author: JAMES F. McKAY III, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Danny GALINDO.
    No. 2006-KA-1090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 2007.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, David S. Pipes, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Laurie A. White, Autumn Town, Laurie White & Associates, LLC, New Orleans, LA, and Gary Bizal, Pierce & Bizal, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO JR., and Judge ROLAND L. BELSOME.
   JAMES F. McKAY III, Judge.

11 STATEMENT OF THE CASE

On January 10, 2005, the State filed a bill of information charging the defendant-appellant Danny Galindo with one count of violating La. R.S. 14:43.1 relative to sexual battery. The defendant entered a not guilty plea at his arraignment on January 19, 2005. On April 19, 2005, the defendant was tried and convicted by a six-person jury. On April 22, 2005, new counsel enrolled, and on May 6, 2005 a motion for new trial was filed. The trial court denied the motion on May 19th. After hearing testimony on August 19, 2005, the court sentenced the defendant to serve six years at hard labor and ordered that he comply with the sexual offender registration law. The defendant subsequently filed a motion to reconsider sentence which was denied by the trial court on August 26, 2005. On the same date, the court amended the defendant’s sentence to direct that it be served without the benefit of probation, parole, or suspension of sentence.

Although the trial court had granted the defendant’s motion for an appeal on August 26, 2005, the intervention of Hurricane Katrina resulted in a lack of notice for the appeal. Therefore, on April 17, 2006, counsel filed a motion requesting ^notice of appeal and the setting of a new return date. The appeal was subsequently lodged on August 17, 2006. This appeal follows.

STATEMENT OF THE FACTS

M.M. and E.M., eight-year old girls, were friends from school who often played together. E.M., the victim, lived with her grandparents, her mother, and her stepfather in a residence which was next door to the defendant’s home. The two girls often played at E.M.’s house and sometimes they played inside the defendant’s home. On one occasion, M.M. saw the defendant touch E.M.’s posterior. M.M. subsequently told her mother, G.K., about the incident. Because E.M.’s mother, E.H., was out of town, G.K. did not tell E.H. about what she was told until a few days later. According to her trial testimony, G.K. told E.H. that M.M. said that, while the girls were playing at the defendant’s home, E.M. took off her pants and was jumping on the bed; when she lay down, the defendant lifted up her legs and “blew a raspberry on her butt.”

After G.K. had informed E.H. of what M.M. said, E.H. asked her daughter E.M. about whether the defendant had ever done anything to her that was not right. E.M. began to cry and told her mother a story which differed from that related to G.K. by M.M. The victim said that the defendant pulled down her underwear and touched her “private area.” When her mother asked how many times this occurred, E.M. said that it was more times than she could count.

E.H. testified at trial that she and her husband, E.M.’s stepfather, had been good friends with the defendant and his wife. The couples socialized at gatherings, attended movies together, and also E.H. and Stacy Galindo, the defendant’s wife, loaned each other clothes to wear. The Galindos owned a dog, which E.M. loved, and the defendant would invite E.M. to go walk the dog almost daily; sometimes | ¡¡Stacy asked her to go also. E.M. liked to go to the defendant’s house to play with the dog and occasionally went there with her friend M.M. E.H. testified that she always assumed that her daughter was playing with the defendant’s dog when she was at his house and was unaware that she was playing with the defendant. However, she knew that E.M. would often go to the defendant’s house to have Kool-Aid after walking the dog. E.H. denied that her daughter ever spent more than fifteen minutes at the defendant’s house at a time, stating that she tried not to let her stay very long so that the defendant and his wife would not be bothered.

After E.H. learned of the sexual abuse, she contacted the police and spoke with Detective Coulon. The detective arranged for E.M. to be examined at Children’s Hospital. Dr. Ellie Wetsman, who was qualified as an expert in pediatric medicine including the treatment of pediatric sexual abuse, testified at trial that she examined the victim which examination included obtaining a history. E.M. told the doctor that she had been touched in the genitals, specifically the vagina, and possibly the anus, by “Danny” who used his hand and his mouth. The physical examination was negative for any evidence of injury, which was consistent with the history given by the victim.

Detective Kurt Coulon testified at trial that he was assigned to the Child Abuse Unit on July 81, 2004 and investigated an alleged molestation on Homedale Street. He interviewed the victim and her mother. The victim cried while he was asking her what happened. Detective Coulon arranged for E.M. to go to the Child Advocacy Center to document her statement by video and audiotape; a forensic interviewer took the statement with no one else present in the room. After the statement was taken, Detective Coulon obtained an arrest warrant for the defendant. The videotape of E.M.’s statement was played for the jury.

|4On cross-examination, Detective Coul-on was asked if there was ever any statement from the victim or her mother about the defendant, prior to the videotaped statement, about the defendant blowing a “raspberry” on the victim’s anus. The detective stated that there was not, nor was there any reference to this on the tape. Instead, the victim on the tape merely said that the defendant walked into the room, pulled down her pants and touched her vagina. However, at the time Detective Coulon prepared the arrest warrant, he included a separate charge of oral sexual battery based upon the defendant having placed his mouth on the victim’s anus. In further testimony, the detective agreed that, according to the victim’s videotaped statement, it was M.M. who was running around the defendant’s house naked, not the victim.

E.M. testified that she lived next door to the defendant. She liked to play with his dog and take him for walks. Sometimes she would walk the dog alone, sometimes with Stacy, the defendant’s wife, or with the defendant. She also would go into the defendant’s house, sometimes alone and sometimes with her friend M.M. She testified that the defendant touched her “private” in his bedroom. She said that it happened more than once. He used his hand to touch her. When it happened she was lying down on the bed on her back. During cross-examination, E.M. said that the defendant always touched her in the same way and that he never did anything more than touch her and walk away. She also said that the defendant “blew a raspberry on her butt”, and then she admitted that she told the assistant district attorneys the day before trial that she made that up. She said that she had gotten confused. She further testified that the night before trial she spoke with her mother about her testimony and her mother told her to tell the court that the defendant did blow a “raspberry” on her behind.

|RIn further cross-examination, E.M. said she usually stayed at the defendant’s house for around an hour. She said sometimes her mother came to get her and other times the defendant and/or his wife would tell her that it was time for her to go home. E.M. said she continued to go to the defendant’s home after he touched her and that she was not afraid to go there. Also, E.M. said she looked forward to being allowed to spend the night at the defendant’s house with his niece Casey, but she had not done so yet.

On redirect, E.M. testified that the defendant would pull her pants down before touching her.

The defense called several witnesses at trial. R.M., the victim’s grandfather, was asked whether he had desired to purchase the defendant’s house for his daughter and her family, which he denied. He was also asked if he knew another neighbor, Shelley Ruiz, and what conversations they had about the allegation against the defendant. R.M. stated that he told Ms. Ruiz what the defendant had done and how upset the family was. R.M. testified that he may have made comments that he wished the Galindos would move.

C.M., the victim’s grandmother, testified that the victim was not allowed to go outside without an adult present. She said that, as far as she knew, the victim never went to the defendant’s house by herself. She stated, however, that she worked each day until 5:00 p.m. C.M. explained that, when E.M. was not in school, she might have been with C.M.’s younger daughter, who was sixteen, or at her other grandmother’s day care center until her mother or stepfather picked her up after work. C.M. further explained that E.M. went to an after school program at her elementary school, and that she was with her aunt or other grandmother on days when there was no school. According to C.M., the victim was not home on | ^school day afternoons until 4:30 or 5:00, although sometimes E.M.’s mother got off work earlier and picked E.M. up from school. In further testimony, C.M. stated that she relayed the allegations against the defendant to her neighbor Shelley Ruiz and Ms. Ruiz’s girlfriend Kim. Both women were supportive.

Shelley Ruiz testified that she knew the defendant, the victim, and the victim’s grandparents. She testified that at approximately 10:15 p.m. one Thursday, the victim’s grandparents walked over to her and her partner and told them that they had reason to believe that the defendant had molested E.M. They related that M.M.’s mother had told E.H. about an incident which her daughter had told to her. E.H. then questioned E.M. about it, and E.M. told her that the defendant blew “raspberries” on her and had her disrobe. Ms. Ruiz explained that it was her practice to write down everything, and therefore she had taken notes after her conversation with E.M.’s grandparents. Included in her notes was a statement from R.M. that he would buy the defendant’s house for his daughter and E.M. to live in. Ms. Ruiz asked him why he would want to have E.M. live in a house where she was molested. A few days later, C.M. came over to Ms. Ruiz and accused her of having betrayed them and of being a molester like the defendant. C.M. stated that she wished she could press charges against Ms. Ruiz. Ms. Ruiz did not know why C.M. accused her, but was worried and upset because she was a teacher. Ms. Ruiz on cross-examination testified that she tried to make a complaint to the police about the threats from C.M. The police refused to file a report.

In additional testimony Ms. Ruiz stated that, after the defendant was arrested, E.M. several times tried to go to his house when the defendant’s sister Michelle was working in the garden.

|7Stephanie Burlette, the defendant’s sister-in-law, testified that she had been at the defendant’s house on occasion when E.M. was there. She said she saw E.M. come over unescorted and that while she was there playing with Ms. Burlette’s daughter Casey, none of E.M.’s relatives came to check on her. One time E.M. stayed for two or three hours playing with Casey. On another day E.M. and Casey were in a bedroom coloring when Ms. Bur-lette heard E.M. say that the.bedroom was supposed to be her room and that the bedroom where the defendant and his wife stayed was going to be her parents’ room. On another day, there was a party at the house for the defendant’s birthday. Ms. Burlette noticed that E.M.’s stepfather and grandparents were all there with E.M. However, at some point during the party they left, and E.M. stayed behind. E.M.’s mother was at work that day.

On cross-examination, Ms. Burlette, whose sister was married to the defendant, stated that her daughter Casey often spent time at the defendant’s house with him.

The defendant’s father, Leonidas Galin-do, testified that E.M.’s grandparents were angry when he told them how much the defendant had paid for the house. They said that they had been trying to buy the house for a long time, but that the owner wanted too much money.

The defendant’s wife Stacey Galindo testified at some length. She stated that E.M., her mother, and her stepfather moved in next door in February 2004. Stacey got to know E.M. because of the Galindo’s dog Frodo. E.M. loved the dog and wanted to walk him. Stacy and the defendant, who had become friendly with the family, did not mind E.M. going along when the dog was walked. Stacey testified that sometimes she walked the dog and other times the defendant did. She |sfurther testified that E.M. often just showed up at their home and came inside. One time, Stacey was in the shower but had left the back door unlocked; E.M. walked in on her saying that she had come to walk the dog. Many times E.M. stayed at the Galindo’s house for two or three hours, playing and eating snacks which Stacey bought specifically for her. E.M.’s family members did not come and check on her when she was at the Galindo’s home; instead the Galindos would have to send E.M. home. During the school year, E.M. came over to the house late in the day, after 5:00 p.m., when Stacey was home from work. After the allegations were made against the defendant, they moved away because the victim’s stepfather and grandfather made threats and followed her when she went to work or walked the dog. By then, she was pregnant, and at the time of trial had given birth to a child.

On cross-examination, Stacey Galindo explained that E.M. often played in an extra bedroom which Stacey had decorated all in pink for her niece Casey. E.M. often played alone, for example by having pretend tea parties. She never played with the defendant according to Stacey. Prior to the allegations against her husband, Stacey had no problems with E.M.’s family; they were wonderful neighbors, and the couples were friendly. She further testified that the defendant was a chef and his schedule varied. Sometimes he worked from 5:30 a.m. until 2:00 or 2:30 p.m., and other times he worked from around 2:00 p.m. until 11:00 p.m.

The final defense witness was the defendant. He testified that E.M. came over to his house by herself frequently. He was generally not alone with her during the school year because he had to be at work at 2:30 p.m. and left home at approximately 1:30 p.m., although occasionally he had off days and would walk the dog with her and allow her to come in the house to play by herself. When she |3was there, he watched television or played video games. He recalled one incident where he blew a raspberry on her stomach. His wife was home and began tickling him; she told E.M. and M.M. how ticklish he was and the girls started tickling him also. The defendant began tickling them back, and at some point, he picked up E.M. and blew a “raspberry” on her stomach. He stated that he had blown raspberries on other children, such as his niece Casey and his cousins. He said it had nothing to do with sex. In further testimony, the defendant denied that E.M. was ever naked in his house or that he ever touched her vagina. He denied ever engaging in any inappropriate behavior with her.

On cross-examination, the defendant stated that he initiated E.M. walking the dog but that she initiated coming over to the house. He stated that she often would simply come over, knock on the door, and he would allow her inside. Then she would “just go play.” If she became a nuisance, he and his wife would simply tell her to go home.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error the appellant avers that the evidence was insufficient to support his conviction for sexual battery. La. R.S. 14:43.1 provides in pertinent part that:

Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person ... has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.

The appellant’s argument is not as to the proof of the particular elements of the offense, but rather that the victim’s testimony was not credible because she, as well |1flas M.M., gave an inconsistent story, there was a total lack of physical evidence, and the defense put forth evidence to explain why the victim’s family had a motivation to fabricate the allegations against him.

The test for determining the sufficiency of evidence to support a conviction was set forth in State v. Armstead, 2002-1030, pp. 5-6 (La.App. 4 Cir. 11/6/02), 832 So.2d 389, 393:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305[sic] La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432.

In the instant case, the victim testified to the actions of the defendant, specifically that he pulled down her pants and touched her vagina on more than one occasion. E.H., the victim’s mother, testified that the victim became very upset and cried when she first asked her about possible inappropriate actions by the defendant. The testimony of G.K. indicated that M.M. was a witness to a least one Inincident, and M.M. stated that she had told her mother the truth. Although the appellant contends that there was no physical evidence to support the victim’s testimony, the lack of any does not contradict the victim’s account. As Dr. Wetsman explained, the lack of physical evidence of molestation was consistent with the history given by the victim.

The appellant also contends that there was conflicting testimony on when the incidents could have occurred. He notes the testimony about the victim’s school and vacation schedule and the defendant’s work schedule. However, the defendant and his "wife both testified that the defendant’s work schedule did not prevent him from being home alone in the afternoon on his off-days. Furthermore, the defendant admitted that he was alone in his house with the victim on occasion.

As to the appellant’s contention that the victim’s grandparents wanted to purchase the house which the defendant owned, there is little support for this in the record. While the defendant’s father testified that the victim’s grandfather was upset that he was unable to purchase the house, there is nothing to indicate that he influenced the victim into making false allegations against the defendant. In fact, both the victim’s family members and the defendant and his wife indicated that the two families were very friendly and socialized without any problems. Stacey Galindo testified specifically that the victim’s family were wonderful neighbors, negating any inference that there was animosity about the Galindo’s purchase of the house.

The strongest support for the appellant’s argument that the evidence was insufficient was the admissions of M.M. and E.M. that, on the day before the trial, 112they told the prosecutors that the defendant had never blown a “raspberry” on E.M.’s “butt”. The girls then indicated at trial that he had. However, the girls were questioned at length about the discrepancies in their statements to the prosecutors and their trial testimony. The jury was able to observe the demeanor of the girls, as well as view the videotaped statement that E.M. had given, and apparently found her credible. Contrary to the appellant’s argument, the victim’s testimony was not so suspect as to render it invalid. Thus, viewing the evidence in the light most favorable to the prosecution, the jury could legitimately find beyond a reasonable doubt that the appellant committed the crime of sexual battery.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the appellant argues that the bill of information was fatally defective because it did not set forth the elements of the crime, specifically the age of the victim and the alleged acts with a citation to the subsection of La. R.S. 14:43.1.

In State v. Johnson, 2002-254 (La.App. 5 Cir. 6/26/02), 822 So.2d 840, the court addressed this issue as follows:

Defendant has a constitutional right to be advised, in a criminal prosecution, of the nature and cause of the accusations against him. La. Const.1974, art. I, § 13. Code of Criminal Procedure article 464 provides: “The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Bill of Information must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. State v. Allen, 00-0194 (La.App. 4 Cir. 08/01/01), 793 So.2d 426, 433, citing State v. Comeaux, 408 So.2d 1099 (La.1981). When the name of the person injured is substantial and not merely descriptive, it shall be stated in the indictment. LSA-C.Cr.P. art. 473.
|13A defendant may not complain of technical insufficiency in an indictment for the first time after conviction, when the indictment fairly informed the accused of the charge against him and the defendant is not prejudiced by the defect. State v. Michels, 98-608 (La.App. 5 Cir. 1/13/99), 726 So.2d 449. The omission of an essential fact does not necessarily create a prejudicial error because such facts can be supplied during discovery, by a bill of particulars. State v. Allen, supra. For these reasons, after the verdict a defendant ordinarily cannot complain of the insufficiency of a Bill of Information “unless it is so defective that it does not set forth an identifiable offense against the laws of this state and inform the defendant of the statutory basis of the offense.” State v. Allen, 793 So.2d 426, 434.

Johnson, pp-3-1, 822 So.2d at 842-43.

In the instant case the defendant did not file a motion to quash or object to the bill of information prior to trial. He also did not file any motion for discovery or a request for a bill of particulars. Instead, the record shows that he was given a copy of the police report at arraignment. Furthermore, the record contains the arrest warrant application, which contains a detailed description of the alleged offense and the age of the victim. Additionally, three weeks after arraignment, a preliminary hearing was held at which Detective Coulon and the victim’s mother testified for the State, while the defense presented the victim’s grandparents as witnesses. The record indicates that the defendant was well aware of the allegations against him and was in no way prejudiced by the fact that the bill of information did not include the age of the victim or the specific nature of the acts he was alleged to have committed.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the appellant argues that he was denied due process and a fair trial when the prosecutors committed misconduct, first by | uvouching for the credibility of the victim during closing arguments, and secondly by acting unprofessionally during the trial.

As to the first allegation, the appellant cites two comments made during the prosecutor’s original closing argument and one comment made during rebuttal. However, there were no objections made to any of these comments. Thus, any error has not been preserved for appeal. See La.C.Cr.P. art. 841.

The second allegation is that the prosecutors acted unprofessionally during the trial by giggling and laughing inappropriately; defense counsel brought their behavior up to the court, thus placing it on the record, and asked that the behavior stop. The court specifically asked if the defense was objecting; counsel replied yes;- and the court sustained the objections. However, counsel did not request then a mistrial or that the jury be admonished.

The appellant fails to address the lack of a motion for a mistrial, although he argues that the misconduct denied him a fair trial. A defendant’s failure to move for a mistrial bars a defendant from complaining of the trial court’s failure to grant a mistrial. State v. Weaver, 99-2376, p. 5 (La.App. 4 Cir. 9/27/00), 770 So.2d 831, 834. Moreover, when the trial court sustains an objection to the prosecutor’s remarks and defense counsel fails to request an admonition or a mistrial, the defendant cannot claim the comment was prejudicial. State v. Dank, 99-0890, pp. 10-11 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, 158; State v. Biagas, 99-2652, p. 11 (La.App. 4 Cir. 2/16/00), 754 So.2d 1111, 1117-18, citing State v. Baylis, 388 So.2d 713, 720-721 (La.1980).

The appellant’s third assignment of error was not preserved for review.

1 ^ASSIGNMENT OP ERROR NUMBER FOUR

In his fourth assignment of error, the appellant avers that the sentence of six years without the benefit of probation, parole, or suspension of sentence is excessive, arbitrary, capricious, and disproportionate. In support of his argument, he notes the testimony of the multitude of witnesses who testified on his behalf at the sentencing hearing, his total lack of a criminal record, the trial court’s refusal to allow a sentencing recommendation from the probation officer who completed a presen-tence investigation report, and “unusual comments” from the trial court.

La. Const, art. I, § 20 explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, 97-1095 (La.App. 4 Cir. 3/16/99), 727 So.2d 1264; State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly 11fidisproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

Generally, a reviewing court must determine whether the trial judge adequately complied with the guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983); State v. Quebedeaux, 424 So.2d 1009 (La.1982). If adequate compliance with Art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Brogdon, 457 So.2d 616 (La.1984), State v. Guajardo, 428 So.2d 468 (La.1988); Quebedeaux, supra.

The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

As noted by the appellant, the trial court heard testimony from twenty-two defense witnesses at the sentencing hearing, although most of the testimony actually consisted of the witnesses reading the letters they had written asking for leniency. Some of the witnesses, Shelly Ruiz, Stephanie Burlette, Stacey Galindo, Leonidas Galindo, and the appellant himself, had also testified at the trial. One of h7the witnesses, Gary Schwartz, was the defendant’s supervisor at his place of employment. Others were family members and friends of the appellant. Much of the testimony painted a picture of the appellant as a generous person who did charity work, stayed away from drugs and alcohol, was loyal to his friends and family, and was involved in his church and community. One of his friends, Heidi Kiesling, testified that she and the appellant along with four other people had been friends from high school. Although some of the group had moved away, she continued to livé in Me-tairie and to see him. She testified that the defendant had spent time with her ten-year old son since his birth and that she had no qualms about allowing him to play with the defendant.

Another witness, Robert Lapole, stated that he had traveled from Texas to testify and that, when he was overseas in the military, he gave the. appellant power of attorney over his affairs. Another witness was the Reverend Pedro Nunez, a priest assigned to St. Raphael church. He stated that he had known the appellant and his family for twenty years and that the Galin-do family, including the appellant, had been a role model in the Hispanic community.

The appellant’s aunt, Maria Torres Cou-villion, traveled from Arizona to testify. She stated that she had lived a few houses from the appellant and his family from the time her daughter was one year old until she was eight years old (she was eighteen at the time of the hearing). Mrs. Couvil-lion denied that there had ever been any indication or allegation that the appellant had molested his cousin. Another witness, Karen DiMartino Launey, who is related to the appellant by marriage, similarly testified that her two young daughters spent time around the appellant and that she never saw any evidence of molestation. She testified she would not hesitate to leave them with him.

|1sAt the sentencing proceeding, the State presented three witnesses, the victim’s grandparents and mother. The gist of the testimony of the grandparents was their personal feelings of betrayal and anger toward the appellant and his family. The victim’s mother testified that the victim had undergone counseling for a year, along with the other family members, and that the victim often asked when the matter would be over. She further testified that the victim had been released from individual counseling just prior to the trial, but was still participating in family counseling. The victim’s mother said that she was personally looking mainly for closure, and that she believed a sentence of two to five years would be appropriate.

The appellant contends that the trial court made some unusual comments during the sentencing hearing. First, he notes that the court interrupted the vie-tim’s grandmother, stating that its concern was only the defendant and not the families. The court stated that neither the family of the victim nor the family of the appellant should feel responsible for what occurred. However, given the nature of the testimony being given at the time, the court’s comments make perfect sense. C.M. had discussed writing a lengthy letter and her counseling to deal with her anger and loss of trust. However, she referred to feelings of betrayal not only as to the appellant, but also as to his parents, his in-laws, and his wife. Also, prior to C.M. testifying, the victim’s grandfather had testified. During cross-examination, defense counsel had asked about his role as a caretaker of his granddaughter and whether the victim was allowed to go over to the appellant’s house unsupervised. Thus, the trial court was obviously being given evidence, which inferred the' fault of the victim’s caretakers. It does not appear unusual that the court would 119proactively attempt to keep the focus of the sentencing hearing on the appellant only.

The appellant also complains that the trial court stated for the record that it was its policy not to allow the probation officer to recommend a sentence in the presen-tence investigation report. However, the court explained that it felt it was the role of the court to determine the sentence. This view of the court’s role did not impact the ultimate sentence, which the court chose to impose.

After hearing all the testimony at the sentencing hearing, the court expounded at length on what it considered important in its sentencing decision. First, the court stated that it accepted the jury’s verdict. The court then discussed how difficult

these types of crimes were to determine sentencing because “the persons involved usually have no record or there is no record of violence. They’re persons who are known and respected in the community.” The court then stated that its focus was on the victim, and that toward that end the court had reviewed the, videotape of the victim’s statement after the trial, in the presence of counsel. The court stated that it found the tape compelling; the court already felt that the testimony of the victim and her friend at trial was “very, very compelling.” Finally, the court stated that it was taking into consideration the fact that the appellant had a wife, a young child, and a very loving family, but nevertheless, that there were recurring acts against a young and vulnerable victim for which the law provided special protection. The court then imposed a mid-range sentence of six years.

| ^Considering that the court, had the benefit of a presentence investigation report, conducted a lengthy sentencing hearing, and gave extensive reasons for its sentencing decision, there is no basis to find that the court abused its discretion. Nevertheless, the appellant suggests that the sentence imposed is disproportionate and excessive by citing to cases involving more egregious factual situations but where the defendants received similar or lesser sentences. However, the appellant does not mention other cases wherein the defendants received similar sentences. For example, in State v. Taylor, 95-179 (La.App. 3 Cir. 10/4/95), 663 So.2d 336, the defendant, a first felony offender, received consecutive sentences of eight years for sexual battery and three years for attempted indecent behavior with juvenile, and the court found the sentences were not excessive.

In State v. Badeaux, 01-0406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, maximum consecutive sentences for sexual battery and indecent behavior with a juvenile were upheld. The court noted the trial court’s reliance on-the factors of the severity of the crime, the vulnerability of the child victim, who was fourteen, and the use of the defendant’s position as an adult neighbor to commit the' offense. The court rejected the defendant’s argument that his status as a first felony offender with a history of mental illness should militate against the maximum sentences; the court also held that the trial court adequately justified imposing consecutive sentences for offenses arising from one course of conduct.

In State v. Hubb, 97-304 (La.App. 5 Cir. 9/30/97), 700 So.2d 1103, eight-year sentences were not constitutionally excessive for two defendants who pled guilty to sexual battery. The defendants “french” kissed both victims on several occasions. One defendant exposed his genitals to both children and forced one of the children to fondle him, and the other defendant attempted to make one of the |2ichildren fondle him and showed the other child photographs of nude women. One of the defendants had no criminal history; the other had only misdemeanor offenses.

In State v. Toups, 546 So.2d 549 (La.App. 1 Cir.1989), the defendant was sentenced to eight years for the sexual battery of a five-year old child who was the daughter of his girlfriend. The child testified that he had touched her private place and forced her to rub his. Despite having no prior felony convictions, the appellate court found that the sentence close to the maximum was not excessive.

As to the cases cited by the appellant, in none of them did the court find the sentences excessive. Furthermore, the cases arguably are distinguishable. In State v. Castillo, 97-595 (La.App. 5 Cir. 11/25/97), 705 So.2d 751, the defendant received a three-year sentence for putting his hands into a nine-year old child’s pants, rubbing her posterior, and placing his finger into her vagina. However, the defendant also entered a guilty plea, thus sparing the child the necessity of testifying in open court; a lesser sentence for virtually the same action as in the instant case is thus justified.

Similarly, in State v. Wiltumer, 2003-0719 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, the defendant received a five-year sentence for sexual battery of a twelve-year old mentally disabled boy. Although his actions were more egregious than in the instant case, he too pled guilty rather than forcing the victim to go to trial. The other eases cited by the appellant, State v. Smith, 34,325 (La.App. 2 Cir. 12/20/00), 775 So.2d 640, and State v. Wheat, 612 So.2d 176 (La.App. 1 Cir.1992), also involved guilty pleas.

122The appellant’s sentence falls within the mid-range of the statute as written at the time of the offense. It is not disproportionate to many other sentences imposed on first offenders and is not excessive.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth assignment of error the appellant avers that his trial counsel was ineffective in failing to move to quash the bill of information and in not filing a motion for a bill of particulars. He further avers that his counsel was ineffective because he did not file a motion in limine to exclude any reference to the allegation that the defendant blew a “raspberry” on the victim’s anus after learning two days before trial that the victim and her witness had recanted the allegation.

As stated in State v. Reichard, 2005-1262 (La.App. 4 Cir. 6/21/06), 935 So.2d 727:

Ordinarily, an ineffective assistance claim is better addressed in an application for post-conviction relief filed in the trial court in which a full evidentiary hearing can be held. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient to permit a determination of counsel’s effectiveness at trial, the claims may be addressed on appeal. State v. Wessinger, 98-1234, (La.5/28/99), 736 So.2d 162; State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147; State v. McGee, 98-1508, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 338, 341; State v. Causey, 96-2723, p. 10 (La.App. 4 Cir. 10/21/98), 721 So.2d 78, 84. Indeed, when the appellate record is sufficient, “the interests of judicial economy justify consideration of the issues on appeal.” State v. Kanost, 99-1822, p. 6 (La.App. 4 Cir. 3/29/00), 759 So.2d 184, 188. Such is the case here.
The standard for assessing an ineffective assistance of counsel claim is well-settled; the two-prong standard enunciated in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), must be applied. State v. Fuller, 454 So.2d 119 (La.1984); State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on reh’g); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, a defendant must establish both that counsel’s performance was | ^deficient and that the deficiency prejudiced the defendant. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. As to the former, the defendant must show that counsel made errors so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, 97-2061, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. As to the latter, the defendant must show that “counsel’s errors were so serious as to deprive him of a fair trial, i.e., a trial whose result is reliable.” McGee, 98-1508 at p. 5, 758 So.2d at 342. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236.
An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 97-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444 (La.1983)). Given that “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Crowell, 99-2238, p. 8 (La.App. 4 Cir. 11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So .2d 714, 724 (La.1987)). It follows then “trial strategy” type errors do not constitute ineffective assistance of counsel. Crowell, 99-2238, at p. 8, 773 So.2d at 878 (citing State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986)); State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107 (noting that “[t]his court has previously recognized that if an alleged error falls ‘within the ambit of trial strategy’ it does not ‘establish ineffective assistance of counsel.’ ”))

Reichard, pp. 4-6, 935 So.2d at 730-31.

As to the first complaint, the record is clearly sufficient to resolve the question. Even if defense counsel should have requested a bill of particulars, there is no indication that the appellant was prejudiced. Counsel was well aware of the specific allegations against his client and was well-prepared for trial. There is absolutely nothing in the record to indicate that, even if a bill of particulars had been provided, counsel would have been prepared better or differently. As _[^discussed in connection with the appellant’s first assignment of error, the preliminary hearing, arrest warrant application, and police report all provided defense counsel with sufficient information to determine the particulars of the allegations against which he had to mount a defense.

As to the second complaint, the record also appears sufficient. The claim arises from the fact that the prosecutors advised the defense counsel that, in an interview with the two girls prior to trial, the girls had recanted the allegation that the appellant had blown a “raspberry” on the victim’s anus. The appellant suggests that it was deficient conduct on the part of his counsel to explore this allegation during cross-examination of the children because it constituted evidence of the separate crime of oral sexual battery, La. R.S. 14:43.3, for which he had originally been arrested pursuant to a warrant, but for which he was not prosecuted. Thus, the appellant argues, his counsel erroneously allowed an unadjudicated sexual crime into evidence, instead of moving to exclude any reference to it or obtaining a stipulation that the girls had changed their stories.

Here, the record does not affirmatively show why counsel chose to question the girls about the discrepancy between what they originally reported regarding the “raspberry” incident and what they told the assistant district attorneys just prior to trial. However, it appears to have been a conscious choice of trial strategy. The central issue in the case was the credibility of E.M. and M.M. Defense counsel carefully elicited that both girls had changed their statements in an obvious attempt to impeach their credibility. Notably, when counsel questioned M.M. about her inconsistent statement to the assistant district attorney, the State objected repeatedly and unsuccessfully. Defense counsel then elicited from M.M. that, after speaking to the prosecutors the day before trial, her mother told her what to say at | atrial. The prosecutor objected again when defense counsel questioned E.M. about the change in her statement. Defense counsel was able to have E.M. admit that she told the prosecutors that she “made up” this particular allegation against the appellant, although she also said she was confused when she spoke with them. E.M. also, like M.M., testified that her mother told her “to tell everybody about [a] raspberry being blown” on her anus.

Although the jury ultimately found that E.M. and M.M. were credible, it appears that defense counsel made a calculated choice to attack their credibility with the fact that they recanted a portion of the allegations when they spoke to the assistant district attorneys prior to trial. The fact that a strategy proves unsuccessful does not constitute ineffective assistance of counsel.

This assignment of error lacks merit.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER SIX

In his final assignment of error, the appellant requests review of the record for any errors patent, which review this Court undertakes even in the absence of an assignment of error. That review reveals no errors.

For the above and foregoing reasons we affirm the appellant’s conviction and sentence.

AFFIRMED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

Li respectfully dissent from the majority’s opinion.

The appellant, Danny Galindo has cited six assignments of error. However, all can be encapsulated into an assertion of a violation of his Due Process rights under the Fourteenth Amendment. He argues that the evidence relied upon for prosecution is so insufficient and problematic that his conviction cannot be upheld. It is further noted that prior to trial key statements made by the minor victim and her only witness, also a minor, were withdrawn. The exact nature and content of the recanted statements is not specifically mentioned in the record. It can however be ascertained from the record that the State withdrew the original charge of oral sexual battery which comprised the initial reason for the investigation and subsequent arrest. Also, on cross-examination the girls admitted to a recantation of their statements regarding the appellant blowing a raspberry on E.M.’s butt. Consequently, we are left with at best inconsistent victim statements that appear to have been withdrawn or at worst a conviction knowingly obtained with perjured testimony.

The United States Supreme Court has held that knowingly using perjured testimony is grounds to vacate the conviction “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) see also, Jenkins v. Artuz, 294 F.3d 284, 293 (2d Cir.2002). It follows that when representatives of the State knowingly use false testimony that is any way relevant to the case, to obtain a conviction, that conviction violates an individual’s due process right under the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959).

In Jenkins v. Artuz, supra, Jenkins was convicted of murder and criminal possession of a weapon. Jenkins filed a writ of habeas corpus that was granted by the district court and affirmed by the appellate court. One claim raised by Jenkins was that false testimony of a witness at trial and state attorney’s conduct violated his right to due process. At trial, the State offered two witnesses with direct testimony linking Jenkins to the murder. The first claimed to be an eyewitness. His testimony contained numerous inconsistencies and contradicting statements. Next the State produced David Morgan, who claimed he had witnessed a fight between Jenkins and the victim the day before the murder.

In exchange for Morgan’s testimony, the State had offered him a plea agreement for his recent arrest for possession of crack cocaine with the intent to sell. During the defense’s cross-examination, Morgan falsely denied the existence of the plea agreement. On redirect, the assistant district attorney in the case reinforced the impression that no plea agreement existed. Later in the course of the assistant district attorney’s summation, she reminded the jury of Morgan’s testimony regarding the absence of any plea agreement and went on to bolster his credibility.

The Jenkins court found that the prose-cutorial misconduct in Jenkins’ trial so infected the trial with unfairness as to make the resulting conviction a violation a denial of due process.

| ,The instant case presents similar issues. While we cannot determine the precise details of the recantations, we know, through the girls’ testimony, that statements previously withdrawn were subsequently used at trial to convict the appellant. M.M. was called as a witness for the sole purpose of eliciting knowingly false statements for the jury.

This level of apparent prosecutorial misconduct cannot be overlooked when reviewing the correctness of the appellant’s conviction. The State further prejudiced his right to a fair trial during closing arguments by placing its credibility behind the witness’s statements. This is evidenced by the following statements: “[y]ou saw Emily take the stand ... she told you exactly what happened. She didn’t lie. She didn’t lie.” The assistant district attorney essentially vouched for the girl’s credibility with full knowledge that her testimony was based on recanted statements. While an attorney should vigorously argue their case, they must not do so by knowingly using false information. See, Jenkins, supra and Agurs, supra.

Analysis of the Evidence

Upon careful review of M.M.’s testimony in its entirety, this writer was deeply troubled by the fact that she rarely testified to anything. Rather, she gave nods while the district court allowed the State to ask leading questions which essentially equated to the State testifying. After M.M. repeatedly claimed she could not remember anything happening, the State was permitted to ask: “[d]o you remember if Danny Gal-indo touched Emily?” M.M. replied with an affirmative nod and was then told to say where. M.M. then replied “[o]n the butt.” However, on cross-examination M.M. admitted that she told the assistant district attorneys that she had not seen Danny touch E.M. and finally conceded that her mother had instructed her on what to say at trial.

|4The girls’ statements and allegations against the appellant are fluid in that they are ever changing. The original story was presented by M.M., who claimed she saw E.M. take off her pants and jump on the bed. Then she said the appellant went into the room and blew a raspberry on E.M.’s butt. We now know this was untrue, but it lead to E.M. being questioned about past behavior. Based on her mother’s testimony E.M. said that “Danny” would touch her on her vagina. This is the statement reported to the police and video taped. However, during E.M.’s interview at Children’s Hospital she adopted M.M.’s version of the story regarding the “raspberry,” a statement she later recants. Additionally, in the taped interview played for the jury, E.M. says that M.M. was running around Danny’s house naked. Inexplicitly, the interviewer does not entertain the validity of that statement but only focuses on the other part of E.M.’s story, where she claimed that the appellant would just pull her pants down, touch her and leave the room. Where does fact separate from fiction substantially enough to support a conviction?

The test for determining the sufficiency of evidence to support a conviction was set forth in State v. Armstead, 2002-1030, pp. 5-6 (La.App. 4 Cir. 11/6/02), 832 So.2d 389, 393:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of ah the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757.

IsThe State’s case against Danny Galindo is woefully deficient. There is no physical evidence nor are there any eyewitnesses. The State called M.M as a witness, even though the State knew she had not witnessed anything. Furthermore, E.M.’s testimony must be carefully scrutinized, especially in light of the prosecuting attorney bolstering her testimony regarding the raspberry in an effort to make recanted statements appear behevable. But most importantly, she too testified that her mother told her what to say. The State offers little more than potentially perjured testimony to send the appellant to prison for six years without benefit of probation, parole or suspension of sentence. Clearly this is a case that warrants the reviewing court to impinge upon the fact finder’s discretion in order to guarantee the fundamental protection of due process of law.

After reviewing the evidence in the light most favorable to the prosecution, I disagree with the majority’s opinion, affirming the appellant’s conviction. Danny Galindo’s right to a fair trial was unequivocally violated. Given the despicable nature of the alleged crime and the age of the alleged victim, it is easy to see how emotion, not fact could influence the jurors. However, I disagree that any reasonable person could conclude that the evidence proved beyond a reasonable doubt that the appellant committed the crime of sexual battery. Accordingly, I would reverse the conviction and vacate the sentence.

      . M.M.’s testimony at trial was very vague as to any details, and she indicated that she both saw an incident and that E.M. told her about it. However, when asked why she told her mother abut the defendant, she said it was because she did not want her friend to "get hurt.”

      . The initial sentence, imposed on August 19, 2005, did not deny benefits. On August 26, 2005, at the time the court denied the motion to reconsider sentence, the court amended the sentence to deny benefits, a mandatory prohibition under the statute. See La. R.S. 14:43.1(C). It should be noted that La. R.S. 14:43.1(0) was subsequently amended to provide that, if the victim is under the age of thirteen years and the offender over seventeen, the mandatory minimum sentence is twenty-five years without benefits; the maximum is life imprisonment. Under the present provision, the appellant would be subject to this greater penalty.

      . The court explained that, during trial, it could hear but not see the video as it was played for the jury.


source: Caselaw Access Project

author: Judge LEON A. CANNIZZARO, JR.

license: Public Domain

text:
    Frederick JOHNSON v. TATE & LYLE NORTH AMERICAN SUGARS/DOMINO SUGAR.
    No. 2007-CA-0392.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 2007.

      John B. Fox, David Aden, John Fox & Associates, L.L.C., New Orleans, LA, for Appellee, Frederick Johnson.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Thomas B. Delsa, Raba-lais, Unland <& Lorio, Covington, LA, for Appellant, Tate & Lyle North America Sugars/Domino Sugar, Inc.
    Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.
   Judge LEON A. CANNIZZARO, JR.

11 This case involves an appeal from the decision of a workers’ compensation judge. The workers’ compensation claimant, Fredrick Johnson, was awarded the payment of certain medical bills and reimbursement for the mileage that he drove to appointments with one of his physicians and to obtain prescriptions from a pharmacy. Mr. Johnson’s former employer, Tate & Lyle North American Sugars/Domino Sugar, Inc. (the “Employer”), is now appealing the award for mileage, claiming that Mr. Johnson willfully misrepresented the number of miles that he drove.

FACTS AND PROCEDURAL HISTORY

Mr. Johnson worked for the Employer for approximately nineteen years as a pipe fitter. In July of 1993, he injured his back on the job. Mr. Johnson underwent several surgical procedures, and following the most recent surgical procedure, his physician, Donald Dietze, Jr., M.D., recommended that he participate in physical therapy in the form of aquatherapy. A utilization review company for the Employer’s workers’ compensation insurer denied the claim. Notice of the denial [ 2was sent to Mr. Johnson, his attorney, and Dr. Dietze. No appeal from the denial was ever taken.

Mr. Johnson filed a disputed claim for compensation regarding the denial of the aquatherapy. Subsequently, he filed an amendment to the claim to include a claim for the payment of unpaid medical bills and for reimbursement for the mileage that he had driven to the office of his psychiatrist, John R. Macgregor, M.D., and to a pharmacy, Majoria Drugs, to have certain prescriptions filled. He also sought to recover attorney’s fees in connection with his claims.

Mr. Johnson requested mileage reimbursement for 140 roundtrips to Dr. Macgregor, each consisting of 37 miles. He also requested reimbursement for the $0.40 toll that he had to pay to cross the bridge over the Mississippi River each time that he visited Dr. Maegregor. Further, he requested reimbursement for sixteen roundtrips to Majoria Drugs, each consisting of 8 miles. Mr. Johnson was sent a check for $1,739.20 as reimbursement for the mileage and the tolls. He testified at the workers’ compensation hearing, however, that he did not know why he received the check and had, therefore, never cashed it. He stated that when he received the check, he received no explanation stating what the check covered.

At the hearing Mr. Johnson testified regarding the mileage he claimed to have driven to visit Dr. Maegregor, and he said that he based the amount of the roundtrip mileage on his car’s odometer readings for several trips to the doctor’s office. He had also made the roundtrip drive to Dr. Macgregor’s office a few days before the hearing “just to double check mileage.” He also described in detail the | ¡¡route that he took in going to Dr. Macgregor’s office. He testified that the roundtrip mileage was “36.4, 36.5, in that neighborhood.” He further stated that in one of his cars, the mileage shown on the odometer was 37 miles.

Mr. Johnson also testified regarding the mileage to Majoria Drugs. He said that he had driven the route from his home to the drugstore just a few days ago, just as he had driven the route from his home to Dr. Macgregor’s office. He also described the route to the drugstore in detail. The mileage for the roundtrip to the drugstore was 8.4 miles.

Mr. Johnson was questioned regarding the number of trips that he had made to Dr. Macgregor’s office. He testified that, “It would be twice a week, so its [sic] probably somewhere — 100 and somewhat trips.” In describing how he determined the exact number of roundtrip visits he made to Dr. Macgregor’s office, he testified that Dr. Maegregor “gave me a paper.” He stated that “I go by the paper he gave me.” When he was questioned regarding the number of roundtrips that he made to the drugstore to have prescriptions filled, Mr. Johnson testified that “I keep track of all that with the: prescriptions that I have.”

Mr. Johnson also testified regarding the prescriptions that he had obtained for which he had not been reimbursed. He explained that he had given receipts to the workers’ compensation insurer.

With respect to the denial of the aquath-erapy that had been prescribed by Dr. Dietze, Mr. Johnson’s neurosurgeon, Mr. Johnson testified that he received a letter | ¿denying the aquatherapy. He further testified that he did not, however, follow the appeal procedure that was set forth in the letter.

After Mr. Johnson testified at the workers’ compensation hearing, Yvonne Gaudet testified. Ms.. Gaudet was the senior claims representative for the Employer’s workers’ compensation carrier. She testified that she handled all of the workers’ compensation claims that were filed by Mr. Johnson. She verified that the denial of the aquatherapy was never appealed through the appropriate utilization review process. She also explained that Mr. Johnson had been reimbursed for the roundtrip mileage to Dr. Macgregor’s office based on a roundtrip of 34.5 miles, which was based on a calculation made by MapQuest, a website that calculates mileage. Mr. Johnson was also reimbursed for roundtrip mileage of 7.1 miles for his trips to Majoria Drugs, and, again, the number of miles per roundtrip was based on a MapQuest calculation.

When questioned about the medications for which Mr. Johnson was not reimbursed, Ms. Gaudet confirmed that the workers’ compensation carrier had not paid for the prescriptions. She farther confirmed Mr. Johnson’s statement that he never received an explanation of what was covered by the $1,739.20 check that he received -for mileage reimbursement. She testified that the insurer was not required to supply that information.

Ms. Gaudet further testified that she had received a report from an investigator hired by the workers’ compensation carrier to calculate the roundtrip mileage to Dr. Macgregor’s office and the roundtrip mileage to Majoria Drugs. |fiShe stated that the report indicated that the mileage amounts that Mr. Johnson had submitted exceeded the actual mileage.

The Employer’s attorney also cross-examined Mr. Johnson regarding the mileage reimbursement. He asked Mr. Johnson whether he had claimed mileage reimbursement for dates on which Dr. Macgre-gor’s records indicated that Mr. Johnson had missed his scheduled appointments. Mr. Johnson testified that he had based his mileage reimbursement amounts on the records that Dr. Macgregor had given him.

The workers’ compensation judge rendered judgment ordering the Employer to pay for mileage of 37 miles per roundtrip for 114 visits to Dr. Macgregor’s office. The Employer was further ordered to pay for mileage of 7.4 miles per roundtrip for 17 trips to Majoria Drugs. Reimbursement for tolls of $0.40 for each of the 114 trips to Dr. Macgregor’s office was also ordered. All unpaid medical bills were required to be paid, and the Employer was also ordered to pay for the prescriptions for which it had not paid. The Employer was granted a credit in the amount of $1,739.20, which was the amount of the check that had been sent to Mr. Johnson without an explanation of what it covered. The claim for aquatherapy was found to be premature, because Mr. Johnson had not yet appealed the denial of the aquatherapy through the applicable administrative process. Each party was required to bear its own costs.

Finally, the workers’ compensation judge expressly found that Mr. Johnson had not violated La. R.S. 23:1208. That statute provides for, among other things, | ^penalties for willfully making a false statement or representation for the purpose of obtaining workers’ compensation benefits.

DISCUSSION

Standard of Review

In Freeman v. Poulan/Weed Eater, 93-1530 (La.App. 4 Cir. 1/14/94), 630 So.2d 733, the Louisiana Supreme Court discussed the standard of review to be used in workers’ compensation cases as follows:

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in [sic] absence of “manifest error” or unless it is “clearly wrong.” The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.

93-1530, 630 So.2d at 737-38 (citations omitted). See also Davis v. Sheraton Operating Corp., 97-2784, p. 2 (La.App. 4 Cir. 5/20/98), 713 So.2d 814, 815.

Assignment of Error

The Employer asserts a single assignment of error on appeal. The Employer contends that the workers’ compensation judge erred in failing to find that Mr. Johnson committed fraud by willfully misrepresenting the mileage to and from his doctor visits and that Mr. Johnson made the misrepresentation for the purpose of obtaining workers’ compensation benefits to which he was not entitled. The Employer further claims that the workers’ compensation judge should have declared that Mr. Johnson’s entire claim for workers compensation was forfeited 17under La. R.S. 23:1208 and should have ordered Mr. Johnson to make restitution of all workers’ compensation benefits received after he misrepresented the mileage.

La. R.S. 23:1208 provides in relevant part as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter [on workers’ compensation], either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for ... any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars ... and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by [sic] workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

While it is clear that Mr. Johnson made a claim for mileage reimbursement for approximately sixteen roundtrips to Dr. Macgregor’s office on dates that Dr. Macgregor’s records indicate that Mr. Johnson missed his appointment, the issue is whether this misrepresentation was willful. The workers’ compensation judge clearly thought that the misrepresentation was not willful, because she specifically found that Mr. Johnson had not violated La. R.S. 23:1208.

Our review of the record indicates that the workers’ compensation judge was correct in her finding. Mr. Johnson testified that Dr. Macgregor had given him a “paper” showing all of the visits that he had made to Dr. Macgregor. This “paper” |swas not available at the hearing before the workers’ compensation judge. What was available and entered into evidence were the records of Dr. Macgregor, including billing statements in which the dates that Mr. Johnson had appointments were listed. Beside some of these dates were asterisks indicating that Mr. Johnson had missed the scheduled appointment. Nevertheless, Dr. Macgregor charged for all scheduled visits, even those that Mr. Johnson missed. It is a reasonable conclusion from the evidence and the record that the workers’ compensation judge utilized the billing statement and the testimony of Mr. Johnson in finding that Mr. Johnson did not willfully make a false statement or misrepresent his workers’ compensation claim.

If Mr. Johnson intended to misrepresent the mileage reimbursement claim for his appointments with Dr. Macgregor, it is unlikely that he would have bothered to obtain a “paper” from Dr. Macgregor. Mr. Johnson did not know the exact number of visits he had made to Dr. Maegre-gor, and he wanted to verify the number of visits by obtaining that information directly from Dr; Macgregor’s office. This is not something with which he would have been concerned had his intent been to willfully defraud his Employer or its insurer.

Mr. Johnson offered to revise the mileage reimbursement claim when he was confronted with evidence that there were errors in the claim that he had made. It seems unlikely that Mr. Johnson was willfully trying to deceive the Employer or its insurer with respect to the mileage calculations, because Mr. Johnson did not cash the reimbursement check that was sent to him. Instead, he testified that he did not cash the check, because he did not know why he had received it. Had Mr. Johnson |awillfuIIy misstated the mileage reimbursement amounts, it would seem that he would have immediately cashed any check that he received from the workers’ compensation insurer. Further, a few days before the workers’ compensation hearing, Mr. Johnson drove from his home to Dr. Macgregor’s office and from his home to Majoria Drugs to verify the mileage for which he claimed reimbursement. This does not seem to be something that he would have bothered to do, if he were willfully misstating the mileage.

The record contains ample evidence from which the workers’ compensation judge could have concluded that Mr. Johnson did not willfully misstate the amount of mileage for which he claimed reimbursement. Additionally, the workers’ compensation judge was able to evaluate the credibility of Mr. Johnson’s live testimony, and she obviously found him to be credible. We find no error in the ruling of the workers’ compensation judge on the issue of whether Mr. Johnson made a willful misrepresentation designed to obtain workers’ compensation benefits to which he was not entitled. This assignment of error is without merit.

DECREE

The findings of the workers’ compensation judge were neither manifestly erroneous nor clearly wrong. The judgment of the workers’ compensation judge is hereby affirmed.

AFFIRMED.

      . The record reflects that Mr. Johnson had numerous visits to Dr. Macgregor over a nineteen-month period.


author: AMY, Judge. SAUNDERS, J.,

text:
    Keith A. MILLER v. Ricky ELLENDER, d/b/a Ellender’s Portable Buildings.
    No. 07-99.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 2007.

      Matthew W. Tierney, Tierney and Smiley, LLC, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana United Businesses Association Self Insurers Fund.
    Claude P. Devall, Cox, Cox, Filo & Camel, LLP, Lake Charles, LA, for Defendants/Appellees, Ricky Ellender, d/b/a Ellender’s Portable Buildings Dwayne El-lender.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY and BILLY H. EZELL, Judges.
   AMY, Judge.

| j Louisiana United Businesses Association Self Insured Fund (LUBA) appeals the workers’ compensation judge’s finding that she lacked subject matter jurisdiction over claims stemming from a workers’ compensation agreement between LUBA and its member. For the following reasons, we reverse and remand.

Factual and Procedural Background

The record indicates that Keith A. Miller (Miller) filed a disputed claim for compensation alleging that he was injured while in the course and scope of his employment with Ricky Ellender d/b/a Ellen-der’s Portable Buildings (Ellender). He subsequently filed an amended disputed claim adding LUBA, the workers’ compensation self-insured fund for Ellender, as a defendant. LUBA responded by filing a petition for declaratory judgment, in which it alleged that at the time of his accidents, Miller was not employed with Ellender. As such, LUBA contended that the workers’ compensation agreement between it and Ellender did not provide coverage. This matter was consolidated with the workers’ compensation suit filed by Miller.

Ellender filed an answer stating that at the time of his accidents, Miller was employed by him to work on the home of his brother, Dwayne Ellender. Ellender, therefore, argued that “there is coverage under the LUBA contract.” In a supplemental and amending petition, LUBA alleged that Ellender “violated the provisions of [La.R.SJ 23:1208 by willfully making false statements and | ¡.representations with regard to the employment status of the claimant herein, Keith A. Miller.” LUBA also added Dwayne Ellender as a defendant, asserting that he “violated the provisions of [La. R.S.] 23:1208(B) by aiding and abetting Ricky Ellender d/b/a Ellender’s Portable Buildings, directly and/or indirectly, in making false statements and/or representations.”

The record shows that prior to trial, a settlement agreement was reached in which LUBA paid Miller $10,000.00, and he released all parties. LUBA reserved its right to assert its coverage issue. Trial was set for September 21, 2006. Before the submission of any evidence, the workers’ compensation judge held that since this was an allegation of insurance fraud, subject matter jurisdiction was lacking. LUBA appeals, asserting the following as error:

1. The trial court committed legal error by finding, sua sponte, that it lacked the requisite subject matter jurisdiction over the claims of coverage, indemnification and overpayment brought by the Appellant herein;
2. The trial court committed legal error in finding, sua sponte, that it lacked the requisite subject matter jurisdiction over claims brought by the Appellant pursuant to LSA-R.S. 23:1208; and
3. The trial court committed legal error in finding, sua sponte, that it lacked the requisite subject matter jurisdiction over claims brought by the Appellant pursuant to LSA-R.S. 23:1172.2.

Discussion

Subject Matter Jurisdiction

LUBA argues that the matter arises under the Workers’ Compensation Act insofar as its claims involve La.R.S. 23:1208 and La.R.S. 23:1172.2. Therefore, it Largues that the Office of Workers’ Compensation had the requisite subject matter jurisdiction.

In ruling that subject matter jurisdiction was lacking, the workers’ compensation judge explained:

The Court finds that if it were a [La. R.S. 23:]1208 [violation], you would have to link the fraud to the claimant. In this case, the claimant’s case was settled. At first glance to this Court, it appears to be a case of allegations of insurance fraud. It appears to be that there was a lie in not complying in their coverage application, an alleged lie of not complying in that coverage application. This does appear to be more an allegation of insurance fraud than 1208 fraud; therefore, I find that I do not have subject matter jurisdiction.

Louisiana Constitution Article 5, § 16 provides: “Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.” With regard |4to the claims in which the workers’ compensation judge is vested with original, exclusive jurisdiction, La.R.S. 23:1310.3 provides:

E. Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for. indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

In Beutler England Chiropractic Clinic v. Mermentau Rice, 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, this court decided whether the Office of Workers’ Compensation had jurisdiction over a healthcare provider’s claim. At the outset, we noted the jurisdiction granted to district courts in Article 5, Section 16 of the Louisiana Constitution. We also reiterated our holding in Cajun Bag & Supply v. Baptiste, 94-1218 (La.App. 3 Cir. 3/1/95), 651 So.2d 943, that pursuant to La.R.S. 23:1310.3(E), the Office of Workers’ Compensation has original jurisdiction over claims that arise out of the Workers’ Compensation Act, but not those that are simply related to workers’ compensation. Id.

Furthermore, we noted in Beutler that the amendment to La.R.S. 23:1310.3(E), which became effective on August 15, 2005 and has retroactive effect, outlined the types of claims or disputes in which the workers’ compensation judge will be vested with original, exclusive jurisdiction. Specifically, La.R.S. 23:1310.3(E) gives the workers’ compensation judge jurisdiction over “workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes” as well as | ./‘cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution^]” Having found that subject matter jurisdiction existed, we held that the employee’s settlement of his case did not divest the Office of Workers’ Compensation of jurisdiction insofar as La.R.S. 23:1310.3(E) “statutorily confers jurisdiction over the claim asserted by [the healthcare provider], which is separate and independent from any of [the employee’s] claims under the Louisiana Workers’ Compensation Act.” Beutler 931 So.2d at 558.

Here, LUBA’s claims arise out of the Workers’ Compensation Act insofar as La.R.S. 23:1310.3(E) confers original, exclusive jurisdiction upon the Office of Workers’ Compensation to adjudicate the contractual dispute relating to the claims asserted by LUBA, ie., that Ellender and Dwayne Ellender made false statements about Miller’s employment status and therefore, the workers’ compensation agreement did not provide coverage. Id. As in Beutler, the settlement of the employee’s (Miller’s) claim does not divest the Office of Workers’ Compensation of jurisdiction. Therefore, the workers’ compensation judge erred in finding that subject matter jurisdiction was lacking.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is reversed, and this case is remanded to the Office of Workers’ Compensation for a trial on the merits. All costs of this appeal are assessed against the defendant, Ricky Ellender d/b/a Ellender’s Portable Buildings.

REVERSED AND REMANDED.

SAUNDERS, J., dissents and assigns written reasons.

EZELL, J., dissents and assigns reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|tI respectfully disagree with the majority’s opinion. Counsel for LUBA references Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97), 696 So.2d 73. In his brief, counsel for LUBA dismissed Grant and cited various case law that, to him, meant, “it has been made resoundingly clear that the Office of Workers’ Compensation does in fact have subject matter jurisdiction over claims brought under LSA-R.S. 23:1208.” I wrote Grant and my opinion regarding a workers’ compensation judge having subject matter jurisdiction over La.R.S. 23:1208 fraud claims has not changed.

The majority argues for allowing the workers’ compensation judges to adjudicate the fraud claims brought forth under La.R.S. 23:1208 by referencing the language of La.R.S. 23:1310.3(E). Louisiana Revised Statute 23:1310.3(E) provides the specific jurisdiction of the Office of Workers’ Compensation Administration as follows:

Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination Land recognition of employer credits as provided for in this Chapter, and cross-claims between employers and workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. Concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter. (Emphasis added.)

The majority states in its opinion that “LUBA’s claims arise out of the Workers’ Compensation Act insofar as La.R.S. 23:1310.3 confers original, exclusive jurisdiction upon the Office of Workers’ Compensation to adjudicate the contractual dispute relating to the claims asserted by LUBA, ie., that Ellender and Dwayne El-lender made false statements about Miller’s employment status and, therefore, the workers’ compensation agreement did not provide coverage.”

This court addressed whether a workers’ compensation judge has subject matter jurisdiction over La.R.S. 23:1208 fraud claims in an en banc decision in Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 1/8/03), 848 So.2d 605. The majority opinion in Lanthier, 848 So.2d 605 outlined the argument for allowing workers’ compensation judges subject matter jurisdiction over La.R.S. 23:1208 fraud claims while the dissent written by Judge Thibo-deaux outlined the argument against. I joined in Judge Thibodeaux’s dissent in Lanthier, 848 So.2d 605, and I incorporate his argument in his dissent as my own for affirming the workers’ compensation judge’s finding in the case at bar.

In addition to La.R.S. 23:1208, the workers’ compensation judge also addressed the propriety of a workers’ compensation court’s subject matter jurisdiction in relation to La.R.S. 23:1172.2. I feel that it is clear that the workers’ compensation judge was correct in holding that she did not have subject matter jurisdiction of claims asserted under La.R.S. 23:1172.2.

Article 5 Section 16 of the Louisiana Constitution addresses the original | ¡Jurisdiction of district courts. Article 5 Section 16(A)(2) states, “It [District courts] shall have exclusive original jurisdiction of felony cases.” (Emphasis added).

Louisiana Revised Statute 23:1172.2(D) provides “[w]hoever violates any provision of this Section shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, or fined not more than ten thousand dollars, or both.” (Emphasis added). Louisiana Revised Statute 14:2(A)(4) defines felony as, “any crime for which an offender may be sentenced to death or imprisonment at hard labor.” (Emphasis added).

Clearly, a person who violates La.R.S. 23:1172.2 may be imprisoned with hard labor, and, therefore, a case stemming from La.R.S. 23:1172.2 is a felony case. Inasmuch as all criminal felony jurisdiction must begin in district court and all articles of criminal law and criminal procedure in the Revised Statutes reference the district court of our state, the workers’ compensation judge was assuredly not in error in ruling that she did not have felony jurisdiction.

I am mindful of Lanthier v. Family Dollar Store, 02-2663 (La.11/27/02), 836 So.2d 5. In that case, this court’s judgment declaring La.R.S. 23:1208 unconstitutional was vacated. Our Louisiana Supreme Court was clear in its opinion that an appellate court is not to make a declaration regarding the constitutionality of a statute on its own accord. They based their opinion on the fact that an appellate court making this judgment, “did not have a record on the issue of constitutionality, nor did it have the benefit of briefing and argument on this issue by the parties.” Id at 7.

While my opinion regarding the lack of subject matter jurisdiction of workers’ compensation courts is based, in part, upon constitutional provisions, I in no way intend to pass judgment on the constitutionality of La.R.S. 23:1208, nor La.R.S. 1^23:1172.2. I feel that the conflict between our workers’ compensation statutes versus our criminal statutes and constitutional provisions necessitate a finding that the workers’ compensation judge was correct in asserting that she lacked the power to adjudicate the issues placed before her. Accordingly, I would vote to affirm the workers’ compensation judge’s ruling.

EZELL, J. dissenting.

hi can see where the majority is correct as to the claims under La.R.S. 23:1208 vesting original jurisdiction to the Office of Workers’ Compensation. On the other hand, I do not feel that the Office of Workers’ Compensation can under Article 5 § 15(A)(2) hear claims that are a felony under the laws of our State.

I have a hard time allowing people who are not elected to the bench make decisions on matters such as these and do not want to extend the jurisdiction any further than it has already reached.

I must respectfully disagree with the majority opinion on this issue.

      . According to the disputed claim form, Miller alleged that he was injured on two separate occasions.

      . For the companion case to this appeal, see Louisiana United Businesses Self Insurers Fund v. Ricky Ellender d/b/a Ellender’s Portable Bldgs., et al., 07-100 (La.App. 3 Cir. 10/17/07), 968 So.2d 1132.

      . We note that throughout the record, the defendant's first name is spelled as both “Dwayne” and "Dwaine.” For purposes of this appeal, we use "Dwayne” as reflected on the record's cover.

      . Louisiana Revised Statutes 23:1208 provides in pertinent part:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
      B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.

      . Louisiana Revised Statutes 23:1172.2 provides in pertinent part:
      A. It shall be unlawful for any person to knowingly make any false, fraudulent, or misleading oral or written statement, or to knowingly omit or conceal material information for the purpose of obtaining workers’ compensation coverage, or for the purpose of avoiding, delaying, or diminishing the amount of payment of any workers’ compensation premiums.
      B. It shall be unlawful for any person to knowingly misrepresent or conceal payroll, classification of workers, or information regarding any employer’s loss history which would be material to the computation and application of an experience rating modification factor for the purpose of avoiding or diminishing the amount of payment of any workers' compensation premiums.
      C. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet any other person, or directly or indirectly counsel any other person, to engage in conduct in violation of this Section.


author: AMY, Judge. SAUNDERS, J., EZELL, J.

text:
    LOUISIANA UNITED BUSINESSES ASSOCIATION SELF INSURERS FUND v. Ricky ELLENDER, d/b/a Ellender’s Portable Buildings, et al.
    No. 07-100.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 2007.
    Matthew W. Tierney, Tierney and Smiley, LLC, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana United Businesses Association Self Insurers Fund.
    Claude P. Devall, Cox, Cox, Filo & Camel, LLP, Lake Charles, LA, for Defendants/Appellees, Ricky Ellender, d/b/a Ellender’s Portable Buildings Dwayne El-lender.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY and BILLY H. EZELL, Judges.
   AMY, Judge.

It For disposition of this consolidated matter, see Keith A. Miller v. Ricky Ellender d/b/a Ellender’s Portable Bldgs., 07-99 (La.App. 3 Cir. 10/17/07), 968 So.2d 1126.

REVERSED AND REMANDED.

SAUNDERS, J., dissents and assigns written reasons.

EZELL, J., dissents and assigns reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

hi respectfully disagree with the majority’s opinion. Counsel for LUBA references Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97), 696 So.2d 73. In his brief, counsel for LUBA dismissed Grant and cited various case law that, to him, meant, “it has been made resoundingly clear that the Office of Workers’ Compensation does in fact have subject matter jurisdiction over claims brought under LSA-R.S. 23:1208.” I wrote Grant and my opinion regarding a workers’ compensation judge having subject matter jurisdiction over La.R.S. 23:1208 fraud claims has not changed.

The majority argues for allowing the workers’ compensation judges to adjudicate the fraud claims brought forth under La.R.S. 23:1208 by referencing the language of La.R.S. 23:1310.3(E). Louisiana Revised Statute 23:1310.3(E) provides the specific jurisdiction of the Office of Workers’ Compensation Administration as follows:

Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination |2and recognition of employer credits as provided for in this Chapter, and cross-claims between employers and workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. Concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter. (Emphasis added.)

The majority states in its opinion that “LUBA’s claims arise out of the Workers’ Compensation Act insofar as La.R.S. 23:1310.3 confers original, exclusive jurisdiction upon the Office of Workers’ Compensation to adjudicate the contractual dispute relating to the claims asserted by LUBA, i.e., that Ellender and Dwayne El-lender made false statements about Miller’s employment status and, therefore, the workers’ compensation agreement did not provide coverage.”

This court addressed whether a workers’ compensation judge has subject matter jurisdiction over La.R.S. 23:1208 fraud claims in an en banc decision in Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 1/8/03), 848 So.2d 605. The majority opinion in Lanthier, 848 So.2d 605 outlined the argument for allowing workers’ compensation judges subject matter jurisdiction over La.R.S. 23:1208 fraud claims while the dissent written by Judge Thibo-deaux outlined the argument against. I joined in Judge Thibodeaux’s dissent in Lanthier, 848 So.2d 605, and I incorporate his argument in his dissent as my own for affirming the workers’ compensation judge’s finding in the case at bar.

In addition to La.R.S. 23:1208, the workers’ compensation judge also addressed the propriety of a workers’ compensation court’s subject matter jurisdiction in relation to La.R.S. 23:1172.2. I feel that it is clear that the workers’ compensation judge was correct in holding that she did not have subject matter jurisdiction of claims asserted under La.R.S. 23:1172.2.

Article 5 Section 16 of the Louisiana Constitution addresses the original | ¡jurisdiction of district courts. Article 5 Section 16(A)(2) states, “It [District courts] shall have exclusive original jurisdiction of felony cases. ” (Emphasis added).

Louisiana Revised Statute 23:1172.2(D) provides “[w]hoever violates any provision of this Section shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, or fined not more than ten thousand dollars, or both.” (Emphasis added). Louisiana Revised Statute 14:2(A)(4) defines felony as, “any crime for which an offender may be sentenced to death or imprisonment at hard labor.” (Emphasis added).

Clearly, a person who violates La.R.S. 23:1172.2 may be imprisoned with hard labor, and, therefore, a case stemming from La.R.S. 23:1172.2 is a felony case. Inasmuch as all criminal felony jurisdiction must begin in district court and all articles of criminal law and criminal procedure in the Revised Statutes reference the district court of our state, the workers’ compensation judge was assuredly not in error in ruling that she did not have felony jurisdiction.

I am mindful of Lanthier v. Family Dollar Store, 02-2663 (La.11/27/02), 836 So.2d 5. In that case, this court’s judgment declaring La.R.S. 23:1208 unconstitutional was vacated. Our Louisiana Supreme Court was clear in its opinion that an appellate court is not to make a declaration regarding the constitutionality of a statute on its own accord. They based their opinion on the fact that an appellate court making this judgment, “did not have a record on the issue of constitutionality, nor did it have the benefit of briefing and argument on this issue by the parties.” Id. at 7.

While my opinion regarding the lack of subject matter jurisdiction of workers’ compensation courts is based, in part, upon constitutional provisions, I in no way intend to pass judgment on the constitutionality of La.R.S. 23:1208, nor La.R.S. |423:1172.2. I feel that the conflict between our workers’ compensation statutes versus our criminal statutes and constitutional provisions necessitate a finding that the workers’ compensation judge was correct in asserting that she lacked the power to adjudicate the issues placed before her. Accordingly, I would vote to affirm the workers’ compensation judge’s ruling.

EZELL, J.

dissenting.

hi can see where the majority is correct as to the claims under La.R.S. 23:1208 vesting original jurisdiction to the Office of Workers’ Compensation. On the other hand, I do not feel that the Office of Workers’ Compensation can under Article 5 § 16(A)(2) hear claims that are a felony under the laws of our State.

I have a hard time allowing people who are not elected to the bench make decisions on matters such as these and do not want to extend the jurisdiction any further than it has already reached.

I must respectfully disagree with the majority opinion on this issue.