author: EZELL, Judge.

text:
    Leeanna VANDERWATER v. Matthew R. LEMMONS, et al.
    No. CA 06-267.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Thomas Overton Wells, Attorney at Law, Alexandria, LA, for PlaintiffiAppel-lee, Leeanna Vanderwater.
    Paul Mantle Lafleur, Hughes <& Lafleur, Alexandria, LA,, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

11 State Farm Mutual Automobile Insurance Company appeals a general damage award of $27,500.00 to Leeanna Vanderwa-ter. Ms. Vanderwater was injured when State Farm’s insured, Matthew Lemmons, rear-ended the vehicle she was a passenger in while it was stopped waiting to make a left turn. State Farm also appeals the award of medical expenses incurred by Ms. Vanderwater in seeing Dr. Wayne J. Naimoli.

FACTS

This appeal concerns an accident that occurred on February 27, 2004. Previously, Ms. Vanderwater had been involved in another accident in December 2003. As a result of the 2003 accident, Ms. Vanderwa-ter suffered back and neck injuries. Ms. Vanderwater claimed that the 2004 accident aggravated her back and neck injuries and that she now experiences numbness in both of her legs.

Trial in this matter was originally set for March 11, ,2005. Ms, Vanderwater was granted a continuance so she could obtain some medical records from a neurologist that she had recently seen in Kentucky. In May 2004, after the 2004 accident, Ms. Vanderwater got married and moved to Kentucky. j

The case went to trial on October 21, 2005. Following the hearing, the trial court ruled that Ms. Vanderwater “was credible in all aspects of her testimony.” It found that the neck and back problems from the previous accident had resolved and were aggravated by the 2004 accident. The court awarded general damages in the amount of $27,500.00 and medical expenses in the amount of $5,547.32.

State Farm appealed the judgment. It argues that the award of general damages is too high. It further disputes the award of $1,153.00 in medical expenses incurred by Ms. Vanderwater in seeing Dr. Wayne Naimoli.

| ¿DAMAGES

State Farm initially claims that the trial court awarded excessive damages. State Farm argues that an award of $27,500.00 for an aggravation of Ms. Van-derwater’s previous injuries is not appropriate.

In Andrus v. State Farm Mutual Automobile Insurance Company, 95-801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210 (citations omitted), the supreme court stated:

In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Only if the reviewing court determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion.
Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

We further note that “[a] [tort-feasor] is responsible for injuries caused by his negligence, even if the extent of the injury is an aggravation of a pre-existing injury or condition.” Menard v. Federated Mut. Ins. Co., 05-85, p. 1 (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 748, writ denied, 05-1925 (La.3/10/06), 925 So.2d 506.

Ms. Vanderwater was treated by Dr. Gerald Leglue following her 2003 accident. At that time she suffered with neck pain and lower back pain. On the day of the 2004 accident, Ms. Vanderwater was seen by the physical therapist. She was still experiencing pain in the neck and back region, but it was better.

On the evening of the 2004 accident, Ms. Vanderwater was' treated at St. Francis Cabrini Hospital in Alexandria. She reported that she had a flare-up of pain Lin her neck and back, the same area of her previous injury.

Ms. Vanderwater returned to see Dr. Leglue on March 2, 2004. She reported that she was feeling better until this car accident. As a result of the 2004 accident, Ms. Vanderwater stated that the pain “got really bad.” She described it as non-stop pain. She also reported that she had noticed clumsiness in her legs and feet at that time.

Dr. Leglue’s March 11, 2004 note indicates that Ms. Vanderwater reported worsening of the symptoms that she suffered prior to this accident. She continued to note intermittent left upper extremity paresthiesias as well as low back pain, neck pain, and headaches. He diagnosed her with acute cervical strain, muscle contraction headaches, lumbar facet joint sprain, and possible lumbar strain. He placed her on Vioxx, the same medication she was taking previously, as well as Vico-din and prescribed a course of physical therapy.

On March 16, 2004, Ms. Vanderwater reported to the physical therapist that she suffered numbness off and on in the right anterior thigh. She indicated increased pain levels compared to the visit before the accident occurred. As of March 30, Ms. Vanderwater did report that she was feeling better. Her pain had decreased but there was still numbness off and on in the right thigh. She reported the same numbness to the physical therapist on April 4, 2004.

Obviously, Ms. Vanderwater did not seek any treatment following her move to Kentucky until she went to see Dr. Naimo-li in May and June of 2005 for the numbness in her legs. Dr. Naimoli conducted some tests which did not indicate a problem. Dr. Naimoli did recommend an MRI which had not been performed because Mrs. Vanderwater stated that she did not have the money to pay for it.

14At trial, Ms. Vanderwater testified that her old injuries worsened with the 2004 accident. She also stated that both her legs went numb. Ms. Vanderwater explained that her neck and back continue to hurt and there is pain in her legs every day. Ms. Vanderwater stated that the condition has emotionally disturbed her and affects her ability to participate in some activities with her new husband.

After carefully reviewing the record, we find that the trial court did not abuse its discretion in awarding Ms. Vanderwater $27,500.00 in general damages. We, therefore, affirm the award of general damages.

MEDICAL EXPENSES

State Farm disagrees with the award of medical expenses incurred by Ms. Vander-water in seeing Dr. Naimoli. It claims that there is no evidence that these charges are related to the 2004 accident.

“[W]hen a plaintiff alleges that medical expenses were incurred ‘and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment.’ ” Simon v. Lacoste, 05-550, p, 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102, 1104 (quoting Este’ v. State Farm Ins. Co., 96-99, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857).

The medical records supports Ms. Vanderwater’s claim that she began experiencing numbness, at least in her right leg. At trial she testified that she indicated to Dr. Leglue that she had numbness in her legs following this accident. The trial court found Ms. Vanderwater to be credible and obviously believed that she experienced numbness in her legs which needed further exploration. We find no error in the award of $1,153.00 as medical expenses incurred in seeing Dr. Naimoli.

lRFor the reasons expressed in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to State Farm Mutual Automobile Insurance Company.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. S.D.G.
    No. 06-174.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      James C. Downs, District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, S.D.G.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

11 Following a bench trial, the defendant was found guilty of aggravated rape in violation of La.R.S. 14:42 and aggravated incest in violation of La.R.S. 14:78.1. The defendant filed a motion for new trial, which the trial court denied after conducting a hearing. For the aggravated rape conviction, the defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He was sentenced to twenty years at hard labor for the aggravated incest charge. The trial court gave the defendant credit for time served and ordered the sentences to run concurrently. The defendant appeals, arguing insufficiency of the evidence and excessive sentence. For the following reasons, the defendant’s convictions are affirmed, his sentences are affirmed as amended, and the matter is remanded with instructions.

Factual and Procedural Background

The record indicates that C.G. and D.G. are married and have a son, J.G. C.G. and D.G. lived in Deville, Louisiana, Rapides Parish, in a trailer located on the property of C.G.’s parents. C.G.’s brothers, S.D.G., N., and J., resided in their parents’ home. According to J.G., in November 2000, he was left alone with C.G.’s brothers while C.G. and C.G.’s parents went to the hospital where D.G. was having a baby. J.G. testified that he and S.D.G. were alone in S.D.G.’s room and that S.D.G. was sitting on the floor and J.G. was sitting on his lap. He testified that S.D.G. pulled his pants down and “stuck his wee-wee in my butt.” He stated that he was three years old at the time and that this had happened three times.

|2D.G. testified that when she went to the hospital to deliver J.G.’s sister in November 2000, J.G. stayed with S.D.G, N., and J. D.G. testified that she was discharged from the hospital three days later and subsequently returned because of complications. She further testified that: “When I was in the hospital he was crying and he didn’t want to go back with them and he wanted to stay with me. I didn’t know what was going on and they told me it was a toothache, that he had a toothache.” According to D.G., when she returned home, J.G. “wasn’t himself’ and she didn’t know why. D.G. testified that around this time, J.G.’s teacher informed her that he had blood in his stool.

D.G. asked C.G.’s mother to drive them to the hospital, but C.G.’s mother, a L.P.N., refused, stating that J.G. was only constipated. D.G. testified that when her daughter was approximately six months old, the family moved to Columbia, Louisiana, Caldwell Parish. It was there that D.G. and her father went to the Caldwell Parish Sheriffs Office after J.G. disclosed his sexual abuse to C.G.’s grandmother and D.G.’s father.

D.G. and her father spoke with Officer Becky Ledbetter. According to Officer Ledbetter, D.G. stated that she filed a report with the Rapides Parish Sheriffs Office regarding what happened with J.G. and his uncles. Officer Ledbetter testified that “no one contacted her [D.G.] after she made that initial report, so I set up an appointment with her with Social Services after she told me some of the things the child had said and Social Services got involved and we took the child for an exam.” Officer Ledbetter stated that she was present when James “Pat” Gilfoil of Social Services interviewed J.G. She testified that J.G. stated that S.D.G. and N. “pumped | shim” and he pointed to his rear. Officer Ledbetter further testified that she faxed a copy of the doctor’s report to the officer that D.G. had previously contacted in Rap-ides Parish as the alleged incident happened outside of her jurisdiction.

Dr. Meade O’Boyle, a pediatrician with expertise in child abuse and neglect, testified that she met with J.G., D.G., and D.G.’s father. While J.G. was in another room, Dr. O’Boyle obtained J.G.’s history from D.G. and her father. Dr. O’Boyle testified that although J.G. had speech problems and did not talk too much, he was able to demonstrate that “they had hurt his pee-pee and they had put their penises in his anus. I mean he showed me that as best he could and then I was trying to find out what the names of the people were that did that to him and I asked about [J.] and I asked about [N.]. And then he spontaneously said [S.D.G.] did it too.”

Dr. O’Boyle conducted a physical examination and a sexual abuse examination of J.G. J.G.’s physical examination revealed that he “had a scar at 6:00 to 7:00 o’clock which was red and was — it was healed, but it was still at that red state that you get from a scar.” According to Dr. O’Boyle, J.G.’s anus was swollen and he had poor sphincter tone, which she stated is common in child abuse victims. Based on her findings, Dr. O’Boyle opined that J.G. had been sodomized and that the appearance of J.G.’s scar indicated that the abuse had occurred months or weeks prior to his examination. Dr. O’Boyle testified that she forwarded the reports detailing her findings to the proper authorities.

An investigation ensued, and S.D.G. was charged with aggravated rape in violation of La.R.S. 14:42 and aggravated incest in violation of La.R.S. 14:78.1. |4S.D.G. waived his right to trial by jury, and a bench trial was held on September 21st and 22nd, 2005. The defendant was found guilty as charged; he filed a motion for new trial. Following a hearing, the trial court denied this motion. For the aggravated rape conviction, S.D.G. was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He was sentenced to twenty years at hard labor for the aggravated incest conviction. The trial court gave S.D.G. credit for time served and ordered that his sentences run concurrently. S.D.G. appeals , asserting two assignments of error:

1. The verdict of the trial court was contrary to the law and evidénce, as there was insufficient evidence, when viewed in a light most favorable to the prosecution, to find the Defendant guilty of all charges beyond a reasonable doubt.
2. Defendant’s sentences amount to the needless imposition of pain and suffering and should be considered constitutionally excessive. In addition, the Trial Court erred in failing to rule on Defendant’s Motion to Reconsider Sentence.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent that are in need of correction.

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the |Rdefendant diminution eligibility under La. R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:

We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court,' and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La. Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.

Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.

In addition, the trial court failed to make any finding as ■ to the defendant’s ability to pay the victim’s reasonable cost of counseling pursuant to La.R.S. 14:78.1(E), which provides in pertinent part: “In addition to any sentence imposed under Subsection D, the court shall, after determining the financial resources and future ability of the offender to pay, require the offender, if able, to pay the victim’s reasonable costs of counseling that result from the offense.” As the defendant has receiyed an illegally lenient sentence, we remand the case for the trial court to determine whether the defendant is able to pay “the victim’s reasonable costs of counseling that result from the offense,” if any. If the defendant has sums available and sums are owed, the trial court shall amend the sentence for aggravated incest.

Insufficient Evidence

S.D.G. argues that the “evidence adduced at trial was insufficient to support his convictions [of aggravated rape and aggravated incest] under the Jackson standard | fiof review.” He contends that J.G.’s testimony “was false and the allegations made at trial were done after years of coaching by his grandfather[.]” S.D.G. references testimony given at the hearing on the motion for new trial.

Louisiana Revised Statutes 14:42 provides in pertinent part:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

Louisiana Revised Statutes 14:78.1 provides in part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse....

In Stale v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, this court set forth the standard for insufficiency claims:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light, most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

17After a review of the record, we find that there is sufficient evidence to support the defendant’s convictions of aggravated rape and aggravated incest. At trial, J.G. testified that S.D.G. sexually abused him. Further, the record contains testimony from several witnesses who stated that J.G. revealed that S.D.G. put his penis in his anus. C.G., J.G.’s father, testified that he first became aware of the abuse when he, J.G., and C.G.’s grandmother were on D.G’s father’s porch. C.G. testified that J.G. stated that his brothers “had pumped him and they was [sic] going to take his guts out.” When asked if J.G. identified any particular brother, C.G. responded: “[H]e said [S.D.G.].”

D.G.’s father testified that he first realized that J.G. was having problems when J.G. spent one weekend with him. He recalled that J.G. had a nightmare: “[P]robably 3:00 o’clock in the morning, he starts screaming, kicking and carrying on. Okay, so I pick him up, I reach down and pick him up and pull him to me like this and he’s trying to-—-he’s trying to fight me, trying to break away from me, you know.” D.G.’s father testified that he had never witnessed a child’s nightmare like this before. As such, he opined that “somebody has done something to [the] baby.” D.G.’s father testified that when he questioned J.G. about what happened to him, J.G. revealed that S.D.G. “stuck his wee-wee in his butt.”

J.G.’s preschool teacher, Calline Crawford, testified that she observed J.G. engaging in inappropriate behaviors. She described an incident where J.G. “had the baby [doll] over there and he had the clothes stripped off and he took the little plunger out of the little shot thing from the doctor’s kit and he was poking it into the orifices of the doll.” According to Ms. Crawford, she told J.G. that they did not do that sort of thing at school, to which he responded, “my dad’s brothers do it to me” and that “they had popped him in his behind.” Ms. Crawford also mentioned that J.G. | ¿was unusually rough toward boys when playing, although he was never aggressive toward girls.

Approximately three years after the abuse, J.G. spoke with Connie Ziegler, a forensic interviewer with the Rapides Children’s Advocacy Center. A videotape, cassette tape, and transcript of the interview were entered into evidence. J.G. told Ms. Ziegler that when D.G. was in the hospital delivering his baby sister, he stayed with S.D.G. at S.D.G.’s parents’ home. He stated that he and S.D.G. were alone in S.D.G.’s room; S.D.G. was on the floor and he was sitting in his lap. When Ms. Ziegler suggested that S.D.G. was lying on the floor and J.G. was lying in his lap, J.G. agreed with this statement. In response to whether anyone has ever touched him on his private parts, J.G. initially named S.D.G. and J., but after further questioning, he indicated that S.D.G. had touched him on his butt with his “wee-wee.” J.G. explained that S.D.G. “put it in my butte [sic].” He further explained that it felt rough and that there was blood on the floor.

We note, as the trial court did, that some of the details surrounding J.G.’s sexual abuse varied from time to time. In its reasons for ruling, the trial court stated:

This case, as in most cases dealing with the rape of a young child, has contradictions. An analysis of the evidence and the contradictions found therein is necessary to understanding the findings of this Court in this case. At the time of the alleged incident, the child victim was 4 years of age. At the time of trial, he was 8 years old and in the third grade at school. His statements regarding the sexual abuse spanned over almost 4 years. The Court makes these observations because the age of the child victim, because of the nature of the alleged incident, and the time that has passed since these alleged occurrences happened are significant in my opinion, in considering the contradictions that are found in the testimony presented at trial.
The Court first considers the evidence presented by the victim. At the outset, the Court was mindful that young children such as this victim, can be suggestible and tend to be compliant and follow the lead of the questioner. In the opinion of the Court, the direct examination did | ptend to be suggestible at times, but as to the essential and critical facts surrounding what happened, the victim’s testimony was unprompted in stating [S.D.G.] stuck his wee-wee in my butt. The victim further testified that it occurred in [S.D.G.] room while sitting on the floor in [S.D.G.Js lap. Initially the victim testified that this was the only time that it happened. Later in his testimony, the victim was asked again by the State if this happened this one time or did it happen again. To this question, the victim then said it happened again. He testified that it happened a total of three times in [S.D.G.] room. The victim stated that at the time this happened, his family was living next door to his grandparents[.] His mother was in the hospital having his baby sister. He testified that he stayed with his daddy’s brothers while [his grandparents] were at the hospital with his mother. On cross examination, several contradictions were brought out. First, the victim was confronted with stating in his Advocacy Center interview that [S.D.G.] had raped him 10 times. The victim said that he only said 3 times and then at the suggestion of defense counsel, he said well he forgot that. Secondly, the victim was questioned about stating in the Advocacy interview that [S.D.G.] and he were lying on the floor. And thirdly, he was asked about [S.D.G.] putting his clothes in the clothes dryer when they were removed. In his testimony at trial, the victim stated that [S.D.G.] just pulled them down. Again, at the suggestion of defense counsel, he said that he must have forgotten.
The first discrepancy is the number of times the victim was raped. It is the opinion of the Court that the number of times that the victim says that he was raped is not significant because of his age. A child of 4 or 5 is not detailed [sic] oriented in the opinion of this Court. Additionally, the Court doubts whether the victim could count to 10 at the time that the alleged events'—incidences occurred or at the time of his forensic interview. Remember that at that time of the interview, he was only 5 years old. The contradiction as to the position of the victim and defendant is a more important issue in the mind of the Court. As noted earlier, the victim testified extensively on direct and cross regarding [S.D.G.] and his position on the floor. He testified that [S.D.G.] was sitting on the floor and that he was sitting in [S.D.G.] lap. However, in the Advocacy Center transcript, he responds to questions on this issue by saying that [S.D.G.] was lying on the floor and he was lying on [S.D.G.]. A review of the video tape, along with a transcript of the interview, was revealing to the Court on this issue ... [T]he victim had not said that [S.D.G.] was laying on the floor, it was only when the interviewer asked the question “[S.D.G.] was laying on the floor”, [sic] does the victim respond in the affirmative. Then the interviewer suggests by her question that the victim was lying in [S.D.GJs lap. He never repeats these facts in the interview ... [T]he contradiction found in these facts arises from the suggestive nature of this line of questioning by the forensic interviewer. The victim did not offer the fact that they were lying on the floor in each other—and on each other hnuntil suggested by the interviewer. The Court believes that the victim was merely being compliant in responding in the affirmative.
Lastly, the contradiction as to whether the victim’s clothes were pulled down or taken off and placed in the clothes dryer is not a significant fact in this case, in the opinion of this Court. As stated earlier, the child’s age and the nature of the crime could explain this discrepancy.
... Judging the credibility of a young child such as the victim in this case is tied closely to the issue of competency. Understanding, not age, is the test our courts have applied in determining competency of any witness ... The Court was of the opinion that the child understood the questions posed to him. The Court would note that it did observe the child on several occasions, with expressions of fear during his testimony. Considering all of the factors, it is the opinion of this Court that the victim gave competent testimony in this matter. This Court, in determining the credibility of the victim, also applied the standard that his allegations of sexual abuse be consistent. The Court looked for consistency over time, across people and across methods of communications. Consistency over time means that the victim tells the same story on several different occasions. In applying this test, the Court found that the victim told the story that [S.D.G.] had stuck his wee-wee in his butt to his grandfather [ ], to Connie Ziegler, the Rapides Children’s Advocacy Center interviewer, and to this Court. The time span of these various statements are over a 4 year period. The contradictions in these various statements do not pertain to the core facts that he was anally raped by [S.D.G.]. Consistency across people refers to telling the same story to more than one person. Again, the victim has done that as reflected by the people listed above. And again, he has told the same core facts to these people. Consistency across methods of communications refers to corroborating data from the child’s play and from his non-verbal communications. There was testimony from the victim’s grandfather, his teacher and Dr. O’Boyle regarding such communications.
Therefore, the Court based upon the evidence presented in this matter finds that the State has proven beyond a reasonable doubt that [S.D.G.] did commit the offense of aggravated rape of a child under the age of 13. The evidence that convicts the defendant of the offense of aggravated rape of a child under the age of 13 is the same evidence in the opinion of this Court, that convicts [S.D.G.] of the offense of aggravated incest.

_LyIn State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 457 (quoting State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/28/02), 812 So.2d 646), this court stated that “[t]he testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense.” Additionally, “[t]he credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness.” Id.

Insofar as J.G.’s accounts of the event differed on occasion, the trial court’s ruling reveals that it extensively grappled with the credibility issue and ultimately concluded that the inconsistencies did not relate to the “core facts” of the charge that S.D.G. anally raped him. Instead, the trial court found that J.G.’s reporting of the core facts and central allegation remained the same. The record supports this determination and reveals no abuse of the trial court’s discretion in this regard. Furthermore, several witnesses, including Dr. O’Boyle, corroborated this reporting and that portion of J.G.’s trial testimony implicating S.D.G. Further, the findings from the physical examination performed on J.G. supported his allegation of anal rape. Having examined this evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found S.D.G. guilty of aggravated rape and aggravated incest beyond a reasonable doubt.

Our determination as to the sufficiency of the evidence remains the same despite inconsistencies later revealed during the hearing on the motion for new trial. During the hearing, C.G. testified that his trial testimony was not truthful in that J.G. did not tell him that S.D.G. sexually abused him. According to C.G., J.G. stated that hahe did not know who did this to him. C.G. alleged that D.G’s father pressured both him and J.G. to say that S.D.G. was the perpetrator and threatened to do him bodily harm if C.G. told anyone otherwise and the case was overturned. We further note that J.G. took the stand and stated that S.D.G. “didn’t do nothing.”

The trial court’s ruling on the motion for new trial reveals that it considered this post-trial testimony and that it considered the weight to be afforded the witnesses at that stage of the proceedings. It specifically rejected the testimony of C.G., noting that it “was not material in the decision of the Court following the trial in which.the Court determined that the evidence demonstrated beyond a reasonable doubt that [S.D.G.] was guilty.” As for J.G., the trial court stated that “[ojbserving his demean- or, both the way that he answered the questions and the way that he looked and responded, convinces the Court that he is now or was today in terms of his testimony, confused.” ■ This type of acceptance and/or rejection, in whole or in part, of a witness’s testimony is within the province of the trier of fact. See Schexnaider, 852 So.2d 450. Again, we find no abuse .of discretion in the trial court’s resolution of these credibility issues.

Accordingly, this assignment has no merit.

Excessive Sentence — Aggravated Rape

S.D.G. argues that his “sentences amount to the needless imposition of pain and suffering and should be considered constitutionally . excessive.” S.D.G. contends that the trial court “merely imposed a life sentence because it was statutorily mandated”'without ordering a pre-sentenc-ing investigation report or considering mitigating 11 factors. Furthermore, he argues that the “Trial Court erred in failing to rule on Defendant’s Motion to [RJeconsider Sentence.”

Louisiana Revised Statutes 14:42(D) provides in pertinent part:

(1) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
(2) However, if the victim was under the age of twelve years, as provided by Paragraph (A)(4) of this Section:
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit pf parole, ‘probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.
In State v. Day, 05-287, pp. 4-5 (La.App. 3 Cir. 11/2/05), 915 So.2d 950, 953-54, a panel of this court recently explained that:
This court has set forth the following standard to be used in reviewing excessive sentence claims:
La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad |14sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.
In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has stated:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview , of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Because the district attorney did not seek a capital verdict, the defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. In State v. Price, 40,408, p. 23 (La.App. 2 Cir. 12/16/05), 917 So.2d 1201, 1214 (citations omitted), the court stated that “[t]he decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. The assertion that the mandatory life sentence for aggravated rape is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected.” Accordingly, we find that trial court' did |1snot abuse its discretion in sentencing S.D.G. to a mandatory life sentence for aggravated rape pursuant to La. R.S. 14:42(D)(2)(b).

Excessive Sentence — Aggravated Incest

S.D.G. also contends that his sentence for aggravated incest is constitutionally excessive.

Louisiana Revised Statutes 14:78.1(D) provides:

A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.

For his aggravated incest conviction, S.D.G. received the maximum sentence of twenty years. “[Mjaximum sentences are typically reserved for the worst offenders.” G.M.W., Jr., 916 So.2d at 464. Here, J.G. was in S.D.G.’s temporary care at the time of the offense. The aggravated incest was perpetrated on a three-year old child with such violence and force to cause lasting and maybe even permanent physical injury to J.G. in addition to any psychological damage caused by the crime. Due to the nature of the offense, the tender age of the victim, the harm done, and the fact that S.D.G. will not have to serve this sentence independently of his aggravated rape sentence as his sentences were ordered to run concurrently, we find that the trial court did not abuse its discretion in sentencing S.D.G. to twenty years at hard labor.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. The defendant’s sentences are amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:337. The trial court is instructed to make a notation in the minutes reflecting the amendment. This matter is remanded to the trial court [ 1Flfor its compliance with the provisions of La.R.S. 14:78(E) and amendment to the sentence for aggravated incest, if required.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844, the initials of the parties involved have been used throughout. Because the initials of some of the parties are the same, other designations have been used respectively.

      . At the time of trial, J.G. was eight years old.

      . We note that although Mr. Gilfoil's notes from the interview were not available, he testified that when he asked J.G. if J. and N. put their penises in his anus, J.G. informed him that S.D.J. did it as well.

      . The defendants' convictions are appealed under separate docket numbers and have been consolidated for review. While both convictions and sentences are discussed herein, see also State of Louisiana v. S.D.G., 06-175 (La.App. 3 Cir. 5/31/06), 931 So.2d 1254, 2006 WL 1476035.

      . A review of the record indicates that no motion to reconsider sentence had been filed in S.D.G.'s aggravated rape case or his aggravated incest case. Therefore, S.D.G.'s sentence claims are limited to the review of bare excessiveness in accordance with La.Code Crim.P. art. 881.1. State v. Mims, 619 So.2d 1059 (La.1993).


text:
    STATE of Louisiana v. S.D.G.
    No. 06-175.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    James C. Downs, District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, S.D.G.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

For disposition of this consolidated matter, see State of Louisiana v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 2006 WL 1476025.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.


text:
    Michael VEAZIE v. Monica FONTENOT.
    No. CA 2006-249.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Anne Elizabeth Watson, Opelousas, LA, for Defendant/Appellee, Monica Fontenot.
    Vanessa Harris-Kennerson, Harris and Harris, Opelousas, LA, for PlaintifFAppel-lant, Michael Veazie.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

pin this custody case, Michael Veazie appeals the decision of the trial court granting a change in domiciliary status of his child, Trever, in favor of the child’s mother, Monica Fontenot. For the following reasons, we reverse the decision of the trial court in part and affirm in part.

Trever Veazie was born on June 5, 1995. His parents, Mr. Veazie and Ms. Fontenot, were never married. Trever initially lived with his mother. At the age of sixteen months, Trever was sent to live with his father when his mother became overwhelmed with the responsibilities of raising the child. Trever has lived with his father ever since, except for a brief period in which he was removed from Mr. Veaz-ie’s home by Ms. Fontenot without his consent. That action by Ms. Fontenot led to the issuance of a considered decree in January of 1999, awarding the parties joint custody with Mr. Veazie designated as domiciliary parent. Ms. Fontenot was awarded visitation with the child.

In December of 2004, Ms. Fontenot filed a rule to change custody, seeking to become the domiciliary parent of Trever. Ms. Fontenot currently lives in Arlington, Texas. After a hearing on the matter, the trial court found that the benefits to the child from living with the mother substantially outweighed any harm that could be suffered as a result of a change of environment. The trial court designated Ms. Fontenot as domiciliary parent, ordered parenting classes for her, and ordered counseling for Trever. From this decision, Mr. Veazie appeals.

Mr. Veazie asserts as his lone assignment of error that the trial court erred in changing the domiciliary custody of Trever when the requirements of the Ber-geron standard had not been met. We agree.

| aUnder Louisiana Civil Code Article 131, decisions regarding custody of the children are made with the best interest of the child being paramount. This court has clearly stated the standard of review for an appellate court in child custody matters. “The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court articulated the standard to be used when a modification of a considered custody decree is sought. The court stated that:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Id. at 1200 (emphasis added). It is undisputed that the original custody decree rendered in this matter was a considered decree; therefore, the Bergeron standard is applicable.

We find that the trial court did not follow the Bergeron standard. Simply put, Ms. Fontenot did not prove that the harm likely to be caused by a change of environment is substantially outweighed by its advantages by clear and convincing evidence.

The trial court placed much weight on Trever’s stated desire to live with his mother. Trever’s preference is clear. He has been consistent in his choice, even telling the counselor assigned by the trial court to evaluate him that he would be “mad |3and sad” if he could not Uve with Ms. Fontenot. However, a child’s preference is but one factor to consider, the trial court even noting itself in its reasons for judgment that a child could and should not determine where he lives. Most ten year olds would not prefer a rigid, disciplined environment where school came before entertainment and sports to the world Trever knows at his mother’s, which is only during the summers, and is filled with fun and little to no responsibilities. Furthermore, a ten year old can not see that if he was at his mother’s house during the school year, that things would, or at least should, be different than in the summer. Trever’s preference alone simply does not give rise to the clear and convincing evidence needed to overturn a considered dfe-cree.

The trial court also noted tensions between Trever and his stepmother in changing the domiciliary status. Notably, Trever stated that he feels he is treated differently than his four-year-old stepbrother by his stepmother. Nevertheless, Mr. Veazie stated that any discrepancies between the way Trever is treated and the way Trever’s stepmother treats her own child can be explained by the fact that a ten year old is simply not treated the same way a four year old is. We find this to be credible. A ten year old; is unlikely to understand this, however. Furthermore, in his second session with the trial court, Trever retracted claims he made about being left behind while his father, stepmother, and half brother did things.

The trial court specifically noted that it felt that Mr. Veazie was a good father to Trever, who cared about his son’s education and participated in his life. We agree. It is clear that Mr. Veazie has been a good and caring father to Trever, making great sacrifices for the child when Ms. Fontenot was unable or unwilling to. His love for Trever is obvious. Trever has lived at his father’s home basically all of his life. He has been raised with the help of his paternal grandparents who live directly next door, |4and who have actively been a part of Trever’s daily life. To take Trever out of this stable, caring environment would not be in his best interest.

Furthermore, there exist serious concerns about the child’s education in Texas. Mr. Veazie and Trever’s grandmother have set up a structure for his education that would not be there in Texas with Ms. Fontenot. Before being placed on ADHD medication, Trever failed second grade with his father and grandmother, both teachers, tutoring him every day. Their constant work has made him go from failing to being on the honor roll for the past two years. Without the framework they have set up for his educational needs, the child might quickly find his grades slipping.

It is clear that Ms. Fontenot loves Trever greatly. However, after an examination of the record as a whole, it is clear that Ms. Fontenot did not meet the heavy burden required of her to alter a considered custody decree. She did not prove by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages. Therefore, the trial court clearly abused its discretion in altering the domiciliary status of the child.

The trial court did voice concern about Trever’s mental health. While he testified to the trial court that he no longer had self-destructive thoughts, and was glad that he never acted on them, Trever has indicated a desire to hurt himself in the past if he could not live with his mother. Because of this, the trial court ordered counseling for Trever. These concerns are valid. Like the trial court, this court feels that counseling is in the best interest of the child. However, he could receive counseling for any such issues while living with his father as easily as he could while living with his mother. We hereby affirm the portion of the judgment ordering that counseling be given to Trever.

|fiThe decision of the trial court granting Monica Fontenot domiciliary parent status over Trever is hereby reversed. The decision ordering counseling for Trever is affirmed. Costs of this appeal are assessed against Monica Fontenot.

AFFIRMED IN PART AND REVERSED IN PART.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Al Jerome JEANSONNE, Jr.
    No. 06-263.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Laura Marie Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, A1 Jerome Jeansonne, Jr.
    James C. Downs, District Attorney— Ninth Judicial District, Ada T. Gerald Henderson, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

It On January 12, 2005, A1 Jerome Jean-sonne, Jr. was charged with simple rape, a violation of La.R.S. 14:43. On October 5, 2005, following a trial by jury, Defendant was convicted as charged. Defendant then filed a motion for new trial, which was denied by the trial court. Defendant waived sentencing delays, and the trial court sentenced him to imprisonment at hard labor for twenty years, without benefit of probation, parole, or suspension of sentence.

Defendant appeals, claiming insufficient evidence to support his conviction, excessive sentence, and all errors patent. For the following reasons, Defendant’s conviction and sentence are affirmed, and Defendant’s sentence is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537.

FACTS

W.A., the victim, was fifteen years of age at the time of the offense. He is mentally and physically handicapped. W.A. testified that he lived with his mother, her boyfriend, his brother, and his sister. He identified Defendant as a neighbor.

W.A. stated that Defendant performed anal intercourse on him while in a clubhouse behind his home. He also stated that he told his sister, his aunt, and his brother about what had happened.

After W.A. told his aunt about the rape, she contacted his mother. On October 28, 2004, W.A.’s mother filed a complaint with the Alexandria Police Department. W.A. informed the police that Defendant had raped him. He was subsequently interviewed at the Child Advocacy Center and was also examined by a physician, who concluded that the victim exhibited signs of anal penetration. It is noted that the | ^physical examination was performed more than forty-eight hours after the reported rape. The record does not indicate whether a rape kit examination was performed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note that there is one error patent.

The trial court erred in failing to deny Defendant diminution eligibility under La. R.S. 15:537(A). That statute requires that diminution of sentence be denied to all offenders who are convicted of, or plead guilty to, sex offenses, including simple rape (the present offense). The statute is not clear, however, as to whether it is a mandate to the trial court to deny diminution of sentence, or it is a mandate to the Department of Corrections to implement the denial. In State v. G.M.W., Jr., 05-391, 05-392 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, we held that La.R.S. 15:537 is clearly a directive to the trial court, and the trial court’s failure to comply with La.R.S. 15:537 renders the sentence illegally lenient:

At the outset, we note that, at sentencing, the trial court stated that it was denying the Defendant eligibility for diminution of sentence in accordance with La.R.S. 15:571.3(C)(4)(E). The trial court had no authority to deny the Defendant diminution of sentence under the statute cited; however, the trial court was required to deny the Defendant diminution eligibility under La.R.S. 15:537(A), which requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated incest. We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La. Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences. Thus, we amend the Defendant’s sentences to reflect that diminution of sentence is denied pursuant to La.R.S. 15:537 rather than La. R.S. 573.3 as stated by the trial court.

\Jd. at 461.

Abiding by this court’s holding in G.M.W., we find the simple rape sentence imposed in the present case is likewise illegally lenient because the trial court failed to deny diminution of sentence pursuant to La.R.S. 15:537. As did the court in G.M.W., we amend Defendant’s simple rape sentence to reflect that his diminution eligibility is denied pursuant to La.R.S. 15:537. Since the correction does not involve sentencing discretion, a remand is not necessary. State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694. However, this matter will be remanded and the trial court instructed to make a notation in the minutes reflecting the amendment.

Additionally, we note that the victim was not identified by name or initials in the bill of information. Louisiana Code of Criminal Procedure Article 473 provides:

When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known. If the name, appellation, or nickname of the victim is not known, it is sufficient to so state and to describe him as far as possible. In stating any name of a victim it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.

In this case, the District Attorney could not publicly disclose the victim’s name or identity because the victim was a minor and the victim of a sex offense; however, he could have used “initials, abbreviations, or other forms of indefinite descriptions” on public documents to prevent public disclosure of the name. See La.R.S. 46:1844(W)(1) and La.R.S. 46:1844(W)(3).

In the following excerpt from State v. Thompson, 00-1808, p. 1 (La.2/2/01), 781 So.2d 1221, 1222, the supreme court characterized La.R.S. 46:1844(W)(1) as an exception to La.Code Crim.P. art. 473:

|4As amended by 1999 La. Acts 783, La.R.S. 46:1844(W)(1) prohibited at the time of discovery proceedings in this ease any judicial officer or district attorney from making public disclosure of the name and identity of a minor under the age of 18 years at the time of the commission of any offense. The statute thus provided an express and specific exception to the general rule of [La. Code Crim.P.] art. 473 that “[wjhen the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known.”

Therefore, there is no error patent to be recognized as a result of the District Attorney not identifying the victim by name or initials in the bill of information.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant asserts that the evidence is insufficient to sustain a conviction for simple rape because the State failed to prove beyond a reasonable doubt that the victim lacked capacity, through unsoundness of mind, to understand the nature of the act.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted of simple rape, defined in pertinent part by La.R.S. 14:43, which provides:

15A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(2) When the victim is incapable, through unsoundness of .mind, whether temporary or permanent, or understanding the nature of the act and the offender knew or should have known of the victim’s incapacity.

Defendant asserts that the victim’s testimony at trial, and his “quick complaint,” clearly indicated that he understood the nature of the act. Therefore, Defendant concludes that the State failed to prove that particular element necessary for a conviction of simple rape.

In State v. Ward, 04-1295 (La.App. 5 Cir. 4/26/05), 903 So.2d 480, unit denied, 05-1718 (La.3/17/06), 925 So.2d 533, a case directly on point, the defendant asserted the same claim. Ward argued that the lengthy and detailed testimony of the twenty-year-old mentally handicapped victim clearly showed that she understood the nature of the act. The court found this assertion to be without merit and ruled that a person with the mental development of a six or seven-year-old child lacked the capacity to consent to sexual activity, despite his or her ability to testify on the offense:

It seems beyond question that competency to testify is not the same as the capacity to understand the nature of the sexual act. There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual act. State v. Peters, (La.App. 4 Cir.1983), 441 So.2d 403, writ denied 530 So.2d 560[, La.1988].

Id. at 485.

In the instant case, the victim’s teacher was accepted by the court as an expert in special education. She testified that the victim has intellectual cognitive deficits Rand classified his mental handicap as mild to moderate. She also stated that although the victim was fifteen years of age, he only functioned at a first grade level. In his own testimony, Defendant stated that he knew the victim, who lived in the house next door to him, and also knew the victim’s family. Defendant stated that he spent time in the victim’s home and that he got to know the victim because he would “follow you around like a little lost puppy.”

We find that the evidence, under the Jackson standard of review, viewed in the light most favorable to the prosecution, was sufficient to show that the victim lacked the capacity to understand the nature of the act and that Defendant knew about the victim’s mental incapacity. Therefore, this assignment is without merit.

ASSIGNMENT OP ERROR NO. 2

In his second assignment of error, Defendant asserts that the trial court erred by imposing an excessive sentence. Defendant argues that he should not be sentenced to a term near the maximum provided for by the statute for the convicted offense.

Initially, we note that Defendant did not file a motion for reconsideration of the sentence. Louisiana Code of Criminal Procedure Article 881.1 provides that the failure to file or make a timely motion to reconsider the sentence precludes the defendant from objecting to the sentence on appeal. In State v. Craft, 01-248 (La.App. 3 Cir. 10/3/01), 796 So.2d 907, we recognized that the failure of a defendant to timely move for reconsideration of sentence precluded review of a subsequent claim of excessiveness of that sentence. However, we, in the interest of justice, has reviewed sentences for bare excessiveness when no motion to reconsider sentence was filed. See State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784, and State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-29 (La.10/14/02), 827 So.2d 420. In this case, we will review Defendant’s sentence for bare excessiveness.

We have set forth the following standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of - the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

The trial court sentenced Defendant to twenty years imprisonment at hard labor without benefits of parole, probation, or suspension of sentence. In his brief to this court, Defendant simply asserts that the sentence is excessive because it does not fairly reflect the offense and the offender.

A person convicted of simple rape may be sentenced to imprisonment for a term of not more than twenty-five years, with or without hard labor, and without benefit of parole, probation, or suspension of sentence. See La.R.S. 14:43(B). The twenty-year sentence imposed on Defendant is clearly within the statutory range for simple rape.

At the sentencing hearing, the trial court discussed the reasons for imposing the sentence at issue:

I’ve carefully considered your record and your record indicates prior sexual crimes and does not necessarily indicate one or another sexual orientation, which is not taken into consideration, but your action really constitutes predatory and deviant behavior. Since you have not learned from previous examples you are in need of further corrective treatment. I also find that there is an undue risk of your committing another crime during the period of suspended sentence. I don’t think a suspended sentence is appropriate in this case. I feel like you’re in need of correctional treatment and a custodial environment can more effectively provide that treatment. It may take a while to do it. Any lesser sentence than what I am going to impose I believe will deprecate the seriousness of the crime. I certainly consider that the victim of this crime was a person very vulnerable, very limited ability [sic] that you knew quite well and knew you and created an atmosphere where you could do this. The maximum sentence for this crime is twenty-five years. Including considering your previous record and my fear that if you’re out too long somebody else might be a victim of the same crime and I’m going to sentence you to serve a period of twenty years in the custody of the Department of Corrections in the State of Louisiana.

Defendant neither shows nor alleges that the trial court failed to properly consider any possible mitigating factors when imposing sentence. Therefore, in light of the | gvictim’s age and mental and physical handicaps, we find that the trial court did not abuse its discretion in sentencing Defendant to twenty years imprisonment for simple rape, an offense for which he could have been sentenced to a maximum term of twenty-five years. Accordingly, this assignment is without merit.

DECREE

We affirm Defendant’s conviction and sentence. Additionally, we amend Defendant’s sentence to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537. This case is remanded to the trial court with instructions to make a notation in the minutes reflecting said amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . In accordance with La.R.S. 46:1844(W), the initials for the minor victim will be used.


author: DECUIR, Judge. PAINTER, J.,

text:
    STATE of Louisiana v. Wilbert TOUCHET, Jr.
    No. 06-281.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for Appellee, State of Louisiana.
    Richard J. Putnam, III, Assistant District Attorney, Fifteenth Judicial District Court, Abbeville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Wilbert Touchet, Jr.
    Wilbert Touchet, Jr., In Proper Person.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| defendant, Wilbert Touchet, Jr., was convicted of sexual battery, a violation of La.R,S. 14:43.1, and simple battery, a violation of La.R.S. 14:35, by this court on March 8, 2005. Relator was originally convicted of aggravated rape, second degree battery, and false imprisonment. However, this court found that the evidence was not sufficient to support the three convictions. Accordingly, this court reduced two of the convictions, reversed the false imprisonment conviction, vacated the sentences, and remanded the matter for resentencing. See State v. Touchet, 04-1027 (La.App. 3 Cir. 3/9/05), 897 So.2d 900.

Defendant was resentenced on October 10, 2005, to ten years at hard labor without the benefit of parole, probation, or suspension of the sentence on the conviction for sexual battery and to six months in the parish jail on the conviction for simple battery. The sentences were ordered to be served consecutively. Defendant filed a motion to reconsider the sentences on October 24, 2005, alleging that the sentences were constitutionally excessive and that the trial court erred when it sentenced Defendant to consecutive sentences. A hearing was held on December 12, 2005, wherein his motion for reconsideration was denied. It is from this denial Defendant now appeals.

ASSIGNMENT OF ERROR

Defendant appeals his sentences. He alleges that the trial court erred when it ordered the sentences to be served consecutively, and that the maximum sentences are excessive under the circumstances of the case. Defendant was convicted of one count of sexual battery, a violation of La. R.S. 14:43.1, which provides for a sentencing range of “imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years,” and one count of simple battery, a violation of La.R.S. 14:35, which provides for a punishment of a |g“[fme] not more than five hundred dollars, or imprisonment for not more than six months or both.” Defendant was sentenced to the maximum imprisonment on both convictions and ordered to serve the sentences consecutively. He argues that maximum sentences were not warranted under the facts of the case.

In State v. Whatley, 03-955, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958 (alteration in original), this court held:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he ex-cessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Louisiana Code of Criminal Procedure Article 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other, sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Initially, it is noted that since the offense of simple battery was a misdemean- or, a review of the sentence imposed on the conviction for simple battery would more appropriately be raised by a writ rather than on appeal. However, we will address the |sclaim under this circumstance in the interest of judicial economy. See State v. Branch, 96-1626 (La.App. 3 Cir. 5/21/97), 696 So.2d 81.

At the resentencing hearing, following a recitation of the procedural history which brought the case back to the trial court for resentencing, a review of the offenses, and the potential punishments associated with the offenses, the trial court stated as follows:

The Pre-sentence Investigation Report reveals the following criminal record of Mr. Touchet. He was convicted of DWI in 1992 in Jennings. In 1996, he was convicted of battery of a police officer, two (2) counts. In 1996, he was convicted of simple battery. In 1997, he was convicted of simple battery, domestic violence, in the Kaplan City Court. In 1990-2000, he was convicted of simple battery in this parish. In 2002, he was convicted of second degree battery in the District Court in Cameron, and he received a two-year D.O.C. sentence, which was suspended. And in 1997, he was convicted of another simple battery, domestic violence.
In addition to those convictions, he was also, some years ago, arrested for eight (8) counts of attempted first degree murder. That-those charges were dismissed by the District Attorney. He was charged in another case with aggravated rape and was acquitted by the jury. On another occasion, he was charged with aggravated assault, aggravated battery, simple battery and false imprisonment, and that case against him was dismissed because the female victim declined to prosecute.
These convictions are the result of what I guess can be described as a reign of terror committed by Mr. Touchet on [C.L.]. Over a period of two (2) to three (3) weeks he beat her, threatened her and he terrorized her on a daily basis until March 31st, when he savagely beat her in Cameron Parish and she was able to escape and file charges against him over there.
Mr. Touchet has a long history of violence. He’s got a history of violence against women, as evidenced by his convictions for domestic abuse battery. Anything less than the maximum penalty for sexual battery would deprecate the seriousness of the crime that he committed.

The fifth circuit, in State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-438 (La.6/25/99), 745 So.2d 1183, held that a reviewing | ¿court should consider three factors in reviewing the trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts.

Battery is defined as “the intentional use of force or violence upon the person of another.” La.R.S. 14:33. In brief, Defendant argues that “the trial court noted that Touchet had a history of violence against women. It is noted, however, that Wilbert Touchet had only one prior conviction for domestic violence, a simple battery conviction in 1997.” What is notable is that in a ten-year period, Defendant, who was thirty-six at the time of sentencing, had nine convictions which involved violence against persons. Moreover, within that time period, Defendant had been charged with several offenses involving violence toward women, and was either acquitted or the charges dismissed because the victim declined to testify. We note that besides the arrests for offenses described by the trial court above, Defendant’s arrest report indicated there was an additional charge of domestic battery in 2001, and charges of molestation of a juvenile and aggravated oral sexual battery in 1998. Further, included with the eight charged offenses of attempted first degree murder, there was a charge of illegal discharge of a firearm.

The trial court heard testimony that during the few weeks Defendant and the victim were together, he continuously beat her. The victim testified that the beatings occurred daily, that he would strike her in the face with his fist. The trial court saw photographs depicting bruises all over the victim’s body.

In State v. Dykes, 38,092 (La.App. 2 Cir. 3/3/04), 867 So.2d 908, writ denied, 04-847 (La.9/24/04), 882 So.2d 1169, the second circuit affirmed the maximum sentences of ten years at hard labor on each of three counts of sexual battery of a juvenile, even though Dykes was sixty-four years old and suffered from a disabling | smedical condition. In State v. Peloquin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d 393, writ denied, 04-3170 (La.4/8/05), 898 So.2d 1280, this court did not find the maximum sentence of five years on a conviction for attempted sexual battery to be excessive. The evidence indicated Peloguin was the victim’s godfather and the victim was considered to be retarded. In State v. Martinez, 39,332 (La.App. 2 Cir. 12/22/04), 890 So.2d 761, the second circuit did not find Martinez’s maximum sentence of ten years on a conviction of oral sexual battery to be excessive, even though he had no prior criminal record.

Considering the circumstances of this case and Defendant’s prior criminal history, the maximum sentences of ten years at hard labor and six months in the parish jail, to be served consecutively, are such that they would not shock this court’s sense of justice. The trial court did not abuse its considerable discretion when it sentenced Defendant to the maximum sentences.

Defendant further argues that the trial court erred when it sentenced him to serve six months on the conviction for simple battery consecutively to the ten-year sentence. In brief, Defendant argues only that “as the convictions arose out of the same occurrence, concurrent sentences should have been imposed.” However, simply because it was the same victim, it cannot be argued that the simple battery necessarily arose out of the same act or transaction, or constituted parts of a common scheme or plan as the sexual battery. Defendant’s abuse of the victim was daily over a period of several weeks. Accordingly, there is no merit to this claim.

DECREE

For the foregoing reasons, Defendant’s sentences are affirmed.

AFFIRMED.

PAINTER, J., concurs and assigns reasons.

PAINTER, J.,

concurs.

hi concur in the majority opinion herein. While I agree that the record supports the sentence imposed, I would also find that the sentence is illegally lenient because the trial court failed to deny diminution of the sentence pursuant to La.R.S. 15:537. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences. See also State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664; State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166; and State v. G.M.W., Jr., 05-391 (La.App. 3 Cir. 11/2/05), 916 So.2d 460. Therefore, I would recognize the error patent, amend the sentence, and instruct the trial court to make a notation in its minutes of the amendment.


author: JAMES F. McKAY III, Judge. ARMSTRONG, C.J.,

text:
    STATE of Louisiana v. Eddie ROBERT.
    No. 2005-KA-1315.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.
    Rehearing Denied June 30, 2006.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Michael G. Morales, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    Kevin V. Boshea, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

11 STATEMENT OF CASE

On October 24, 2003, the State filed a bill of information charging Eddie Robert with distribution of marijuana, a violation of La. R.S. 40:966(A). At his January 29, 2004, trial, a twelve-person jury found him guilty as charged. On May 7, 2004, the trial court sentenced the defendant to serve five years at hard labor, with credit for time served and ordered the sentence to run concurrently with any other sentence. The defendant’s motion for reconsideration of sentence was denied, and his motion for an appeal was granted. On May 14, 2004, the State multiple billed the defendant. Following a hearing on the multiple bill on January 10, 2005, the trial court adjudged the defendant a second offender, vacated the previous sentence and sentenced the defendant pursuant to La. R.S. 15:529.1 the minimum sentence of fifteen years at hard labor with credit for time served and ordered that the sentence be served concurrently with any other sentence. This Court affirmed the defendant’s distribution of marijuana conviction and sentence. State v. Robert, unpub., 2004-1141 (La.App. 4 Cir. 9/29/04, 883 So.2d 544).

| .STATEMENT OF FACT

The following statement of fact is taken from State v. Robert, unpub., 2004-1141 (La.App. 4 Cir. 9/29/04, 883 So.2d 544).

At trial, Officer Frank Watts testified that he was on a routine patrol on the evening of October 16, 2003, when he observed what appeared to be a drug transaction at the corner of Mazant and Urquhart Streets. He testified that he saw two men standing face to face when one man gave the other currency. The recipient, later identified as Robert, then reached into his back pocket for an item the officer believed to be contraband. Robert handed the package to the first man, who was later identified as Kendall Rivers. When the officer stopped to investigate, Rivers ran about one-half block before being apprehended; he was carrying a bag of marijuana. Robert was also detained, and he was found to be carrying fourteen dollars in cash. Both men were advised of their rights and arrested. Under cross-examination, the officer was asked to estimate what the bag of marijuana would cost, and he answered that according to the grade, it would range between five and twenty-five dollars.
Officers Richard LeBlanc and Nathan Gex also testified at trial. Both officers were with Officer Watts on October 16th when Robert was observed, apprehended, and arrested, and their testimony tracked that of Officer Watts. Officer Gex detained Robert and recovered fourteen dollars
The parties stipulated that the bag of vegetable matter was tested and proved to be marijuana.
Kendall Rivers, the seventeen-year-old friend of Robert, testified that he lives on the same block of Mazant Street as Robert. The night they were arrested, he was charged with possession of marijuana, resisting arrest, and obstruction of justice. Rivers gave a different account of the events of October 16th. He testified that he and Robert were walking up the street to a store on the corner of St. Claude Avenue and Mazant Street. When the police officers jumped out of their marked car, he ran. He testified the police “had did [sic] him [Robert] that one time before.” After he was stopped, Rivers testified that he was placed in the back of the police car and asked why he ran. He answered that he did not know. Meanwhile the officers were looking around on the ground, and one of them picked up something from the ground. The officer said he “got this off the ground, it’s yours” and showed him the bag of marijuana. Rivers denied buying drugs from Robert that night and declared that he had no drugs when he was stopped that night.

ASSIGNMENTS OF ERROR

In his assignments of error, the defendant argues that his sentence under the Habitual Offender statute is excessive.

| 3Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const. Art. I, 20; State v. Landry, 2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235,1239-1240. A sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit. Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Landry, 871 So.2d at 1239-1240, citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.

A mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 342. In State v. Dorthey, supra at 1280-1281, the Louisiana Supreme Court specifically held that when a trial court determines the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Id. To merit a deviation below the mandatory minimum sentence, the defendant must clearly and convincingly show that he is |/‘exceptional.” State v. Johnson, supra. Such downward departures should occur only in rare instances. Id.

In this case, the defendant argues his sentence is excessive considering his age, background, and lack of criminal history.

The record indicates the defendant was eighteen old at the time of his July 1999 arrest and guilty plea to possession of cocaine. At that time, a conviction for possession of cocaine carried a mandatory prison term of up to five years plus the possibility of a fíne. La. R.S. 40:967C(2). However, the defendant received a mid-range sentence of thirty months in the Department of Corrections, About Face Program and no fine. More than four years later, the defendant was arrested on the present charge — distribution of marijuana — La. R.S. 40:966. For that conviction,' pursuant to La. R.S. 15:529.1, the trial court imposed the minimum sentence of fifteen years, without a fine.

The Louisiana Supreme Court has stated that on appellate review of a sentence, the only relevant question is whether the trial court abused its broad discretion in sentencing, not whether another sentence might have been more appropriate. State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608; State v. Bajoie, 2004-1843 (La. App. 4 Cir. 3/9/05), 899 So.2d 78.

In conjunction with his argument in the assignment above the defendant argues that the trial judge failed to state reasons for sentencing the defendant as required by La. C. Cr.P. art. 894.1.

La.C.Cr.P. art. 894.1 requires that the trial ■ judge state the considerations taken into account and the factual basis therefore in imposing sentence. State v. Bajoie, 2004-1843 (La.App. 4 Cir. 3/9/05), 899 So.2d 78.

[^Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. article 894.1, and whether the sentence is warranted in light of the particular circumstances of the case. State v. Williams, 2002-1815 (La.App. 4 Cir. 11/20/02), 833 So.2d 428; State v. Quebedeaux, 424 So.2d 1009 (La.1982).

However, the articulation of the factual basis for a sentence is the goal of art. 894.1, not rigid or mechanical compliance with its provisions. State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In this case, the trial judge ordered a Pre-Sentence Investigation (PSI); however, there is nothing in the record to indicate one was obtained. The trial court gave no reasons for sentencing, nor indicated in any way that it had considered the sentencing factors in La. C. Cr. P. article 894.1.

In this particular instance the trial court found the defendant to be a second offender pursuant to La. R.S. 15:529.1, and sentenced him to 15 years which is in the statutory limitation. It is not clear from the records before this court that the trial court considered Article 894.1, in the imposition of this sentence.

A sentence may be reviewed for constitutional excessiveness even though it is within statutory guidelines. See. State v. Points 200-1371 (La.App. 4th Cir.4/11/01), 787 So.2d 396; State v. Cann, 471 So.2d 701, 703 (La.1985). In reviewing a sentence for excessiveness, the Court must first determine whether the trial court complied with La.C.Cr.P. art. 894.1 in imposing the sentence and then determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. State v. Lobato, 603 So.2d 739, 751 (La.1992). If | «the sentence needlessly imposes pain and suffering and is grossly out of proportion to the seriousness of the offense so as to shock our sense of justice, then it may be determined to be unconstitutionally excessive as violative of La. Const. Art. 1, 20 (1974). Id. However, a sentence imposed will not be set aside absent a showing of abuse of the trial court’s wide discretion to sentence within statutory limits. Id.

Once adequate compliance with La.C.Cr.P. art. 894.1 is found, the court may consider whether the sentence is excessive in light of sentences imposed by other courts in similar circumstances. Also, the trial court may take into consideration the recent Louisiana legislation, in particular Acts 2001, No.403 eff. June 15, 2001, which significantly reduce the penalities of a large series of Title 40 drug offenses. Act No. 403 of 2001, which included an amendment to those provisions of La. R.S. 15:529.1, applicable to the instant case, had been enacted by the legislature in an attempt to reduce incarceration rates for non-violent offenders and to ease the financial burden on the state. State v. Sugasti, 01-3407, p. 3 (La.6/21/02), 820 So.2d 518, 520. Here, the defendant was sentenced for a violation of La.R.S. 40: 966(A). Prior to the enactment of this. Act the maximum term of imprisonment under B was life imprisonment. After the enactment of the Act the term was limited to not more than fifty year; a considerable downward sentencing.

Here, the jury returned a guilty as charged verdict on the defendant with only thirty-five minutes of deliberations. The record reflects that defendant had fourteen dollars on his person when he was arrested. The amount of drugs discovered was a bag with 1.8 grams of marijuana. The defendant’s original bond was set at $2,500.00, demonstrating that this defendant was neither a violent |7criminal nor a flight risk. More importantly, the defendant’s past criminal history is not of a violent nature.

After a careful review of the record before this Court we are unable to ascertain whether or not the trial court considered any of the multiple factors outlined in La. C. Cr. Pro. Art 894.1. Accordingly, we find that the sentence imposed by the trial court on January 10, 2005, was done so in error. Therefore, we instruct the trial court to consider the following: La.C.Cr. Pro. art. 894.1, if it has not previously done so, the legislative intent of Acts 2001, No. 403 and possibly review the matter for Dorthey factors, if any, in its resentencing determination. We therefore, vacate the sentence and remand the matter for resen-tencing.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

ARMSTRONG, C.J., Concurs.

ARMSTRONG, C.J.,

concurs.

Li respectfully concur in the majority’s decision to remand this matter for resen-tencing.

      . The State charged the defendant as a third offender but the trial court ruled the State failed to prove that the defendant's 1998 plea to theft of goods (La. R.S. 14:67.10(2) was voluntary.) Case No. 399-422, Section "J".