/peremption. The record shows that Atkinson knew about LeBlanc’s omission or neglect at least by August 10, 2001, when she filed a complaint with the Disciplinary Board, if not sooner, by way of LeBlanc’s December 6, 2000 letter. Atkinson did not file suit until September 27, 2002, more than one year from the date that the alleged act, omission, or neglect was |7discovered. Under La. R.S. 9:5605A, the suit, filed more than one year after discovery of the omission, was filed too late.

Atkinson points to LeBlanc’s ongoing representation of her as well as the phone calls, messages and letters as grounds for denying the exception. However, we find no merit in this argument.

As found by the Louisiana Supreme Court in Reeder v. North, supra, the per-emptive periods set out in La. R.S. 9:5605 are not interrupted or suspended by the “continuous representation” of the client by the attorney. The court stated:

As a suspension principle based on contra non valentem, the “continuous representation rule” cannot apply to peremptive periods. This is clear from the wording of La. R.S. 9:5605 (“[t]he one-year and three-year periods of limitations ... are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended”) and of Civil Code article 3461 (“[pjeremption may not be renounced, interrupted, or suspended.”) (Footnote omitted.)

Atkinson argues that her allegations of fraud bring her within the exception to the peremptive periods as provided in Subsection E of La. R.S. 9:5605. The trial judge found that Atkinson did not established her fraud exception and we find no such proof either.

On the day before the hearing on the exception, January 16, 2001, Atkinson filed an amended petition alleging that she had learned of new facts that “support a cause of action for fraud.” She sought to amend her petition with the following allegations:

Defendant, Lloyd J. LeBlanc, Jr. agreed to represent Atkinson, Nancy Blackwell Atkinson, in the matter entitled “Nancy Blackwell v. Brown and Root, Inc. No. 30,997 Division ‘C’, 29th Judicial District Court for the Parish of St. Charles, State of Louisiana”, but he took absolutely no action on her behalf, notwithstanding his promises to the contrary. On December 6, 2002, defendant LeBlanc wrote to Atkinson claiming that he has spoken to “Judge St. Pierre who very negative about reopening the case, even though you probably were not notified ... ”, but continued to lead plaintiff to believe that something could be done. It was not until January 8, 2002, that LeBlanc even sent plaintiffs file to her which coincided with the date that Le-Blanc was subpoenaed before the Louisiana Bar Disciplinary Board. Moreover, it was not until August 26, 2002 when defendant | sLeBlanc advised plaintiff to seek other counsel “with respect to your claims against me.”

In ruling on the fraud exception, the trial court stated, in its reasons for judgment:

After reviewing all pleadings filed in the record, however, this Court notes nowhere previously did plaintiff allege fraud in its petition for damages. Regardless, even if plaintiff had properly alleged and pled fraud, this Court is not convinced that the evidence shows Le-Blanc acted with intent to deceive Atkinson.

We agree with the trial court on this point. The fraud exception referred to in La. R.S. 9:5605 E, references La. C.C. art.1953. In Article 1953, fraud is defined as follows:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

The jurisprudence applying this article in cases of legal malpractice apply it in cases where it was the fraudulent act itself that constituted the malpractice, not as herein alleged, fraud in the actions taken after the legal malpractice has occurred. See: Shreveport Credit Recovery, Inc. v. Modelist, 33,369 (La.App. 2nd Cir.5/15/00), 760 So.2d 681, writ denied, 00-2159 (La.10/27/00), 772 So.2d 125 (where the alleged fraud was in the confection and assignment a promissory note); Ratcliff v. Boydell, 93-0362, 92-0630 (La.App. 4th Cir.4/3/96), 674 So.2d 272, amended as to interest on rehearing, (La.App. 4th Cir.5/31/96) (where the alleged fraud involved the attorney’s misrepresentation of the value of a structured settlement to obtain an excessive fee).

The circumstances constituting the alleged fraud must be alleged with particularity. La. C.C.P. art. 856. In the instant case, the particular allegations of fraud in Atkinson’s amended petition concern only LeBlanc’s actions after the legal malpractice, the neglect to take timely action in Atkinson’s case, had occurred. The record shows that LeBlanc frankly told Atkinson that her case had been dismissed as abandoned. The record further shows that Atkinson understood |9this because she filed a complaint with the LODC regarding Le-Blanc’s misconduct. Notwithstanding her knowledge, Atkinson did not file the instant suit against LeBlane for over a year and a half. As found by the trial judge, the record does not support a finding of fraud on the part of LeBlane. Rather, the allegations in Atkinson’s amended petition simply describe a situation of continuous representation which, as stated above, does not interrupt or suspend the peremp-tive period set out in La. R.S. 9:5605.

Accordingly, for the reasons stated above, we affirm the judgment by the trial court granting the exception of prescription/peremption in favor of LeBlane and assess costs to Atkinson.

AFFIRMED.

      . The judgment rendered by the trial court provides in pertinent part: “IT IS ORDERED that the Exception of Prescription/Peremption and/or No Cause of Action filed on behalf of Lloyd J. LeBlanc, Jr. and Coregis Insurance is GRANTED as per the attached Reasons for Judgment.” However, in the reasons for judgment the exception of no cause of action is denied and only the exception of prescription was granted. Since we affirm the judgment as to the exception of prescription/per-emption, any issues concerning the no cause of action exception are rendered moot.


author: 1 JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Noel BERNIARD.
    No. 2003-KA-484.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Jane L. Beebe, Gretna, LA, for Appellant.
    Noel Berniard, Homer, LA, Appellant Pro Se.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Gordon R. Konrad, Trial Counsel, Thomas S. Block, Trial Counsel Assistant District Attorneys, Gretna, LA, for Appel-lee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   1 JAMES L. CANNELLA, Judge.

Defendant, Noel Berniard, appeals from his conviction of aggravated rape and sentence of life imprisonment. We affirm and remand.

Defendant was indicted by a grand jury for the aggravated rape on July 21, 2001 of his estranged wife, P.B., a violation of La.R.S. 14:42. He was subsequently charged by Bill of Information with attempted forcible rape of the same victim on July 16, 2001, a violation of La.R.S. 14:27 and 14:42.1. He pled not guilty and, after various pre-trial motions were disposed of, was tried by a 12 person jury from July 30, 2002 until August 2, 2002. The jury found him guilty of aggravated rape and not guilty of attempted forcible rape. On September 5, 2002, the Defendant was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served.

Defendant and P.B. met in 1991 when they were working for the Orleans Criminal Sheriffs Office. They married in 1993. In 1994, P.B. left the Orleans Criminal Sheriffs Office to work for the Orleans Civil Sheriffs Office. During this time, P.B. became pregnant and problems arose in their marriage. However, the couple stayed married and after six years, they moved to Jefferson Parish. P.B. |3was working full time at night and attending school during the day. Defendant was employed with the Orleans Criminal Sheriffs Office for ten years at the time of this incident. According to P.B., she was receiving very little support or domestic help from her husband and the marriage was in jeopardy.

On March 18, 2001, the Defendant and P.B. had an argument and he moved into his mother’s house for approximately two weeks. In an effort to save the marriage, P.B. scheduled a six-day cruise, starting April 8, 2001. Defendant returned to the couple’s home a week or so before the cruise. During that vacation, the couple quarreled over money that the Defendant was using to gamble during the cruise, which ruined the cruise for P.B. P.B. testified that upon returning home after the cruise, she discovered that the Defendant was increasingly untruthful about various matters. As the marriage was becoming progressively rockier, P.B. arranged for marriage counseling. She abandoned seeking counseling when Defendant showed no interest in attending the meetings and provoked arguments at the time of the scheduled meetings.

On June 19, 2001, P.B.’s birthday, Defendant again moved out of the couple’s home and stayed with his mother for three days. During his absence, P.B. consulted an attorney about a divorce. According to P.B., she was instructed by the attorney to remain in the matrimonial domicile, so that she would not be accused of abandonment. When she discussed her decision to obtain a divorce with the Defendant, he said that he would not give her one. However, when the Defendant returned home the second time, P.B. did not sleep with him. Rather, she slept alone in the master bedroom, the guest bedroom, or on the couch, away from him. Even though she attempted to remain separate from him, he gave her “no peace.” Defendant argued with her in front of the children, turned lights on and played loud music to keep her from sleeping, removed the door locks from the guest bedroom where she first slept after he returned home, videotaped her in the 1¿shower, threw food away while she was cooking, kicked open the bedroom door, and refused to help with the household expenses. P.B. indicated that the domestic unrest was having an adverse effect on the children, who were becoming angry, experiencing bad dreams, and wetting their beds. In order to buy food and pay the house note, P.B. sought financial assistance from the pastor of her church. During this domestic unrest, P.B. was working at night and attending school during the day.

P.B. testified that, on July 16, 2001, she was sleeping on the couch when the Defendant returned to the house late at night. He attempted to touch and feel her and she told him to leave her alone. When he persisted, she went into the master bedroom. The Defendant followed her and he began to pull off her clothes. P.B. told the Defendant that she no longer wanted him. He retorted that she was his wife and he could do what he wanted. A struggle ensued and P.B. pushed and kicked to free herself, but she could not repel him. She claims that the Defendant, who is six feet tall, held his left arm on her chest and pushed her down with his hand. After removing her clothes, the Defendant tried to force P.B. to engage in sex. He did not penetrate her during the assault, but he did ejaculate on her. P.B. told Defendant that she was not his wife any longer and that she hated him. She also told the Defendant that, if he ever did this again, she would call the police. P.B. stated at trial that she did not report the incident because she felt that she had no case since there was no penetration. After this incident, the Defendant tried to turn the children against her by telling them that their mother did not love him.

On Friday, July 21, 2001 at approximately 6:00 a.m., P.B. returned home after working a night shift. She showered and went to sleep for a few hours before waking up for a 9:35 a.m. hairdresser’s appointment. Around 9:00-9:30 a.m., Defendant woke her by touching her and kissing her feet. She pushed him away, got up, and went to the master bedroom to dress for her appointment. While there, |Rthe Defendant’s cell phone, which was in the room, rang and she handed it to him. The Defendant claimed that she pestered him to answer it because she had suspicions that he was cheating on her. He refused to answer it. P.B. then saw him remove a pair of scissors from the bathroom counter. He told P.B. that she was not going anywhere, pushed her on the couch and pulled at her clothing, as if he was going to cut them off of her. A struggle ensued during which the Defendant forcibly removed her clothes and then removed his shorts. During the struggle, P.B. begged him to stop. P.B. kicked, bit, scratched and pushed him and told him he was going to go to jail. Despite her efforts to repel Defendant’s advances, the Defendant forced himself sexually on her, penetrated her vaginally, and ejaculated.

After the incident, the Defendant took the telephone and dialed some numbers. P.B. thought that he dialed 911 based on his comments. He did this twice, and after the second time, slammed the phone down and began to curse. Since P.B. Wasn’t sure that he had actually called 911, she tried for and got the phone. She dialed 911 before the Defendant grabbed it away from her. P.B. then got dressed as the two waited for the police. For some unexplained reason, the Defendant put on a pair of P.B.’s underpants during this time. When a police officer arrived, P.B. walked outside to meet him. She was met by Deputy Michael Burgess of the Jefferson Parish Sheriffs Office (JPSO), who testified that she was upset and scared., and told him, “I was raped and he’s inside.”

Officer Burgess called for back-up assistance. He then entered the house alone shouting “Sheriffs Office.” He received no response, so he drew his revolver as he proceeded through the house. He found the Defendant partially naked and wearing a pair of women’s underpants. The Defendant did not resist the officer. Officer Burgess felt that the suspect was surprised to see him. Defendant informed Officer Burgess that he, too, was in law enforcement and that there was a weapon in the house. The 1 ^Defendant got the gun and handed it to the officer. The officer testified that the Defendant made several comments about the incident before being removed from the scene. He first mumbled, “Oh, man, I shouldn’t have done it, I’m in trouble.” When Officer Burgess told the Defendant to get dressed, he responded, “I shouldn’t have beat [sic] my wife and I shouldn’t have raped her.” The Defendant was arrested and read his Miranda rights. Before being escorted to the police unit, the Defendant said, “I shouldn’t have done that, man. Am I going to loose [sic] my job?” The Defendant asked for permission to tell his daughter good-by and was allowed to do so. However, instead he told her, “Your mama’s got me arrested now. What do you think of the b-now. She’s having me arrested.” The child was then removed from the room. Defendant also asked for his keys before being taken to the police car and he told P.B., “You know where my f-keys are, b-. Go get them. I need them now. Don’t f-just stand here. Go get them.” Officer Burgess instructed the Defendant to get the keys, after which, the officer put the Defendant in the police car under the control of another officer. While there, the Defendant used his car keys to set off the car alarm, and it took three officers to wrest Defendant’s car keys from him. The officer noted that, although P.B. is trained in law enforcement, the Defendant was in better physical shape than P.B.

Officer Burgess returned to the house where he took a statement from P.B. and she showed him the pair of scissors. Crime scene photographs were taken. Photographs were also taken of the injuries to P.B. and Defendant. P.B. had marks on her arm, face, and neck, as well as a blood stain on her shirt. On the Defendant, scratch marks were evident on his back, shoulders, chest, and left forearm.

|7The Defendant was transferred to the Sheriffs Office by Officer Burgess. During the transfer, the Defendant told the officer, “I shouldn’t have done this type of stuff,” and “Man, I shouldn’t have used those scissors to rape my wife.”

Detective Mike Hullihan of the Personal Violence Unit of the JPSO counseled P.B. at her home following the incident and advised her to go to the hospital for a rape examination. P.B. followed Detective Mike Hullihan to Lakeside Hospital where she was examined by Dr. W. Caplan, a gynecologist and obstetrician. Dr. Caplan conducted a physical exam, collected evidence, and wrote a report. P.B. reported to the doctor that her estranged husband forced her to engage in vaginal intercourse, during which he ejaculated. The physical examination revealed the existence of motile and non-motile sperm in the vaginal area. No vaginal tearing was noted. However, Dr. Caplan stated that such damage is not usually found in a victim who has previously been sexually active.

When the doctor was finished with his examination, Detective Hullihan audio-taped an interview with P.B. During her statement, P.B. was upset and crying as she informed him about the events that had occurred on July 16, 2001 and July 21, 2001. She told the Detective that she resisted Defendant’s sexual advances by scratching, kicking, and punching her assailant, but was unsuccessful in repelling him. She also told him that, in the June 21st encounter, Defendant had a pair of scissors which she feared he would use to cut off her clothes. She did not fear that he would use them to hurt her. Detective Hullihan testified that P.B. had an abrasion on her left cheek at the time she gave the statement.

At trial, Defendant testified, portraying P.B. as a jealous and suspicious wife. According to him, on July 21, 2001, P.B. woke him up 6:15 a.m. when she got home from work and they had consensual sex later that morning. He denied raping P.B. and denied using scissors to try to cut off her clothes. Defendant said that he argued with P.B. after having engaged in consensual sex because P.B. |saccused him of cheating. He claimed that he did not throw anything at P.B., but that she had thrown things at him. Defendant claimed that P.B. became upset when his cell phone rang and he was not there to answer it. Defendant contended that this caused P.B. to become angry and she scratched and punched him for about 15 to 20 minutes because she thought he was cheating on her. Defendant also denied making any statements to the arresting officer other than asking the nature of his arrest. Defendant claimed that Officer Burgess lied when he recounted the various statements allegedly made to him by Defendant, essentially admitting the rape.

Briefs were filed by both appellate counsel and Defendant. In both briefs, Defendant argues that the evidence was insufficient to support the jury’s verdict of aggravated rape and that the sentence is excessive for a first time offender. In his pro se brief, Defendant further alleges ineffective assistance of counsel.

Defendant asserts that the State failed to prove a “rape” because the incident of sexual penetration on June 21, 2001 was consensual. At most, he contends that the evidence shows that he was guilty of forcible rape. He argues that P.B.’s testimony is inconsistent and there is irreconcilable conflict with the physical evidence. In particular, he alleges that neither the physical evidence nor the victim’s testimony indicated her husband’s physical assault was “resisted to the utmost” and her testimony that she resisted her husband, but was unable to get out from under his elbow, was not credible because P.B. is a trained law enforcement officer. Defendant notes that the only physical injury displayed by P.B. was a scratch on her chin. Defendant also alleges that P.B.’s testimony was inconsistent. In particular, he alleges that she was neither threatened, nor afraid for her life. He contends that P.B. first reported that he threatened her with a pair of | ascissors during the assault, but at trial testified that she was not afraid for her life.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, p. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Gazenave, 00-183, p. 14 (La.App. 5th Cir.10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Ruffin, 02-798, p. 10 (La.App. 5th Cir.12/30/02), 836 So.2d 625, 630. It is not the function of the appellate court to assess the credibility of witnesses, or to reweigh the evidence. State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

La.R.S. 14:42 states:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a weapon.

hoUnder La.R.S. 14:42.1, forcible rape, is defined in part, as when the vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed “(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” State v. Parish, 405 So.2d 1080, 1087 (La.1981); State v. Puckett, 02-997, p. 10 (La.App. 5th Cir.1/28/03), 839 So.2d 226, 231. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. State v. Jackson, 437 So.2d 855, 858 (La.1983). The degree of force employed and the determination of the grade of rape is for the jury to decide. State v. Cepriano, 00-213, p. 9 (La.App. 5th Cir.8/29/00), 767 So.2d 893, 899. Nonetheless, the mere fact the defendant was unarmed and the victim suffered no extensive physical pain or injury does not negate the .possibility that an aggravated rape occurred. Puckett, 02-997 at p. 8, 839 So.2d at 231.

P.B.’s testimony that she fought unsuccessfully to repel the Defendant was supported by the other evidence. The Defendant’s torso was scratched in many places, P.B. had marks and an abrasion on her face, and a spot of blood was on her shirt. The medical examination showed that P.B. had vaginal intercourse that day. She was visibly upset when she described the events to the police and the doctor and her trial testimony was consistent with her interviews. In addition, she explained the alleged inconsistency relative to the scissors, saying that she was not afraid for her life, but she was afraid the defendant would use the scissors to cut her clothing off. She never claimed that she was afraid for her life. She contended that the Defendant forced himself on her without her consent, and that she resisted to the utmost. This is plausible under these facts. Defendant is six feet tall and so [^physically strong that it took three police officers to get his keys from him when he was in the police unit, waiting to be transported to jail

The law does not require that the perpetrator of the rape be armed with a weapon, as argued by Defendant, but only that such force is used that the victim cannot dislodge the perpetrator. The jury heard the testimony of P.B., the witnesses, the Defendant, and apparently believed P.B. that the degree of force used by Defendant to subdue P.B. was such that a verdict of aggravated rape was warranted, rather than forcible rape. Since there is no internal contradiction or irreconcilable conflict with the physical evidence, P.B.’s testimony was sufficient for the jury to find Defendant guilty beyond a reasonable doubt of that crime. Thus, considering Officer Burgess’s testimony, the photographic evidence of her injuries, Defendant’s admission, P.B.’s testimony and corroborative physical evidence, we find that, under the Jackson standard for sufficiency of the evidence, a rational trier of fact could have found that the State proved the essential elements of the crime of aggravated rape beyond a reasonable doubt.

Defendant asserts next that his sentence is excessive, constituting cruel and disproportionate punishment. He contends that a downward deviation from the mandatory sentence is warranted because he has no prior criminal record, he has been an outstanding citizen, the act arose from a marital conflict with a jealous wife who made up the allegations of rape, he is a 80 year old father of two girls, he was married for 10 years and he had been in law enforcement for 10 years.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is excessive if it is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, or if it imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Brown, 01-160, p. 14 (La.App. 5th Cir.5/30/01), 788 So.2d 667, 674. Although a sentence is within statutory limits, the sentence may nonetheless violate a defendant’s constitutional right against excessive sentence. State v. Wilson, 01-2815, pp. 3-4 (La.11/22/02), 836 So.2d 2, 4, citing State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. A sentence within statutory limits will not be set aside as excessive absent manifest abuse of discretion. State v. Lobato at 751; State v. Sims, 02-1244, p. 8 (La.App. 5th Cir.4/29/03), 845 So.2d 1116, 1121.

It is presumed that a mandatory minimum sentence is constitutional. A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. State v. Johnson, 97-1906, p. 7 (La.3/4/98),709 So.2d 672, 676; Brown, 01-160 at 15, 788 So.2d at 676.

In State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, 1275 the Louisiana Supreme Court held that the sentencing review under State v. Dorthey, 623 So.2d 1276, 1280 relative to downward departures from mandatory sentences in a habitual offender case is not limited to those sentences. In Brown, a case involving aggravated kidnapping, we applied the principles set out in Dorthey, as reexamined in Johnson. There we noted that downward departures from a mandatory minimum sentence should only occur in rare cases. Brown, 01-160 at 15, 788 So.2d at 675, citing Johnson, 97-1906 at 8, 709 So.2d at 677. In addition, we have held that the trial court may not depart from the mandatory minimum sentence because of some subjective impression about the defendant. State v. Bell, 97-1134, p. 17 (La.App. 5th Cir.2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477.

When a defendant seeks a downward deviation from the mandatory sentence, the defendant has the burden to rebut the presumption of constitutionality by showing by clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. Brown, 01-160 at 15, 788 So.2d at 675.

In this case, at the sentencing hearing, Defendant sought leniency in sentencing, noting that he had been an outstanding citizen and had served the community for 10 years. The trial judge denied the request, stating:

THE COURT:

The Court takes notice that the defendant was found guilty of aggravated rape by a jury of his peers on August 2, in the year, 2002.
In imposing sentence herein, the Court takes notice of the provisions of Article 894.1 of the Code of Criminal Procedure. The Court further takes notice that the crime of aggravated rape, by law, carries a mandatory minimum sentence of life imprisonment, which sentence must be served without benefit of probation, parole or suspension of sentence. The Court notes further in imposing sentence herein takes into consideration the statements made by the defendant. However, the Court further notes that it is without authority, by law, to impose any sentence less than that which is required. The Court notes that the offense of which the defendant was convicted was a felony and that in accordance with law it is mandatory that he be sentenced to a period of incarceration which must be served life without benefit of probation, parole or suspension of sentence. The offense being committed was an act of violence of rape against another party. Accordingly, the Court sentences the defendant to life imprisonment and the sentence is ordered pursuant to statute to be served without benefit of parole, probation or suspension of sentence. The Court orders that the defendant be given credit for time served and remanded to the custody of the Department of Public Safety and Corrections for execution of sentence ....

Thereafter, Defendant filed a Motion for Reconsideration of Sentence alleging that the trial judge failed to consider mitigating circumstances and the |usentence was unconstitutionally excessive. At the hearing on the motion for reconsideration, Defendant again asserted these two grounds for reduction of his sentence. In denying the motion for reconsideration, the trial judge responded:

THE COURT:
All right. The Court finds that there has been a failure to articulate before the Court any mitigating factors which were properly placed before the Court on or before sentencing for which the Court failed to consider. So, I find as to the motion filed, Item 1 is without merit.
The Court, in considering Item 2, that the sentence imposed was unconstitutionally excessive and constituted cruel and unusual punishment, the Court notes the legislative statute, as well as the jurisprudence concerning the aggravated rape and the penalty which is contained therewith in the line of Supreme Court cases relative to this matter, and finds that the second issue is without merit and, therefore, denies the Motion to Reconsider Sentence.

The record reflects that the trial judge was aware of the factors urged by Defendant in mitigation of the mandatory sentence. Although the trial judge felt compelled by law to impose the sentence which was statutorily mandated, the life sentence was warranted nevertheless because Defendant failed to carry his burden for a reduction of the sentence below the statutorily prescribed mandatory sentence. His depiction of the facts, that the charges arose out of a marital conflict with a jealous wife, was rejected by the jury as lacking credibility. Defendant was in a position of trust as a law enforcement officer at the time of the crime and he has now been convicted of a crime of violence. In addition, Defendant’s lack of a criminal record is not sufficient to justify a downward departure. See: State v. Hernandez, 02-892, p. 5 (La.App. 5th Cir.01/28/03), 839 So.2d 281, 285, citing State v. Knight, 01-881, p. 7 (La.App. 5th Cir.2/13/02), 811 So.2d 947, 950-951.

The factors of age and marital status are raised for the fust time on appeal and are not subject to review. See: State v. Rutledge, 34,834, pp. 4-5 (La.App. 2nd Cir.6/20/01), 792 So.2d 31, 33; La.C.Cr.P. art. 881.1. Even if the factors of age and marital status had been preserved for review, these 11Bfactors alone would not be sufficient to justify a downward departure. See: Hernandez, 02-892 at 5, 839 So.2d at 285 (age and family support insufficient).

Under the facts presented, then, we find that sentence imposed is not constitutionally excessive and the trial judge did not err in rejecting the Defendant’s request for a downward deviation of the mandatory sentence.

PRO SE ASSIGNMENT OF ERROR.

Defendant argues pro se that his trial counsel was ineffective for failure to impeach alleged inconsistent statements made by the victim and for failing to present expert medical evidence.

The Defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffective assistance of counsel, the courts apply a two-pronged test. The Defendant must show that (1) his attorney’s performance was deficient and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5th Cir.4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious that it deprived the Defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5th Cir.7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388.

In order to show prejudice, the Defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; Soler, 636 So.2d at 1075. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983). Because there is no precise definition of reasonably effective assistance of counsel, any inquiry into the effectiveness of counsel must be specific to the facts of the case. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Addison, 00-1730, p. 11 (La.App. 5th Cir.5/16/01), 788 So.2d 608, 615.

Claims for ineffective assistance of counsel are most appropriately addressed through application for post-conviction relief, so as to afford the parties an adequate record for review. Peart, 621 So.2d at 787. However, the Court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal. State v. Hamilton, 92-2639, p. 4 (La.7/1/97), 699 So.2d 29, 31, cert. denied, 522 U.S. 1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998); State v. Pendelton, 00-1211, p. 10 (La.App. 5th Cir.3/14/01), 783 So.2d 459, 465-466. After consideration of the entire record, we find that the record contains sufficient evidence to decide the ineffective counsel issue and that the issue is properly raised by assignment of error on appeal.

Defendant alleges that the victim’s credibility was crucial in this case and his counsel should have impeached her on certain alleged inconsistencies between her statements to police and her trial testimony. He. lists as inconsistent the statements concerning threats by Defendant to the victim, the exact bedroom where the rape occurred, and whether the victim bit him.

The record indicates that defense counsel engaged in a vigorous cross-examination of P.B. He specifically questioned her during cross-examination about an apparent conflict between her statement to police and her trial testimony concerning whether she felt “threatened” by Defendant’s use of the scissors. She explained that she feared that he would cut her clothes, not that he would harm her. Counsel also explored the subject of P.B.’s motivation for filing the charges, and he attacked her veracity in stating that she resisted Defendant’s sexual advances. |17 Thus, her credibility was attacked during cross-examination at trial. Counsel’s performance in this regard was not deficient.

Defendant also alleges that counsel’s performance was deficient because he failed to present “expert medical evidence concerning the lack of physical evidence.” However, a review of the record indicates that defense counsel, during his cross-examination of the State’s medical expert, Dr. Caplan, established that no physical injuries were noted in the report of the physical exam. The lack of physical injuries was established. The presentation of an additional medical expert for this purpose would have been unnecessary and duplicitous. Consequently, we find that Defendant has failed to establish that his counsel was deficient for failing to present expert medical evidence concerning the lack of physical evidence.

Moreover, the Defendant did not establish prejudice, the second prong ■ of the Strickland test. The Defendant was acquitted of one of the two counts with which he was charged. On the charge of aggravated rape, there was considerable evidence against him. The victim’s testimony was corroborated by the physical evidence, the testimony of the officer and the doctor, well as by Defendant’s own numerous admissions against interest.

After our review of the record, we find that Defendant has failed to carry his burden under Strickland to show that the performance of his counsel was deficient and that he suffered any prejudice. Thus, we find that the Defendant was not deprived of a fair trial by ineffective assistance of counsel.

ERROR PATENT

The record was reviewed for patent errors, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La. App. 5th Cir.5/17/00), 762 So.2d 198. We find one patent error. La.R.S. 15:542(E). La.R.S. 15:540, et seq., requires registration of sex offenders and La.R.S. 15:543(A) requires the trial judge to provide written notification of the registration | ^requirement of La.R.S. 15:542. The trial judge failed to provide to Defendant the required written notice. Consequently, we will instruct the trial judge to send written notice to Defendant of the registration requirement and to file a copy of same in the record, in accordance with State v. Stevenson, 00-1296 (La.App. 5th Cir.1/30/01), 778 So.2d 1165.

Accordingly, Defendant’s conviction and sentence are hereby affirmed. We remand for the trial judge to inform Defendant of the registration requirements of La. R.S. 15:542, by sending appropriate written notice to him within ten days of this opinion, and to file written proof in the record that the Defendant received such notice.

CONVICTION AND SENTENCE AFFIRMED; REMANDED.

      . In accordance with La.R.S. 46:1844(W)(3), and in order to protect the identity of the victim, a victim of a sex offense, we will refer to her by initials.

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