author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Sahara CLAY.
    No. 2005-KA-1467.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for PlaintiffiAppel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

hThe State filed a bill of information, charging the defendant-appellant, Mr. Sahara Clay, with two counts of violating La. R.S. 14:34 relative to aggravated battery. The defendant entered not guilty pleas at his arraignment. A preliminary hearing was held; the trial court found probable cause to bind the defendant over for trial. After the defendant waived his right to a jury trial, a bench trial was held. At the conclusion of testimony, the court found the defendant guilty of La. R.S. 14:34.1, second degree battery, as to both counts. The court sentenced the defendant to five years at hard labor on both counts to run concurrently. Pursuant to an order of this Court, the defendant was granted an out of time appeal.

Due to the intervention of Hurricane Katrina, this record was not lodged until December 2, 2005, without the sentencing transcript. The appellant’s counsel filed a brief, to which the appellee replied, along with a motion to supplement the record with the sentencing transcript. The transcript was filed. This appeal followed.

STATEMENT OF THE FACTS

The defendant, Mr. Sahara Clay, who at the time was a prisoner in the Orleans Parish Prison, came to the medical observation unit. He complained of]¿chest and abdominal pains. Dr. Samuel Gore and Tondra Ricard, a medical assistant, evaluated him. Ms. Ricard was monitoring the defendant’s vital signs, and, as she walked away, the defendant touched her arm. When she looked down, she saw a few drops of blood and asked the defendant why he scratched her. She treated the scratch herself by cleaning it with alcohol and then put antibiotic ointment and a band-aid on it. At trial, Ms. Ricard testified that prior to the defendant scratching her, he had been holding his hands under his shirt as if his stomach hurt and failed to move them when she told him to do so. She further testified that she did not see the defendant cut or scratch her.

Dr. Samuel Gore testified that the defendant was sitting on the exam table when he walked past him. At that time, the defendant scratched his arm. Specifically, the defendant “reached out” and scratched his arm. Dr. Gore asked him, “what was that about?” but received no reply. Dr. Gore washed the scratch with soap and water and went on with his routine; he mentioned the incident to a deputy. He did not testify that he saw the defendant scratch him with any item.

Sergeant Carlos Louque of the Orleans Parish Criminal Sheriffs office, Special Investigations Division, testified that he was called to investigate the incident in the medical unit. He stated that the call to him indicated that a prisoner cut a nurse and a doctor with a razor. At the unit, he interviewed Ms. Ricard and Dr. Gore; he also interviewed Deputy John Bowman, who turned a razor blade over to him. Sergeant Louque identified the razor blade, and it was introduced into evidence over defense objection. Deputy Bowman did not testify at trial.

The defense 'did not present any witnesses.

ERRORS PATENT

A review of the record reveals that there are no patent errors.

J^FIRST ASSIGNMENT OF ERROR

In his first assignment of error, the appellant argues that the State failed to present sufficient evidence to establish that he committed two counts of second degree battery, violations of La. R.S. 14:34.1, because the element of serious bodily injury was not proven, and thus the evidence can sustain only charges of simple battery. The legal standard for sustaining a verdict in general and a discussion of this particular element of La. R.S. 14:34.1 was discussed in State v. Landry, 03-1671, pp. 6-7 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1238-39:

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986); State v. Heck, 560 So.2d 611 (La.App. 4 Cir.1990). The reviewing court must consider the record as a whole and not just the evidence most favorable to the prosecution; if rational triers of fact could not disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991).
In a second-degree battery conviction, the State is required to prove the offender committed a battery without the consent of the victim and that he intentionally inflicted serious bodily injury. La. R.S. 14:34.1. In second-degree battery cases, the offense requires proof of a specific intent to inflict “serious bodily harm.” State v. Welch, 615 So.2d 300, 302 (La.1993), citing State v. Fuller, 414 So.2d 306 (La.1982). Serious bodily injury is defined as injury that involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.1.

Landry, 03-1671, pp. 6-7, 871 So.2d at 1238-39.

In Landry, the defendant and the victim were at a bar where the victim and his family were having a birthday party. OS-1671, p. 2, 871 So.2d at 1236. At some point, the victim and the defendant exchanged words. When the victim later I ¿walked outside, the defendant followed him and punched him in the face. The blow caused the victim to fall on the concrete, rendering him unconscious; the victim also sustained ,a fractured jaw, scrapes, and bruises. The facial injury required that his teeth be removed and his jaw wired shut; he had to maintain a liquid diet for eight weeks. On appeal, this Court held that these injuries constituted “serious bodily injury” as defined in La. R.S. 14:34.1.

In State v. Odom, the defendant was originally charged with aggravated battery, and the jury returned a responsive verdict of guilty of second degree battery, as occurred in the instant case. 03-1772 (La.App. 1 Cir. 4/2/04), 878 So.2d 582, writ denied 04-1105 (La.10/8/04), 883 So.2d 1026. The offense began as a domestic disturbance and continued over several hours. The defendant struck the victim repeatedly with his fists and went on a destructive spree in their home, destroying furnishings. At some point, he armed himself with a pistol and struck the victim with the butt of the weapon several times. At trial, the victim and a co-employee testified that the victim had bruises, a black eye and a gash on her head, all of which were still visible a week after the incident. The victim also testified that her whole body hurt for days after the incident. No expert testimony was presented, and the victim testified that she did not seek medical treatment out of embarrassment. However, she did spend the night of the incident with her brother who had some first aid training, and he monitored her for a possible concussion. Based on the record, the appellate court found that the evidence supported the conviction for second degree battery, noting that the victim’s testimony may be sufficient to prove that she sustained serious bodily injury. Odom, 03-1772, p. 6, 878 So.2d at 588.

lain State v. Hall, the victim testified that she was sprayed with mace and beaten and kicked by the defendants. 03-1384, p. 1 (La.App. 5 Cir. 3/30/04), 871 So.2d 558, 559. She recounted that the mace caused her eyes to burn, made breathing difficult, and made it feel like her esophagus was swollen. She required fifteen stitches to close the various lacerations on her nose; the bottle striking her face apparently caused the lacerations. On appeal, the court held that the victim’s testimony describing these injuries was sufficient to sustain the convictions for second degree battery.

In contrast to these cases, in State v. Helou, the Supreme Court reversed the decision of the appellate court, which held that the evidence was sufficient to prove the element of serious bodily injury. 02-2302 (La.10/23/03), 857 So.2d 1024. The court noted that the defendant and two other men repeatedly struck the victim, but no weapons were involved. Helou, 02-2302, p. 6, 857 So.2d at 1028. The victim’s wife testified that her husband’s nose was bleeding profusely; the victim testified he had never seen so much blood in his life and that his clothes were saturated. A bystander, who was a former army medic, testified that there was so much blood on the ground that it was hard to tell where it came from. The State later argued that the sheer quantity of blood led to an inference that the victim suffered a serious bodily injury. The Supreme Court disagreed:

This Court finds that the presence of blood alone does not satisfy the “serious bodily injury” element of second degree battery. Our jurisprudence demonstrates many cases where the State proved the “serious bodily injury” element of second degree battery. Some examples are: 1) State v. Abercrumbia, 412 So.2d 1027 (La.1982), where the defendant hit the victim with boards across his head, neck, and arm, causing a “deep cut over his right eye;” 2) State v. Robertson, 98-0883 (La.App. 3 Cir. 12/9/98), 723 So.2d 500, writ denied, 99-0658 (La.6/25/99), 745 So.2d 1187, where the defendant knocked the victim to the ground and repeatedly kicked and hit her until she “kind of lost her senses for a minute;” the victim had bruises |fiand contusions over the entire extent of her body, which left significant scars and lacerations on her nose; and 3) State v. Robinson, 549 So.2d 1282, 1285 (La.App. 3 Cir.1989), where the defendant stabbed the victim twice with a large, folding knife.
There are other cases that indicate that less substantial injuries may also constitute “serious bodily injury.” See State v. Young, 00-1437, pp. 9-10 (La.11/28/01), 800 So.2d 847, 852-853, ...; State v. Diaz, 612 So.2d 1019, 1022-1023 (La.App. 2 Cir.1993), where the defendant broke the victim’s jaw during a group fight; State v. Mullins, 537 So.2d 386, 391 (La.App. 4 Cir.1988), where a 6 foot tall defendant punched a 5'5" girlfriend, breaking her nose; ... State v. Accardo, 466 So.2d 549, 552 (La.App. 5 Cir.1985), writ denied, 468 So.2d 1204 (La.1985), where a 17-year-old female victim was struck on the head by the defendant with either his fist or a blackjack, causing the side of her face to swell.
After a careful review of LSA-R.S. 14:34.1 and the related jurisprudence, we find that in the case sub judiee, the , State failed to offer any evidence of “extreme physical pain” by way of testimony from the fact witnesses. Nor do we have testimony from medical witnesses or medical records, which would prove this factor. Rather, the evidence presented, [sic] dealt solely with the amount of blood the victim lost.... We cannot infer that the loss of blood is tantamount to “extreme physical pain.” We also cannot infer that a punch in the nose, without more evidence, is sufficient to support a conviction of second degree battery.

Helou, 02-2302, pp. 6-8, 857. So.2d at 1028-29.

As the appellant notes in this case, neither victim testified that the injury inflicted was anything more than a scratch. The only medical attention that Ms. Ricard received was administered by herself and consisted of antiseptic ointment and a band-aid. Dr. Gore testified all he did was wash the scratch on his arm with soap and water. Neither of the injuries could be described as serious bodily injuries. There was no testimony indicating that the victims suffered any pain, much less extreme pain. No impairment of function occurred. The evidence was not sufficient to establish the elements of second degree battery.

In its brief, the State does not argue that the victims sustained serious bodily injury. Instead, the State argues that the defense did not object to the inclusion of |7the responsive verdicts of second degree battery. Therefore, the State avers that because there is evidence to support the original charges, the convictions need not be reversed. The State suggests that there was sufficient evidence to support the original charges of aggravated battery, while the appellant contends that there was not sufficient evidence to show that he was armed with a dangerous weapon.

The standard for removing a responsive verdict is set forth in La.C.Cr.P. art. 814(C), which provides:

Up on motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A if, after all the evidence has been . submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.

Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. If the court overrules the objection and a verdict of guilty of the responsive offense is returned, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection at a time when the trial judge can correct the error, then the appellate court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982).

The flaw in the State’s argument is the reliance upon evidence not admitted at trial. The State cites to the incident report prepared by Sergeant Louque, recounting that he was informed that the victims had been cut by a razor blade, Lwhich was subsequently confiscated by Deputy Bowman. However, neither victim testified that they saw a razor blade in the defendant’s possession, nor did they testify that they made these statements to Sergeant Louque. Deputy Bowman never testified at trial; thus he did not testify to seizing such a weapon from the defendant. The victims did not testify that they saw Deputy Bowman seize the razor blade from the defendant or from any area within his control.

Although a razor blade was introduced at trial, the defense counsel specifically objected to its introduction on the grounds that it had not been identified by the victims or Deputy Bowman. Officer Louque testified that Deputy Bowman gave him the blade, but no witnesses testified that they observed the defendant in possession of the blade, and no one testified that the defendant committed a battery with the razor blade. Moreover, the nature of the scratches described by the victims were apparently not severe enough or of a peculiar nature that would clearly indicate that they were inflicted by the razor blade; at trial the defense elicited that the defendant’s fingernails were long and thus may have caused the scratches. Furthermore, at trial defense counsel elicited that the razor blade was not subjected to any tests that established that it had been used to inflict the scratches on the victims.

Considering the lack of testimony linking the razor blade to the injury, the introduction of which was specifically objected to by defense counsel and admitted by the court over that objection, the incidents, and the lack of evidence of serious bodily injury inflicted upon the victims, the appellant’s assignment of error has merit. The mere introduction of the razor blade without any testimony linking it to the defendant or the victims’ scratches is insufficient circumstantial evidence to find beyond a reasonable doubt that the defendant committed a battery with the | ^razor blade. The record indicates that only Sergeant Louque testified at the motion hearing. Therefore, the trial judge had no evidence beyond that presented during the trial itself upon which to rest his judgment.

The evidence was insufficient to sustain convictions for aggravated battery and second degree battery, and the verdicts should be modified. La.C.Cr.P. art. 821(E) permits an appellate court to modify a verdict to a lesser included responsive verdict if it determines the evidence supports the lesser charge. Given that, because the evidence establishes that the State proved that the defendant perpetrated a simple battery on each victim, this Court enters verdicts of simple battery.

SECOND ASSIGNMENT OF ERROR

In his second assignment of error, the appellant argues that the sentences imposed are excessive. Because we find that the first assignment of error has merit, we do not consider the second assignment of error. Furthermore, the issue of excessive sentences was not preserved for appellate review. The transcript of the sentencing shows that the defendant did not object at the time of sentencing. The record further shows that he did not file a motion to reconsider sentence. As per La.C.Cr.P. art. 881.1, a defendant must file a motion to reconsider sentence within thirty days of sentencing in order to preserve for appeal any claim as to sentencing. In addition, this Court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775.

|inDECREE

For the reasons stated herein, we reverse both of the appellant’s convictions. The convictions are hereby modified to violations of La. R.S. 14:35, simple battery. The sentences are vacated and the matter is remanded for sentencing.

CONVICTIONS REVERSED; SENTENCES VACATED AND REMANDED.


source: Caselaw Access Project

author: BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willie R. JAMES.
    No. 2005-KA-1468.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 2006.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plain-tifPAppellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for DefendanVAp-pellant.
    (Court composed of Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   BELSOME, Judge.

STATEMENT OF THE CASE

I,On January 7, 2005 the State filed a bill of information charging the defendant-appellant Willie James with one count of simple burglary, a violation of La. R.S. 14:62. The defendant entered a not guilty plea at arraignment on January 12, 2005. At the motion hearing held on February 18, 2005, the court granted the motion to suppress the physical evidence, denied the motion to suppress the identification, and found probable cause to bind the defendant over for trial. On May 4, 2005 the defendant appeared for trial. He waived his right to a jury trial and proceeded before the court. Following testimony, the judge found him guilty of attempted simple burglary, a violation of La. R.S. 14:27(62). On June 2, 2005 the court sentenced the defendant to three years at hard labor and recommended him for the Department of Corrections Impact Program. The defendant filed a motion for an appeal, which was granted. He also filed a motion to reconsider sentence and a motion to quash the multiple bill. However, there is nothing in the record to indicate that a multiple bill was ever filed.

| STATEMENT OF THE FACTS

On November 7, 2004, at approximately 9:30 p.m., Jules Vogel was in his kitchen at 906 Governor Nicholls when his attention was drawn outside. He observed a man, whom he later identified as the defendant, inside a vehicle parked right outside. The defendant was prying the radio out of the dashboard of the vehicle. Mr. Vogel called the police and provided a description of the defendant. As he was waiting for the police to respond, Mr. Vogel kept watching the defendant as he got out of the car and walked down Governor Nicholls toward Dauphine. The defendant then got onto a bicycle and as he was riding away, a police car came and stopped him. At trial, Mr. Vogel stated that the description he provided the police was of a man wearing a white t-shirt and black pants and carrying a knap sack.

Dennis Goodman testified that he was returning home from a walk with his dog when he observed a man in police custody. Additionally, as he passed his vehicle parked on Governor Nicholls, he saw that a window was broken and that there was damage to the inside of his car. He testified at trial that his car had not been in that condition previously. He also stated that he did not know the defendant and did not give him permission to enter his vehicle.

Detective Dennis Dejean of the New Orleans Police Department Eighth District testified that he participated in the investigation of an incident involving an automobile on Governor Nicholls on November 7, 2004. He arrived at the scene and met with the arresting officers, Officers Carter and Baxter. The defendant was already in custody inside their police vehicle.

No other State witnesses were called. The defense presented no witnesses.

\,DISCUSSION

The appellant in his second assignment of error requests a review of the record for errors patent, which review is conducted even in the absence of an assignment of error. In his first assignment of error he asserts that the trial court imposed an excessive sentence. A review of the record, including the sentencing transcript, reveals that the only error patent is that the trial court did not rule on the motion to reconsider sentence which was filed by the defendant on June 2, 2005. This Court has previously held that it is procedurally incorrect to review a defendant’s sentence prior to the trial court’s ruling on a motion to reconsider sentence. See State v. Ferrand, 2003-1746 (La.App. 4 Cir. 1/14/04), 866 So.2d 322; State v. McQun, 2002-0259 (La.App. 4 Cir. 6/19/02), 828 So.2d 598; State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88. The defendant filed his motion to reconsider sentence within thirty days of sentencing, and apparently the court never ruled on the motion. As this Court noted in State v. Temple, 2000-2183 (La.App. 4 Cir. 5/16/01), 789 So.2d 689, without a final sentence the conviction is not appealable.

CONCLUSION

Accordingly, because the appellant’s sole assignments of error relate to his sentence and a review of the record for errors patent, this Court remands this case to the district court for a ruling on the motion for reconsideration of sentence, reserving the appellant’s right to appeal his conviction and sentence once the district court has ruled on the motion.

REMANDED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Richard BURNHAM, Appellant.
    No. 41,146-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 11, 2006.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Edward M. Bros-sette, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

| jDefendant, Richard Burnham, was convicted at a bench trial of aggravated rape, a violation of La. R.S. 14:42, and sentenced to life imprisonment at hard labor without benefit. Defendant has appealed his conviction. For the reasons set forth below, both defendant’s conviction and sentence are affirmed.

Facts

An indictment charges that on February 8, 2003, at approximately 4:00 a.m., defendant raped his girlfriend’s 11-year-old daughter. The victim testified at trial that the videotape of her statement made at the Gingerbread House was an accurate depiction of the events that occurred on that date. During the interview, the victim said that defendant, who was dressed in a white robe, came into her room while it was dark, stripped her clothes off, put lotion on her “private” and “stuck his self’ in her. The victim specified that defendant put “his thing” inside her “private” multiple times and that it hurt. The victim told the interviewer that Glenn Wiggins, another resident of the household, entered the room while defendant was naked on top of her to ask about the “bumping noise.” The victim stated that she tried to push defendant off but that he held her tight and covered her mouth so that she would not scream. The victim stated that defendant stopped when Wiggins entered the room and “faked like he was getting some covers” for her cousin. The victim told the interviewer that her mother was at the hospital with her grandmother when the incident occurred. The victim said that after the assault she bled from her “private,” wiped herself with tissue, threw the tissue away, dressed again, and went back to sleep. The victim said that 12Wiggins asked her about the incident the next day and “they” (either Wiggins or Wiggins and his girlfriend, Valeiie Brooks) told the victim’s mother about the assault. Her mother called the police immediately after seeing the blood in the victim’s underwear.

At trial, the victim testified that defendant came to her bed and covered her mouth with his hand. She identified the green panties introduced into evidence as hers and stated that she wore them that night. The victim stated that she asked Wiggins for help when he came into the room and that Wiggins never saw defendant naked because defendant “jumped out the bed and put his robe on and said he was getting some covers.” The victim agreed with defense counsel that her earlier statement that Wiggins had seen defendant in bed with her naked was not true. The victim testified that she took her panties off at the hospital where they were put into a bag. The victim then stated that her mother called her a bad name at the hospital, but she didn’t know why.

The child’s mother testified that defendant had been her boyfriend at the time of the incident. The mother stated that she found blood in her daughter’s panties and on the child’s vagina. The mother said that her daughter had not yet begun her menstrual cycle. The mother testified that she called 911 and reported the incident, and the tape of that call was admitted into evidence. The mother said that she had been at the hospital with her grandmother during the assault, and that Valerie Brooks told her about the rape when she got home. The mother testified that Glenn Wiggins told her that he had walked into the victim’s room and found defendant | ¡¡leaning over the bed “like he was looking for some clothes” before running out. The mother also testified that the green panties belonged to her daughter, that she did not share underwear with her daughter, that she and her daughter wore different sizes, and that the mother did laundry for the household. She said that she gave the panties to the detective when asked and that the detective “put them in a bag.” The mother said that her daughter had never had male visitors at the house and did not remember calling her daughter a “little bitch” at the hospital.

The parties stipulated at trial that Joanne Lawler, the nurse who examined the victim, would have testified that the victim was bleeding from her vagina, that there was no damage to the anus, that her hymen was intact, and that “this would be consistent with rapes of this nature.” Detective Paula Moreno stated that authorities could not perform a rape kit because of the time lapse between the event and reporting and because the victim was a child. Detective Moreno said that she asked the mother to bring the child’s underwear to the interview conducted at the Gingerbread House. Detective Moreno stated that she did not collect the tissue the victim used to wipe herself or the lotion used by defendant. She did collect the robe worn by defendant but it was not examined for blood stains.

Detectives Moreno and Eric Miles interviewed defendant, who denied the charge, said that he had “busted” the victim having sex “many times” with young boys in the weeks or months before the present offense, and stated that the “bumping noise” that Glenn Wiggins heard was the “cold hinge” making noise when defendant entered the victim’s bedroom. |4Pefendant told police that he went into the victim’s bedroom to get a sheet because it was cold and to cover Marcus Jenkins, who was sleeping on the couch. In his statement, defendant also stated that the victim “ain’t too stable.” Detective Moreno testified that she was unable to locate Jenkins, who defendant claimed was in the house at the time of the offense. Detective Moreno interviewed Wiggins, who said that he heard noises from the victim’s bedroom but did not witness the rape.

Wendy Westermann testified that she conducted the interview with the victim at the Gingerbread House, that she and the victim drew a picture of the victim’s family, and that the victim used the picture to describe the events. Jennifer Valentine, a DNA analyst for Northwest Crime Lab, compared cuttings from the crotch area of the victim’s panties to vaginal and buccal swabs from the victim and a reference swab from defendant. “Prostate specific antigen,” a protein found in semen, found on the panties contained a DNA mixture from at least two people. Defendant’s DNA matched as the major contributor, and the victim’s DNA matched as the minor contributor.

Considering the above evidence, the trial court found defendant guilty as charged of aggravated rape and sentenced him to the mandatory sentence of life imprisonment at hard labor without benefit. Defendant has appealed his conviction.

| ¿Discussion

Sufficiency of the Evidence

Defendant points out that the evidence introduced included only testimony, the videotape of the victim’s statement, and DNA testing results. According to defendant, the victim’s testimony was inconsistent with her videotaped statement. Defendant further notes that the victim’s testimony did not corroborate her mother’s statement regarding whether the mother referred to the child as a “little bitch” at the hospital. He questions the conflicting accounts of how the victim’s panties were gathered for evidence and the DNA tests performed on them. Defendant notes that his robe was not tested and that Wiggins did not testify at trial. Defendant points out that the victim behaved normally the day after the incident, she disliked the defendant, and he had an “ongoing disciplinary problem” with the victim.

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 when the victim is under the age of 13 years. Lack of knowledge of the victim’s age shall not be a defense. La. R.S. 14:42(A)(4).

The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-2036 (La.10/17/97), 701 So.2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422. The testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490; State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra.

As with many such investigations, there were flaws in the collection and handling of the evidence in this case. The bedclothes and the robe worn by defendant the night of February 7, 2003, were never tested for DNA, and the tissue used by the victim to clean herself was not collected. Although 17there are contradictions regarding how and when the undergarments were collected, the panties worn by the victim were turned over to police by the victim’s mother after the incident. As Det. Moreno stated, the victim’s mother was first given her daughter’s underwear at the hospital when they were removed by the victim. At the request of Det. Moreno, the mother put the panties in a bag and brought them from home to the interview at the Gingerbread House.

Defendant argued that the panties belonged to the victim’s mother, but the victim repeatedly stated that they were her underwear and the mother corroborated this statement, noting that at the time of the offense, she was smaller and wore a smaller size than her daughter. Both mother and daughter denied sharing underwear and reiterated the mother’s statement that they wore different sized clothing. During testing, epithelial cells were separated from sperm cells and it was determined that prostate specific antigen, or protein found in semen, was present on the cuttings from the victim’s underwear. Analysis showed DNA present from at least two individuals, with defendant’s DNA profile showing that he was the major contributor and the victim was the minor contributor. Ms. Valentine testified that the probability of finding someone else with the same DNA profile as that of defendant was approximately one in 62.5 billion. Contrary to defendant’s argument, the DNA evidence supports the victim’s testimony that the rape occurred and that she put her panties back on after the assault.

There was a time delay between the assault and when the victim’s mother learned of the rape. During her interview at the Gingerbread House, |sthe victim said that the assault occurred at 4:00 a.m., and she knew the time because there was a clock in her bedroom. She also told the interviewer that her mother was at the hospital when the rape occurred. She said it was “light” outside when she told her mother. The victim also told the interviewer that she went to a party before she told her mother. The mother testified that she was at the hospital with her grandmother when the rape occurred. The mother also stated that Valerie Brooks told her about the attack when the mother “walked in the door” and that she did not learn about it from her daughter. Both agreed, however, that the mother called 911 after hearing of the assault and checking her daughter’s underwear for blood. The 911 call was placed at approximately 10:40 p.m., almost 19 hours after the sexual assault.

Defendant also points out other contradictions in the victim’s statement and testimony. During the interview, the victim stated that defendant covered her mouth so that she could not scream, that defendant was naked on top of her when Glenn Wiggins walked into the room, and that she told Wiggins and Brooks what had happened the next morning. When asked at trial whether the tape of the interview was an accurate depiction, the victim agreed that it was. At trial, the victim again said that defendant covered her mouth with his hand. She then said that defendant’s hand was not over her mouth when Wiggins entered the room and that defendant had “jumped out of bed and put his robe on and said he was getting some covers.” The victim told defendant’s attorney that her earlier statement about defendant being naked at that time had not been true. She lntestified that she asked Wiggins for help, but did not approach him or Ms. Brooks the next day to tell them what had happened. Also disputed by defendant was whether it would have taken “five minutes” for Wiggins to walk from his room to the victim’s as testified by the victim. This confusion about time shows a poor conception of time rather than a lack of credibility.

Defendant’s theory of the case was that the victim concocted the story of a rape to cover her sexual activity with boys in the neighborhood. According to defendant, the victim had been sexually active with young men for a period of weeks or months. This theory, however, is belied by the medical report which noted that the victim’s hymen was intact.

While the testimony about whether the victim’s mother called her a “little bitch” at the hospital could go to the issue of credibility, it is essentially a collateral matter and has more to do with the mother’s parenting skills than whether her daughter was in fact sexually assaulted. Furthermore, the mother did not outright deny making the statement; she simply stated that she did not recall using that term in referring to her daughter.

The trial court announced its verdict, articulating that it was based largely on the statement and testimony of the victim, taken together with the DNA evidence. While there were evidentiary problems, contradictions in statements and unavailable witnesses, the evidence presented to the trial court was more than sufficient to support defendant’s conviction of aggravated rape.

\H,Denial of Requests for Funds for Expert and Time for Additional Testing

Defendant’s next assignment of error is that the trial court erred in denying his pro se motion for state funding of ancillary services which he filed on July 7, 2005. In support, defendant cites State v. Touchet, 93-2839 (La.09/06/94), 642 So.2d 1213, and State v. Phillips, 05-1338 (La.App. 1st Cir.03/29/06), 934 So.2d 162.

State v. Touchet, supra, requires a defendant to show “with a reasonable degree of specificity what type of expert is needed and for what purpose,” and “that it is more likely than not that the requested expert assistance will be required to answer a serious issue or question raised by either the prosecution’s or the defense’s case.” Id. at 1221. The defendant must therefore establish that “there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial.” Id. at 1216.

On January 6, 2005, the state filed a supplemental discovery response in which it provided defendant with copies of results from the DNA tests conducted by the North Louisiana Crime Lab. The minutes show that on April 7, 2005, defendant and his attorney appeared in court and deemed their discovery motion satisfied. On July 7, 2005, more than six months after the state provided him with copies of the DNA results from the tests it had run and less than one month before trial was set to begin, defendant filed a pro se “Motion for State Funding of Ancillary Services.”

Unlike the particularized motion filed by the defendant in the State v. Phillips, supra, in which the accused sought funding for two types of expert | nwitnesses, including a DNA expert to address the state’s DNA evidence as well as experts in psychiatry and psychology to investigate a possible insanity defense, the motion defendant filed in the instant case was standardized. Defendant asked the court for funding for ancillary services, “investigative expenses, costs for preparation of the record and transcripts, and expert witnesses necessary for counsel to prepare a constitutionally adequate defense.”

Another key difference between the instant case and State v. Phillips, supra, is the timing of the motions. In State v. Phillips, defendant’s request for funding for a DNA expert was filed less than one week after the state gave notice of its intent to use the DNA evidence. The court found the defendant’s particularized request for a hearing on his motion for funds to meet the “good cause” requirement of La. C. Cr. P. art. 521.

On the other hand, in the case sub judi-ce, defendant’s motion was filed more than six months after he was provided with copies of the state’s DNA test results and less than one month before trial. Two days before trial was set to begin, defendant’s court appointed attorney made an oral motion for a continuance to address defendant’s pro se motion. At that time, defendant’s attorney asserted for the first time that defendant was seeking funding for an independent test of the items sent to the crime lab. Defense counsel also alluded to defendant’s request that he “recontact” witnesses he had already interviewed. Both the motion for continuance and motion for state funding were denied on August 1, 2005.

|iaOn September 13, 2005, after his conviction, defendant filed a pro se motion asking for the first time that DNA testing be performed comparing the DNA of the victim’s mother to the DNA found on the victim’s panties. He also alleged that the failure to test the victim’s mother’s DNA constituted grounds for a new trial in his pro se new trial motion filed the same date.

We cannot say that the trial court erred in denying defendant’s untimely, generalized motion for funding for ancillary services. See State v. Craig, 95-2499 (La.05/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997); State v. Wafer, 31,078 (La.App. 2d Cir.09/23/98), 719 So.2d 156, writ denied, 99-1114 (La.10/01/99), 747 So.2d 1137.

Denials of Post-Trial Motions

The court, on motion of the defendant, shall grant a new trial whenever the verdict is contrary to the law and the evidence or when the court's ruling on a written motion or an objection made during the proceedings shows prejudicial error. La. C. Cr. P. art. 851(1) and (2).

Defendant filed a pro se motion for new trial, asserting entitlement to a new trial because testing was not performed to determine whether the victim’s mother’s DNA was present on the panties tested by the crime lab; the trial court erred in denying his request for funds for DNA testing; the lack of physical evidence other than the DNA obtained from the panties; and because “correct procedure was not followed in handeling (sic) of the evidence.” His defense counsel’s motions for new trial and post-verdict | ^judgment of acquittal simply claimed that the verdict rendered was contrary to the law and evidence. A second motion for post-verdict judgment of acquittal urged that the victim was the only witness to accuse defendant of rape and pointed out inconsistencies in her statements and testimony and claimed that she “fabricated this story to conceal the fact that she had been sexually active with some boys in the neighborhood.” Defense counsel also claimed that “there was absolutely no physical evidence linking defendant to this alleged crime” and that “it was clearly shown that the panties belonged to the alleged victim’s mother.”

These arguments were all addressed above. The evidence was sufficient to support defendant’s conviction of aggravated rape. Defendant’s generalized motion for state funds filed less than one month before trial was properly denied. We again note that it was only two days before trial and then again post-trial that defendant for the first time specified that he was seeking funding for independent DNA analysis. Too little, too late, found the trial court. We likewise find no error in the trial court’s denial of the post-trial motions.

Conclusion

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

AFFIRMED.


author: McKAY, Judge.

text:
    Cynthia Minor JEANMARIE v. Neirsean BUTLER.
    No. 2005-CA-1439.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 11, 2006.
    Rehearing Denied Nov. 15, 2006.
    Mark Moreau, New Orleans Legal Assistance, New Orleans, Louisiana, for Plaintiff/Appellant.
    Martha J. Maher, Cynthia A. De Luca, A.P.L.C., Metairie, Louisiana, for Defen-danVAppellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, Jr.)
   McKAY, Judge.

_JjIn this filiation action, the plaintiff, Cynthia Minor Jeanmarie, appeals the trial court’s maintaining of the defendant’s, Nir-sean Butler’s, exception of prescription. We affirm.

PACTS AND PROCEDURAL HISTORY

Ms. Jeanmarie claims to be the illegitimate daughter of George Butler. Ms. Je-anmarie was born on November 7, 1955 and Mr. Butler died on January 7, 2005. On February 18, 2005, Ms. Jeanmarie filed a petition to establish filiation as well as a restraining order and rule to show cause why a paternity test should not be done. Niersean Butler, George Butler’s widow, filed an exception of prescription pursuant to La. C.C. art 209(e), which at the time provided that a filiation action “must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.”

At the hearing on the exception, Ms. Jeanmarie argued that her action had not prescribed and that Article 209 was unconstitutional. However, Ms. Jeanmarie 1 ¡¡.never amended her pleadings to include the constitutionality issue nor was the Attorney General noticed for the hearing on the exception. On May 6, 2005, the trial court granted the defendant’s exception and dismissed the plaintiffs petition with prejudice. The trial court also granted the plaintiffs request for a preliminary injunction to Memorial Medical Center, ordering it not to destroy George Butler’s tissue sample pending her appeal. Ms. Jeanmar-ie now appeals the maintaining of the defendant’s exception of prescription.

DISCUSSION

In her assignment of errors, the plaintiff raises the following issues for review: 1) whether this case should be remanded to allow the parties to specially plead the unconstitutionality of Civil Code art. 209 and Civil Code art. 197; 2) whether Civil Code art. 209 is unconstitutional; and 3) whether Civil Code art. 197, adopted by Act 192 of 2005, governs the time limitations for filiation actions that were pending on the effective date of Act 192.

When the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition, exception, motion, or answer. The unconstitutionality of a statute cannot be raised in a memorandum, opposition, or brief as those documents do not constitute pleadings. Reeder v. North, 97-239 (La.10/21/97), 701 So.2d 1291. Furthermore, constitutional challenges must be specifically pleaded and the grounds for the claim particularized. Unwired Telecom Corp. v. Parish of Calca-sieu, 03-0732 (La.1/19/05), 903 So.2d 392. Therefore, the plaintiff in the ^instant case, by failing to amend her pleadings, has lost the ability to challenge the constitutionality of these articles.

The issue of whether Civil Code art. 197 governs the time limitations for filiation actions pending on the effective date of Act 192 has already been addressed by the Third Circuit in Succession of McKay, 05-0603 (La.App. 3 Cir. 2/1/06), 921 So.2d 1219. The Succession of McKay was decided under La. C.C. art. 209(c); while the appeal was pending the legislature passed Act 192 and enacted La. C.C. art. 197. The Third Circuit found the new law could not be applied retroactively. Id. The Third Circuit also found that there was no clear legislative intent for retroac-tivity and revival of claims. Id. We agree.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.

      . After the trial court's judgment was rendered, the legislature adopted Act 192 of 2005 which repealed La. C.C. art. 209 and enacted La. C.C. art. 197, which provides that the
        time for filiation actions is one year after the alleged parent’s death.

      . In the Succession of Grice, 462 So.2d 131 (La.1985), the Louisiana Supreme Court performed an extensive analysis of several U.S. Supreme Court cases before upholding the constitutionality of La. C.C. art. 209(c).


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Anthony Wayne DODSON, Appellant.
    No. 41,415-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2006.
    Rehearing Denied Dec. 7, 2006.

      James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

_J_jThis criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Anthony Wayne Dodson, entered a Crosby plea to illegal carrying of weapons while in the possession of controlled dangerous substances (CDS), a violation of La. R.S. 14:95(E). He was sentenced to serve eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively with any other sentence, and was fined $5,000.00. On appeal, Dodson argues that the trial court erred in denying his motion to suppress. He also argues that La. R.S. 14:95(E) is unconstitutional as applied to him. For the following reasons, we vacate Dodson’s conviction and sentence and remand the case for further proceedings.

Facts

On January 9, 2001, the defendant, Anthony Wayne Dodson, was arrested and ultimately charged by bill of information with possession of a firearm while in the possession of Schedule II, III, and IV controlled dangerous substances, a violation of La. R.S. 14:95(E). In response, Dodson filed a motion to suppress the evidence, and a hearing was conducted.

At that hearing, Louisiana State Trooper George Beck testified that just after 6:00 A.M. on January 9, 2001, he and another trooper observed a Mitsubishi Ga-lant parked so as to occupy two parking spaces at the 1-20 rest stop in Bossier Parish. The Galant had an expired Arkansas dealer license plate.

1 ¡.Trooper Beck knew that such a plate could not be “run” to return information about the car because they are not issued to a specific car, so Tpr. Beck approached the vehicle to obtain its vehicle identification number. When he approached the car, he found Dodson and another man, Fred Poole, asleep in the car. Trooper Beck knocked on the window and awoke Dodson, who got out of the car and appeared to Tpr. Beck to be “possibly intoxicated or on narcotics.” Poole also got out of the car and also appeared to be “intoxicated or high.” Trooper Beck said that Poole was

... very unsteady on his feet. He appeared to me to be under the influence of something.... And I asked him if he knew where he was, because he kept looking around all over like he didn’t realize where he was. And the only thing he would say was, “huh.” I asked him two questions, and the answer to both questions was “huh.”

Trooper Beck said that his impression that the men were under the influence of narcotics was based on his training in field sobriety, and he said that he did not smell alcohol on Dodson.

The trooper took Dodson’s Arkansas driver’s license and noted that Dodson’s hands were shaking because he was nervous. Trooper Beck learned that Dodson’s license was valid; however, he also determined through a criminal history check that Dodson had a prior arrest for narcotics. Trooper Beck said that Dodson also appeared to be unkempt “like he’d ... been out all night....” Trooper Jason Parker, riding with Tpr. Beck, testified that the troopers then learned that Poole likewise had a criminal history for narcotics; Tpr. Beck did not recall when he learned of Poole’s prior drug involvement. Dodson had no registration papers for the car, but a check revealed that the car had not been reported stolen. Trooper |sBeck issued Dodson a warning ticket for illegal parking; he decided not to write a citation after Dodson told him that he had parked in the only space available when he arrived at the rest area.

Dodson told Tpr. Beck that his destination was Springhill, Arkansas, a destination that Tpr. Beck knew to be only “forty-five minutes to an hour” away from the rest area. Beck said that based on all of this, and in particular because of the men’s criminal history, he suspected that the men might be transporting narcotics. He explained that in his experience “if someone is high and they’re in a vehicle, or appears to you to be high or intoxicated, that they more often than not are carrying narcotics with them.” Trooper Beck also said:

After I issued the ticket, I gave him back his license and Mr. Poole’s ID and separated from the traffic stop. Basically was giving him the opportunity to leave, and once I did that, I asked him if I could speak to him. He voluntarily agreed. And then I asked him for permission to search his vehicle.

Trooper Beck did not remember what he said to Dodson upon returning his license but said that he may have said “have a nice day” before saying something like “ ‘Hey, Mr. Dodson, can I speak to you?’ or something to that effect” and asking for Dodson’s consent to search. Beck explained that he had learned in his training that any request to search the car should be made separately from the traffic stop.

Trooper Jason Parker testified:

While we were at — when Trooper Beck ran the criminal histories while we were in the patrol car, while we were waiting on the response, Trooper Beck filled out a violation ticket for improper parking. Once we got the criminal histories back, Trooper Beck approached Mr. Dodson, issued him a violation ticket for the improper parking, and then presented a Louisiana consent to search form to him.

14Parker said that Dodson appeared normal (not nervous or intoxicated) to him, but that Poole appeared to be intoxicated or disoriented. The troopers were accompanied by a narcotics dog, but the dog was not used in the stop.

Dodson signed the consent form approximately 22 minutes after the stop began. Another trooper arrived and the troopers searched the vehicle. The troopers found two handguns and a quantity of several types of narcotics including methamphet-amines and marijuana. Poole had an outstanding warrant, but the troopers did not learn that until after the search and seizure.

The trial court denied Dodson’s motion to suppress, and this court denied Dodson’s writ application, advising the defendant that he had an adequate remedy on appeal in the event of conviction.

Dodson opted to plead guilty. In accepting Dodson’s guilty plea in August 2005, to the original charge of violating La. R.S. 14:95(E), the trial court engaged Dodson in the Boykin colloquy. The following portions of the exchange are relevant:

Q (The Court): You understand that you have a right to continue with your not guilty plea and have a trial?
A (The Defendant): Yes, sir.
Q: You understand that the D.A. must prove his case beyond a reasonable doubt?
A: Yes, sir.
Q: You understand that you have a right to remain silent during the course of your trial?
A: Yes, sir.
Q: You understand that your attorney would examine the D.A.’s witnesses during the course of the trial?
Is A: Yes, sir.
Q: You understand that you have a right to subpoena witnesses to testify on your behalf?
A: Yes, sir.
Q: You understand that if convicted you’d be given the right to appeal?
A: Yes, sir.
Q: You understand that if I accept your guilty plea that you’d be waiving or giving up these rights, except for the right to appeal the pre-sent — I mean the pre-trial ruling that I made on the motion to suppress?
A: Yes, sir.

The trial court did not inform Dodson that he was entitled to a trial by jury at any point during the plea proceeding, nor did Dodson’s attorney state on the record that he had informed Dodson of this right. The trial court asked Dodson’s trial counsel whether he believed that Dodson understood his rights and was voluntarily waiving them, and the attorney answered in the affirmative. The trial court then accepted Dodson’s guilty plea. Subsequently, Dodson was sentenced, and this appeal ensued.

Discussion

Boykin colloquy

The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Garth, 622 So.2d 1189 (La.App. 2d Cir.1993). A valid guilty plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

Further, La. C. Cr. P. art. 556.1(A)(3) provides, in pertinent part, as follows:

A. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.

A guilty plea will not be considered free and voluntary unless the court advises the defendant of the triad of these rights as explained in Boykin, supra, and Louisiana jurisprudence. An express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992). Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980); Morrison, supra.

Advice of Right to Confront Accusers

This court recently reversed a conviction obtained by a guilty plea where the trial judge’s advice to the defendant of his right to confront his accusers was very similar to the advice given in this case. State v. Mendenhall, 40,986 (La.App. 2d Cir.05/19/06), 930 So.2d 1196.

In Mendenhall the trial court’s confrontation advice to the defendant was:

At the trial the DA would have to prove the case beyond a reasonable doubt. Your attorney would cross-examine the DA’s witnesses.

In the instant case, the trial court’s confrontation advice was:

You understand that the D.A. must prove his case beyond a reasonable doubt? ... You understand that your attorney would examine the D.A.’s witnesses during the course of the trial?

In Dodson’s case, the judge left off the word “cross” before the word “examine” and added the phrase “during the course of the trial” to his advice. Despite these changes, the advice regarding confrontation is very similar to that used in Men-denhall. For the reasons stated in Mendenhall, regarding very similar confrontation advice deemed to be inadequate, we vacate Dodson’s conviction and sentence and remand his case to the trial court for further proceedings.

Jury Trial Advice

We also note an additional deficiency in Dodson’s Boykin colloquy. Whereas he was informed during the course of the proceedings against him of his right to a jury trial, he was not so informed when he actually entered his guilty plea.

Ordinarily, a defendant is first advised of his right to a jury trial at arraignment. La. C. Cr. P. art. 780. This advice is normally given again during the Boykin colloquy. In State v. Disotell, 40,989 (La.App. 2d Cir.05/17/06), 930 So.2d 359 and State v. Robinson, 40,983 (La.App. 2d Cir.05/17/06), 930 So.2d 345, this court held that the trial court’s failure to | ^inform the defendant of his right to a trial by jury is a fatal defect in the proceedings that requires this court to vacate and set aside the defendant’s conviction and sentence and remand the case for further proceedings.

However, the Louisiana Supreme Court has ruled that courts may look beyond a guilty plea colloquy to an expanded record to determine whether a voluntary waiver occurred. State v. Lawson, 410 So.2d 1101 (La.1982). In State v. Cusher, 400 So.2d 601 (La.1981), the court relied on the defendant’s presence at pretrial proceedings to find that he had knowledge of his right to confront witnesses. In State v. Worsham, 32,670 (La.App. 2d Cir.02/01/00), 754 So.2d 1107, the record showed that the trial court failed to inform Worsham of his right to a jury trial when accepting his guilty plea to carnal knowledge of a juvenile. However, the record also showed that Worsham was advised of his right to a jury trial at the arraignment. Thus, we found Worsham’s guilty plea to have been valid.

Although Dodson was not advised of his right to a jury trial during the guilty plea colloquy, our review of the record shows that he was advised of the right to a jury trial during the hearing on the motion to recuse the D.A.’s office. Under these limited circumstances (particularly noting that the matter is already being remanded for the discussed reasons anyway), we find that Dodson had knowledge of his right to a jury trial and knowingly entered his guilty plea. Still, we strongly caution the trial court to exercise greater vigilance in advising a criminal defendant on the record during guilty plea colloquies of the specific rights required under Boykin, supra. Advising of the right to a trial does not suffice to inform the defendant of his specific right to a jury trial. Similarly, the prosecutor is advised to | nexercise greater care in noting errors so as to assist the trial court in completing valid convictions.

Motion to Suppress

Dodson also raises two assignments of error on appeal. We choose to address the issues, even though his conviction and sentence are being vacated for other reasons, so as to resolve them for future proceedings. First, Dodson argues that the trial court erred in denying his motion to suppress all evidence seized in his custody. Dodson argues that the evidence was obtained in violation of his Constitutional right to be free from unreasonable search and seizure. There are two possible interpretations of the facts in this case that lead to different legal analyses (the trial court did not clearly articulate which interpretation it accepted). The first interpretation of the facts is that the troopers concluded the traffic stop but continued to detain Dodson until he signed the consent to search form. The second interpretation is that Dodson was free to leave at the time he consented to the search of his car.

The Fourth Amendment to the United States Constitution and Article I, § V of the Louisiana Constitution protect individuals from unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Barnard, 37,032 (La.App. 2d Cir.05/14/03), 847 So.2d 99. The state has the burden of proving the admissibility of evidence seized without a warrant. La. C. Cr. P. art. 703(D). A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors ^suppression. Barnard, supra.

In this case, the troopers observed that Dodson’s vehicle was parked sideways across two parking spaces and that its license plate had expired, ample reasons for commencing their investigation. La. C. Cr. P. art. 215.1 provides, in part:

D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

(Emphasis added.) As set forth in La. C. Cr. P. art. 215.1(D), the continued detention of a motorist after the conclusion of a traffic stop requires that the officer have reasonable suspicion of additional criminal activity. See also State v. Miller, 2000-1657 (La.10/26/01), 798 So.2d 947. Reasonable suspicion is a much lesser burden than probable cause. State v. Sewell, 40,768 (La.App. 2d Cir.10/20/05), 912 So.2d 719, writ denied, 2006-0090 (La.04/17/06), 926 So.2d 522.

Assuming arguendo that the troopers actually detained Dodson after concluding the stop for the parking violation, the circumstances show that they acted reasonably. In State v. Dixon, 39,994 (La.App. 2d Cir.09/21/05), 911 So.2d 372, this court observed:

[T]here is no bright-line rule for determining when a lawful detention lasts too long, each instance must be assessed in view of the surrounding circumstances. The diligence of the police officers in pursuing a means of investigation likely to quickly confirm or dispel their suspicions should be considered. In determining whether an officer had a reasonable suspicion of Insome separate illegal activity which justified further detention, the totality of the circumstances must be taken into account.

(Citations omitted). In this case, Tpr. Beck testified that both men appeared to be intoxicated or under the influence of drugs, and he did not smell alcohol on Dodson. His check of the men’s criminal history revealed that both men had prior arrests for narcotics, and Dodson appeared unusually nervous. The trooper said that in his experience, persons who behaved in this manner were often carrying narcotics. The entire encounter lasted only 22 minutes until Dodson signed the consent to search form, and consent was given almost contemporaneously with the end of the traffic stop. This was not an extended detention by any means, and the troopers acted reasonably under the circumstances.

Further, it is far from clear that Dodson was being detained when he consented to the search. Trooper Beck stated that he had released Dodson to go and then had asked him for his consent to search the car, consent which was freely given. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). There is no requirement under the federal constitution that a lawfully detained person be told that he is free to leave prior to giving a valid consent to search. Id.

The validity of a search pursuant to a defendant’s consent hinges on the voluntariness of the consent, which is a question of fact to be determined by the court under the facts and circumstances of each case. The factual determination of the trial judge is entitled to great weight upon review. Dixon, supra. Consensual interrogation can follow the end of a valid traffic stop. U.S. v. Sanchez-Pena, 336 F.3d 431, 442-43 (5th Cir.2003). As noted, Dodson gave his consent to search at the end of the traffic matter or immediately thereafter, and there is no indication in this record of any coercion or other improper action by the troopers. So considering, this assignment of error is without merit.

In his second assignment of error, Dodson argues that La. R.S. 14:95(E) is unconstitutional in that it denies equal protection and due process of law as presently applied. In Crosby, supra, the supreme court observed:

[E]ven an un qualified (sic) plea of guilty does not preclude review of what are regarded as ‘jurisdictional’ defects-those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. These include, for example: the lack of jurisdiction of the sentencing court; the conviction represents double jeopardy; the prosecution, when instituted, had prescribed; the state lacked constitutional or legal power to try the accused for the offense charged; the statute under which the prosecution is brought is unconstitutional; the charge brought in the indictment does not constitute a crime; certain types of patent error preventing conviction for the offense.

(Citations omitted.) Therefore, if the claim is properly preserved for review, a defendant may argue on appeal that the statute of conviction is unconstitutional.

However, in this case, this claim of unconstitutionality was not raised in the proceedings below. Issues not submitted to the trial court for decision will not be considered by the appellate court on appeal — constitutional issues are no exception. State v. Williams, 2002-1030 (La.10/15/02), 830 So.2d 984, 988.

| iaEven if we were to consider the claim, it would be without merit. Louisiana R.S. 14:95 is a long statute prohibiting a variety of acts regarding the use of several types of weapons. Dodson pled guilty to violating section (E), which provides:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

The statute has a variety of general exceptions. Excepted from the statute are persons who are:

... sheriffs and their deputies, state and city police, constables and town marshals, or persons vested with police power when in the actual discharge of official duties ... [or] sheriffs and their deputies and state and city police who are not actually discharging their official duties, provided that such persons are full time, active, and certified by the Council on Peace Officer Standards and Training and have on their persons valid identification as duly commissioned law enforcement officers.

La. R.S. 14:95(G)(1). Also excepted is:

... any law enforcement officer who is retired from full-time active law enforcement service with at least twelve years service upon retirement, provided that such retired officers have on their persons valid identification as retired law enforcement officers.

La. R.S. 14:95(G)(2). Similarly excepted are:

... active or retired reserve or auxiliary law enforcement | uofficers qualified annually by the Council on Peace Officer Standards and Training and who have on their person valid identification as active or retired reserve law or auxiliary municipal police officers.

La. R.S. 14:95(G)(3)(a).

Dodson argues that the exceptions for law officers who are not actually discharging their official duties, retired law officers and auxiliary law enforcement officers serve no legitimate state interest and deprives him of equal protection of the law.

A statute is presumed to be valid and its constitutionality should be upheld whenever possible. State v. Turner, 2005-2425 (La.07/10/06), 936 So.2d 89. Louisiana criminal statutes must be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. The supreme court upheld the statute against a constitutional attack on other grounds in State v. Blanchard, 1999-3439 (La.01/18/01), 776 So.2d 1165. With regard to the exceptions that Dodson complains of, they appear to be designed primarily to except these persons from the weapons prohibition in the statute, although by their terms they do except these persons from the drug weapons provision in section (E) as well. One rational basis for this would simply be to prevent an off-duty, reserve or retired officer from running afoul of the law inadvertently when assisting other officers or when there is a question about the on-duty or active status of the officer. The exceptions are not irrational and the statute is not invalid because of them. This assignment of error is likewise without merit.

| ^Conclusion

Per Mendenhall, supra, the confrontation advice Anthony Wayne Dodson received at his plea was inadequate, thus, we vacate Dodson’s conviction and sentence and remand this case for further proceedings.

CONVICTION AND SENTENCE VACATED; MATTER REMANDED FOR FURTHER PROCEEDINGS.

CARAWAY, J., concurs in the result.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, MOORE, and LOLLEY, JJ.

Rehearing denied.

BROWN J., would grant rehearing.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The minutes say otherwise, but in case of a conflict, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983).

      . With the exception of switchblade knives, La. R.S. 14:95(A)(4).


author: BROWN, Chief Judge. CARAWAY, J.,

text:
    Maggie HARPER, Plaintiff-Appellant, v. HORSESHOE CASINO, Defendant-Appellee.
    No. 41,470-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 19, 2006.

      William R. Long, Bossier City, for Appellant.
    Cook, Yancey, King & Galloway, by Lila E. Johnson, Robert Kennedy, Shreveport, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

h Claimant, Maggie Harper, has appealed from a judgment finding that her claim for workers’ compensation benefits from her employer, Horseshoe Casino, has prescribed. For the reasons set forth below, we reverse and remand for further proceedings.

Factual and Procedural Background

Maggie Harper was first employed at Horseshoe Casino as a slot attendant on June 20, 1994. As a result of repetitive work performed over several years, she began experiencing difficulties with her arms, wrists, hands, fingers, and thumbs. Ms. Harper consulted Dr. John T. Knight on May 15, 2000. On May 18, 2000, she reported her problem to Horseshoe, stating that she had been experiencing pain in both hands for several months. At that time, La. R.S. 23:1031.1 provided that a claim for an occupational disease was barred unless filed with the employer within six months of a determination of disability. Horseshoe admits that timely notice was filed. Thereafter, all expenses associated with Ms. Harper’s medical treatment and costs of related procedures were paid by Cannon Cochran Management Services, Inc. (“CCMSI”), a third party administrator, on behalf of Horseshoe. Ms. Harper continued to work at Horseshoe.

On June 23, 2000, Dr. Knight performed surgery, a reseetion arthroplasty of the right trapeziometacarpal joint, on Ms. Harper’s right hand. The same surgery was performed on her left hand on September 15, 2000. Ms. Harper continued to work at Horseshoe, but after the second surgery, she was assigned office duties and was paid a wage equal to what | ¡.she had been paid as a slot attendant. We note that Ms. Harper used her vacation time for the surgeries.

Dr. Knight performed an impairment and disability determination (“IDR”) on February 12, 2001. He concluded that Ms. Harper had a 23% impairment of her right upper extremity and a 22% impairment of her left upper extremity. Dr. Knight discussed this determination with Ms. Harper during a follow-up visit on February 20, 2001. Ms. Harper, who had settled into her new position, continued to work at Horseshoe at her prior wage. She also continued to see Dr. Knight on a regular basis.

When Dr. Knight relocated his office in 2001, Dr. Michelle Ritter took over Ms. Harper’s treatment. Pursuant to a request by Dr. Ritter, Dr. Raymond Dennie performed a second IDR on April 10, 2002, and Ms. Harper was given a permanent partial disability (“PPD”) rating of a 15% impairment in both upper extremities, amounting to a whole person impairment of 17%. At this time, La. R.S. 23:1031.1, which had been amended in 2001, provided a one-year prescriptive period for filing a disputed claim for compensation with the Office of Workers’ Compensation.

On February 14, 2003, Allison Roberts, a claims representative with CCMSI, sent a letter to Ms. Harper offering a full and final settlement in the amount of $20,860.20, a figure based on the PPD rating provided by Drs. Ritter and Dennie. On February 25, 2003, Ms. Roberts sent Ms. Harper a second letter rescinding the original settlement offer. This second communication informed Ms. Harper that the PPD rating was incorrect and |sthat a clarification from Dr. Ritter was needed, or failing that, Ms. Harper would be sent to another doctor for a new PPD rating determination. The letter did not inform Ms. Harper that she could or should take any further action.

After receiving this last letter, Ms. Harper contacted Dr. Ritter’s office on three separate occasions to determine whether Dr. Ritter had been contacted by Ms. Roberts regarding a clarification of Ms. Harper’s PPD rating. Personnel in Dr. Rit-ter’s office informed Ms. Harper that they had not been contacted by Ms. Roberts or anyone else regarding her PPD rating.

On January 15, 2005, Ms. Harper sent a letter to Ms. Roberts inquiring about the status of the payment for her impairment. Ms. Roberts, however, was no longer employed by CCMSI. Kim Doucette responded on February 15, 2005, informing Ms. Harper that no benefits would be paid since the prescriptive period for her claim had expired. Throughout this time, Ms. Harper continued to work full-time for Horseshoe at a wage equal to what she had earned as a slot attendant.

On February 21, 2005, Ms. Harper filed a disputed claim for compensation with the Office of Workers’ Compensation alleging that Horseshoe Casino had failed to pay benefits for her permanent partial disability. The case was submitted to a Workers’ Compensation Judge (“WCJ”) on stipulations and deposition testimony. The WCJ entered judgment dismissing Ms. Harper’s claim with prejudice on the basis of prescription. The WCJ found that Ms. Harper first experienced pain on November 1, 1999, and that her claim prescribed one year later on ^November 1, 2000. The WCJ further found that Ms. Harper failed to carry her burden of demonstrating that the prescriptive period was interrupted, suspended, or renounced. Ms. Harper has timely appealed from this adverse judgment.

Discussion

The employer does not question that Ms. Harper suffered a job-related occupational injury. Horseshoe has paid and continues to pay all medical expenses related to the injury. Ms. Harper, however, was a retained employee. She has continued to work, albeit in a different capacity, at her full wage. She works a full day at a legitimate job. She has settled into this new position and her wages are “earned” rather than “unearned” or a substitute for compensation.

The Workers’ Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.04/10/95), 652 So.2d 1323. An employee who suffers a work-related injury that later develops into a disability, has a viable cause of action. Prescription starts to run from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Id.; Smith v. Fruehauf Trailer Operations, 27,864 (La.App.2d Cir.01/24/96), 666 So.2d 1246. The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831; Manson v. City of Shreveport, 577 So.2d 1167 (La.App. 2d Cir.1991), writ denied, 580 So.2d 928 (La.1991).

La. R.S. 23:1031.1(E), as amended in 2001, provides:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

Prior to the 2001 amendment to La. R.S. 23:1031.1, the statute provided that a claim for an occupational disease was barred unless filed with the employer within six months of the occurrence of all of the three factors listed. As previously stated, Ms. Harper timely reported her disease within this six-month period. This version of the statute was silent as to when a disputed claim had to be filed with the Office of Workers’ Compensation. The Supreme Court in LaCour v. Hilti Corp., 98-2691 (La.05/18/99), 733 So.2d 1193, answered that question, applying the one-year prescription set forth in La. R.S. 23:1209(A).

Existence of all three of the factors listed in La. R.S. 23:1031.1 is necessary to trigger the running of the prescriptive period. Bynum v. Capital City Press, Inc., 95-1395 (La.07/02/96), 676 So.2d 582; LaCour, supra. Because Ms. Harper was able to earn wages in excess of 90% of her prior wage (in fact, she earned 100% of her prior wage), she was not entitled to Supplemental Earnings Benefits (SEB) and she was not “disabled from working as the results of the disease.” Therefore, prescription, whether | fiunder La. R.S. 23:1031.1 as amended in 2001 or under La. R.S. 23:1209(A) had not yet begun to run.

Louisiana’s Compensation Act provides for three types of loss. First is an entitlement to compensation for loss of earning capacity, La. R.S. 23:1221(l)-(3); second, is an entitlement to medical and hospital expenses, La. R.S. 23:1226; and third, are schedule losses, now called permanent partial disability “for anatomical loss of use or amputation,” La. R.S. 23:1221(4).

Over a continuing period of development, Ms. Harper was diagnosed and found to be permanently disabled by Dr. Dennie, who determined that Ms. Harper had a PPD rating of 15% impairment in both upper extremities (improved from 22% and 23%), amounting to a whole person impairment of 17%, based on the second IDR performed on April 10, 2002.

Because Ms. Harper suffers from a permanent partial disability, but was never too disabled to work or to earn 90% of her former wages, the subject matter of her claim is covered by La. R.S. 23:1221(4), which provides compensation “solely for anatomical loss of use ■ or amputation.” Subparagraph four is distinguished from the other subparagraphs of 23:1221, as subparagraphs one through three provide compensation for a disabled employee’s reduced ability to earn wages, whereas 23:1221(4) is “solely” concerned with compensation for the “anatomical loss” itself, not an economic harm resulting from the anatomical loss.

Horseshoe does not question that Ms. Harper has suffered an anatomical loss of use but claims that the time limitation for fifing this claim 17has passed. As stated, a claim for SEB has not prescribed as the criterion set out in La. R.S. 23:1031.1 has not occurred, that is, she is not disabled from working and earning 90% of her prior wages. However, an anatomical loss of use is an independent item of recovery even if the claimant is not disabled from working.

CCMSI sent Ms. Harper the February 14, 2003, letter to notify her of the compensation due her for her anatomical loss based on the final IDR from Dr. Dennie. Since Horseshoe never terminated Ms. Harper, and since her disability substantially improved over time, we find this second medical diagnosis on April 10, 2002, to provide the date Ms. Harper’s developing injury became, with certainty, permanently disabling for the purpose of prescription as provided by the applicable statutory provisions and jurisprudence.

Therefore, Ms. Harper’s claim for an anatomical loss would have prescribed on April 10, 2003, and she did not file her claim until February 23, 2005. This conclusion, however, fails to take into account the matter of the two letters sent to Ms. Harper by CCMSI on February 14 and 25, 2003. The first letter offered a full and final settlement based on Dr. Dennie’s PPD rating. The second letter rescinded that offer, informing Ms. Harper that the PPD rating was flawed; stating that CCMSI would correct the flaw; implying that Ms. Harper should simply wait; and further, putting Ms. Harper on notice that Dr. Ritter may be replaced as Ms. Harper’s diagnosing physician. Thereafter, CCMSI conspicuously did nothing until Ms. Harper’s letter of inquiry to them dated January 15, 2005.

| RThe exception of estoppel is recognized by Louisiana courts when an employee is lulled into a false sense of security by the employer/insurer and is induced to forgo the filing of her claim until the prescriptive period has expired. See Millican v. General Motors Corporation, 34,-207 (La.App.2d Cir.11/01/00), 771 So.2d 234, writ denied, 01-0001 (La.03/23/01), 788 So.2d 426. The claimant must show that words, action or inaction on the part of the employer/insurer induced her to withhold suit until the time for prescription had passed. If the claimant prevails on this point, the employer/insurer is es-topped from raising prescription as a defense. Id. It is not necessary for a claimant to prove that she was intentionally lulled into a false sense of security by the employer/insurer. Rambin v. Shreveport Refrigeration, Inc., 39,592 (La.App.2d Cir.05/04/05), 902 So.2d 1129.

In the instant case, we find that Ms. Roberts’ letter dated February 25, 2003, was written in such a manner that it lulled Ms. Harper, through its actual content and through the absence of specific words or notice, into a false sense of security. We reach this conclusion notwithstanding that Ms. Harper waited almost two years from when the letters were written to file her claim. Considering Ms. Harper’s continued employment with Horseshoe and Horseshoe’s previous acceptance and voluntary payment for the treatment of her occupationally-induced injury, we do not find, under the circumstances of this case, that Ms. Harper was unreasonable in waiting for Ms. Roberts to follow up as implied in her second correspondence to Ms. Harper. Therefore, Horseshoe is estopped from raising prescription as a defense.

19Conclusion

For the reasons set forth above, the WCJ’s judgment dismissing Maggie Harper’s claim on the basis of prescription is reversed. The matter is remanded for further proceedings consistent with this ruling. Costs of this appeal are to be borne by defendant, Horseshoe Casino.

REVERSED AND REMANDED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

M respectfully concur, concluding that the operation of the statute alone precluded the running of prescription.

Despite Harper’s election to seek permanent partial disability benefits, her disability could eventually lead to a claim for wage benefits in the form of supplemental earnings benefits (SEBs). The jurisprudence indicates that both partial disability benefits and SEBs may be awarded depending upon which one is more favorable to her at a given time. Andrews v. Pine Hill Wood Co., 426 So.2d 196 (La.App. 2d Cir.1982), writ denied, 432 So.2d 267 (La.1983); Lee v. Gaffney Construction. Co., 474 So.2d 994 (La.App. 5th Cir.1985), writ denied, 477 So.2d 706 (La.1985); Fielder v. Triple S. Masonry, 438 So.2d 642 (La.App. 2d Cir.1983); Guidry v. Boh Bros. Construction Co., 545 So.2d 538 (La.App. 5th Cir.1989); Wex S. Malone & H. Alston Johnson, III, Workers’ Compensation Law and Practice, § 279, in 13 Louisiana Civil Law Treatise (4th Edition 2002). There is an interrelationship between the two forms of benefits for her protection along with a credit to the employer for payments made for partial disability benefits against any future SEBs. Malone & Johnson, supra.

This somewhat unique and complicated benefit structure becomes more difficult when, instead of a work-related accident triggering the entitlement, the gradual onset of an occupational disease precipitates the need for these benefits. The gradual disabling effect of an occupational disease results in the special test for prescription embodied in La. R.S. |223:1031.1(E). Until the employee with the occupational disease becomes “disabled from working,” the statute provides that prescription on “[a]ll claims for disability” benefits does not begin to run. I agree with the majority that prescription has not yet begun to run. This is clearly seen with regard to potential SEB benefits, and because of the interrelationship of the administration of both partial disability benefits and SEBs, prescription does not run against Harper’s present claim until she becomes “disabled from working.”