author: EZELL, Judge.

text:
    Thalia RENFRO v. BURLINGTON NORTHERN AND SANTA FE RR, et al.
    No. CA 06-952.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 10, 2007.
    John Fayne Wilkes, III, Lisa Eve Mayer, Borne & Wilkes, L.L.P., Lafayette, LA, for DefendanVAppellee, Town of Vinton.
    Lawrence N. Curtis, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Thalia Renfro.
    John Edmund McElligott, Jr., Kyle Gideon Davidson, Meaux, Sonnier & McElli-gott, Lafayette, LA, for Defendants/Appel-lees, Burlington Northern and Santa Fe Railroad Union Pacific Railroad Company.

      Ted David Hernandez, Assistant Attorney General, Lafayette, LA, for Defendant/Appellee, State of Louisiana through the Department of Transportation and Development.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

h This appeal involves a summary judgment in favor of the Louisiana Department of Transportation and Development (DOTD) in a suit involving an accident at a railroad crossing in Vinton in which Mallory Young was killed. The trial court also granted the DOTD’s motion to withdraw exhibits pursuant to 23 U.S.C.A. § 409 filed in conjunction with a different motion for summary judgment.

FACTS

On November 4, 2001, Ms. Young was killed while passing over the railroad crossing on Eddy Street in Vinton. Around 1997, the Eddy Street crossing was closed when improvements were made to the Horridge Street crossing. The Eddy Street crossing was subsequently reopened as a passive crossing with crossbucks and stop signs. Ms. Young’s mother, Thalia Renfro, filed suit against multiple defendants, including the DOTD, alleging, among other issues, that the Defendants had negligently failed to provide adequate warnings at the crossing.

Initially, the DOTD filed a motion for summary judgment arguing that it owed no duty because the Eddy Street crossing is an off-system railroad crossing, meaning it is not part of the state highway system. Subsequently, the DOTD filed a second motion for partial summary judgment and motion in limine on the issue of preemption of liability for additional signalization at the crossing, arguing that the inadequate signalization claim had been preempted by federal law. In support of this second motion, the DOTD filed numerous documents relating to this particular crossing.

Utilizing the information contained in these documents, Ms. Renfro opposed the first motion for summary judgment on the grounds that the documents introduced with the DOTD’s second motion for summary judgment indicate that the DOTD had exercised control over the Eddy Street crossing closure and reopening. A hearing on |2the motions was held on January 18, 2006. At that time, the DOTD orally moved to withdraw its second motion for partial summary judgment and the documents filed in connection with it. The trial court took the matter under advisement.

On April 5, 2006, the trial court issued written reasons for judgment granting the DOTD’s motion to withdraw the exhibits. The trial court then granted the DOTD’s original motion for summary judgment. A final judgment was signed on May 9, 2006, and Ms. Renfro filed the present appeal. Although not a party to the particular summary judgment proceedings which are on appeal, the Town of Vinton filed a brief as appellee.

23 U.S.C.A. § 409

First and foremost at issue in this case is 23 U.S.C.A. § 409. Based on Section 409, the trial court allowed the DOTD to withdraw exhibits from the record. Ms. Renfro seeks to use the documents to establish that the DOTD assumed a duty with respect to the Eddy Street crossing. Section 409 prohibits the discovery and introduction of information compiled by the state for the purpose of obtaining federal funds to enforce safety at roadway/railroad crossings. In Palacios v. Louisiana and Delta Railroad, Inc. 98-2932, p. 8 (La.7/2/99), 740 So.2d 95, 99, the Louisiana Supreme Court set forth criteria that courts should use in determining whether a document should be afforded the Section 409 protection:

(1) reports, surveys, schedules, lists or data,
(2) compiled or collected,
(3) for the purpose of identifying, evaluating, or planning the safety enhancement of ... railway-highway crossings,
(4) pursuant to 23 U.S.C. § 130.

There has been no allegation by Ms. Renfro that the documents she seeks to use are not protected by Section 409. Ms. Renfro asserts that the DOTD waived any | ^privilege it may have had pursuant to Section 409 by deliberately disclosing the contents of the documents and placing them at issue. She claims that she is entitled to use the documents because the DOTD waived any protection afforded it by Section 409 when it introduced the documents on its own behalf. The DOTD argues that the evidentiary bar established by Section 409 is not waivable.

We observe that both the DOTD and the Town of Vinton argue that there is a limited exception to Section 409 protected materials, i.e., to establish federal funding citing Hargrove v. Missouri Pacific Railroad Co., 05-723 (La.App. 3 Cir. 1/18/06), 925 So.2d 25. However, a reading of the previous decision by this court in Hargrove v. Missouri Pacific Railroad Co., 03-818 (La.App. 3 Cir. 12/17/03), 861 So.2d 903, writ denied, 04-187 (La.3/26/04), 871 So.2d 349, explains that the materials sought to be introduced to establish federal funding were properly introduced because they were not privileged documents pursuant to Section 409. This court did not recognize any exception to Section 409. To recognize such an exception would allow the DOTD “to thwart the truth-seeking process by using the privilege as both a shield and a sword.” Madden v. Indiana Dept. of Transp., 832 N.E.2d 1122, 1128 (Ind.Ct.App.2005) (quoting Adams v. Ardcor, 196 F.R.D. 339, 343 (E.D.Wis.2000)).

There have been cases from other jurisdictions which have discussed the waiver of the Section 409 privilege. In Walden v. Department of Transp., 27 P.3d 297 (Alaska 7/13/01), Ms. Walden sought to introduce a Department of Transportation Design Study Report in an accident case. While the court found that. Ms. Walden did not object to the exclusion of the report at trial, it addressed the issue of waiver of the Section 409 privilege. Ms. Walden argued that the state had waived the protection of the statute by providing it to her in discovery. The court noted that “[t]he state did provide the report in discovery, but Walden’s argument nonetheless |4fails because, at most, by that action DOT [the State Department of Transportation] waived only the protection of the statute with respect to discovery, not to its admission in court.” Id. at 305.

In Boyd v. National Railroad Passenger Corp., 62 Mass.App.Ct. 783, 821 N.E.2d 95 (1/20/05), reversed on other grounds, 446 Mass. 540, 845 N.E.2d 356 (4/14/06), the court in discussing the Section 409 privilege the court noted at footnote eleven that the language of Section 409 indicates an intent to supersede the common law of privilege waiver. Thus, the court found no merit to the plaintiffs claim that the Section 409 privilege had been waived by producing privileged documents in discovery.

Finally, Vega v. State, 10 Misc.3d 822, 804 N.Y.S.2d 229 (N.Y.Ct.Cl.2005), also discussed the Section 409 privilege. The court concluded that “Section 409 establishes both a discovery privilege, which is waivable, and an evidentiary bar, which is not.” Id. at 233. It is unclear from the court’s reasoning why it determined that one privilege was waivable and one was not. Following the 1991 amendment to Section 409 which added the discovery language, Section 409 read, in pertinent part: “shall not be subject to discovery or admitted into evidence.... ” The discovery language limitations are the same as the evi-dentiary limitations. Section 409 does not differentiate between the two. The court makes a conclusion on its own that the evidentiary prohibition prior to 1991 was not waivable, citing no authority for such proposition.

Rule 501 of the Federal Rules of Evidence provides:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule |Bof decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

We see no compelling reason that the State cannot waive the privilege afforded it by Section 409. Section 409 merely affords the State a disclosure and evidentiary privilege regarding certain materials. The United States Supreme Court has recognized that Section 409 establishes a privilege. As stated in Pierce County, Washington v. Guillen, 537 U.S. 129, 130, 123 S.Ct. 720, 723, 154 L.Ed.2d 610 (2003), “[e]videntiary privileges, such as § 409, must be construed narrowly because they impede the search for truth.” In United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), the Supreme Court recognized that statutory provisions are subject to waiver absent an affirmative indication in the statute of Congress’ intent to preclude waiver. There is nothing in Section 409 that prevents the State from waiving the statutory privilege it has been granted. As noted by the court in Powers v. CSX Transportation, Inc., 177 F.Supp.2d 1276, 1281 (S.D.Ala.7/16/01): “A primary attribute of a privilege is that it may be waived by the party for whose benefit it exists, and waiver is often found when that party has voluntarily disclosed protected information.”

Therefore, we find that the discovery and evidentiary privilege established by Section 409 can be waived by the party entitled to assert the privilege. In the present case, the DOTD chose to admit documents which it claims are privileged into evidence with its motion for summary judgment. Once the DOTD put the documents in evidence, it waived the privilege regarding those documents. Once it waived the privilege, the information in the documents was no longer privileged.

For these reasons we find that the trial court erred in allowing the DOTD to withdraw these exhibits. These exhibits were part of the record and were no longer privileged.

[^MOTION FOR SUMMARY JUDGMENT

The trial court granted the DOTD’s first motion for summary judgment alleging that it should be dismissed because it owed no duty with respect to the Eddy Street crossing since it was an off-system crossing. In making its decision, the trial court did not rely on the documents in the record. As discussed above, we find that this was in error. Relying on Long v. State ex rel Dep’t of Transp. and Dev., 04-485 (La.6/29/05), 916 So.2d 87, Ms. Renfro claims that the documents in the record establish that the DOTD did much more than simply select the Eddy Street crossing for upgrade, thereby establishing that the DOTD assumed duties regarding the crossing and is therefore, not entitled to summary judgment.

We review summary judgments de novo applying the same criteria as the trial court in determining whether summary judgment is appropriate. P.G. Diners, Inc. v. CAT Scale Co., 04-757 (La.App. 3 Cir. 11/10/04), 886 So.2d 1253. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). “A genuine issue exists where reasonable persons, after considering the evidence, could disagree.” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La.4/12/05), 907 So.2d 37, 48, (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751). “A fact is ‘material’ if it is one that would matter at trial on the merits.” Id. Summary judgment is appropriate only when it is inevitable that reasonable minds would conclude that there does not exist any genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Natchitoches Parish Hosp. Serv. Dist. v. Rachal, 94-995 (La.App. 3 Cir. 2/1/95), 649 So.2d 1152, writ denied, 95-528 (La.4/7/95), 652 So.2d 1349. If there is any doubt, it should be resolved in favor of denying the motion for summary judgment and in favor of a trial on the merits. Id. Bearing in mind the standard governing our review of the trial court’s ruling, we will consider whether there is a genuine issue of material fact in dispute and whether the DOTD is entitled to judgment as a matter of law.

In Long, 916 So.2d 87, the supreme court held that the mere selection of an off-system crossing for an upgrade did not impose an automatic duty on the DOTD to be responsible for the crossing. Our review of the documents in the record indicate that the DOTD was more involved with the Eddy Street crossing than merely selecting it for an upgrade. Correspondence between the parties indicates that the DOTD was involved in many decisions regarding the closure and subsequent reopening of the Eddy Street crossing.

We^ find that there is a question of material fact as to whether the DOTD had a duty regarding the Eddy Street crossing. Therefore, we reverse the summary judgment rendered in favor of the DOTD and remand the case for further proceedings. Costs of this appeal in the amount of $1,464.50 are assessed to the DOTD.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    BASIC HOME CARE SERVICES, INC. v. William DORE.
    No. 06-1036.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Lynden J. Burton, Pecantte-Burton & Burton, New Iberia, LA, for Plaintiff/Appellant, Basic Home Care Services, Inc.
    Edward C. Abell, Jr., Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee, William Dore.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|Jn this breach of contract case, Basic Home Care Services, Inc. (Basic Home Care) appeals the trial court’s grant of William Dore’s (Dore) motion for directed verdict and the trial court’s sequestration ruling. For the following reasons, we affirm.

FACTS

Plaintiff, Basic Home Care, is a licensed provider of a variety of non-medical, independent living services for its elderly and disabled clients. According to the testimony of Omar Pecantte, the business office manager of Basic Home Care, in November of 2005, Elaine Dore (Mrs. Dore), who had been a previous client, contacted Basic Home Care about retaining its services. Omar Pecantte further testified that after he spoke to Mrs. Dore about the services and the terms thereof, at her request, he faxed an employment agreement to her son, Dore. The agreement faxed to Dore by Basic Home Care was a twelve month contract for independent living services. Omar Pecantte testified that Dore edited the document by substituting his own name for that of his mother as the person responsible for paying for the services, signed the document, and faxed it back to Basic Home Care. Omar Pecantte and Richard Pecantte, the chief executive officer of Basic Home Care, testified that they both signed the document and faxed it back to Dore. Although the parties disagree on the reason and manner in which it occurred, Richard Pecantte testified that on November 6, 2005, Mrs. Dore advised Basic Home Care that she no longer desired its services. Basic Home Care subsequently filed suit against Dore, alleging that he was liable for breaching the contract between the parties.

12At the commencement of trial, Dore moved to sequester the witnesses. All of the witnesses were sworn in and ordered to leave the courtroom until they were called to testify, except Richard Pecantte and Mrs. Dore. Basic Home Care objected to Mrs. Dore being allowed to remain in the courtroom, and the trial court overruled the objection.

After the presentation of Basic Home Care’s case, Dore moved for a directed verdict asserting that Basic Home Care failed to prove that a contract existed between the parties as alleged. The trial court ruled that there was an oral contract for five days of service between Basic Home Care and Mrs. Dore, which was admittedly paid, but that there was no contract between Basic Home Care and Dore. The trial court then granted Dore’s motion for direct verdict.

Basic Home Care appeals both the trial court’s sequestration ruling and its grant of directed verdict in favor of Dore. For the following reasons, we affirm.

ISSUES

The following issues are raised by Basic Home Care for our review:

1. Whether the trial court erred in not requiring Elaine Dore to leave the courtroom until called as a witness as provided by the rules of sequestration.
2. Whether the trial court erred in granting the motion for directed verdict on behalf of Dore, finding that there was no written contract between Dore and Basic Home Care.

LAW AND ARGUMENT

SEQUESTRATION

At the beginning of the trial, Dore orally moved to sequester the witnesses. The witnesses were identified, sworn, and instructed by the trial court on the rules |sof sequestration. Counsel for Basic Home Care requested that Richard Pe-cantte and Omar Pecantte be allowed to remain in the courtroom. The trial court allowed only Richard Pecantte to remain in the courtroom as the corporate representative of Basic Home Care. When Dore’s counsel requested that Mrs. Dore remain in the courtroom, Basic Home Care objected to her being exempt from sequestration since she was not the named defendant. The trial court referred to the provisions of La.Code Evid. art. 615 and found that Mrs. Dore, who was the person to whom services were provided by Basic Home Care, should be allowed to remain in the courtroom to assist counsel for Dore during the witnesses’ testimony; thus, she was “essential to his defense.” Therefore, the trial court allowed Mrs. Dore to remain in the courtroom with defense counsel. We find no abuse of the trial court’s discretion in exempting Mrs. Dore from the rule of sequestration.

The relevant provision governing the sequestration of witnesses at trial is La.Code Evid. art. 615, which provides, in pertinent part, as follows:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
(1) A party who is a natural person.
(2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney.
(3) A person whose presence is shown by a party to be essential to the presentation of his cause such as an expert.
(4) The victim of the offense or the family of the victim.

DThe jurisprudence holds that “it is within the broad discretion of the trial court to determine whether to exempt a witness from its sequestration order.” Rhone v. Boh Bros., 01-270, p. 3 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 766 (citing State v. Simien, 95-1407, p. 8 (La.App. 3 Cir. 7/24/96), 677 So.2d 1138, 1143). As the trial court noted, Mrs. Dore was the individual to whom the services were provided by Basic Home Care. As such, it was she who would have knowledge of the facts and the truthfulness of the witnesses’ testimony necessary to assist defense counsel. Therefore, we find no abuse of the trial court’s broad discretion in his refusal to order the sequestration of Mrs. Dore. Nevertheless, this issue is rendered moot since this court affirms the trial court’s grant of directed verdict (motion for involuntary dismissal) as hereinafter set forth.

MOTION FOR INVOLUNTAJRY DISMISSAL

“The grant of an involuntary dismissal is subject to the manifest error standard of review.” Barraka v. Bowie, 04-738, p. 3 (La.App. 3 Cir. 11/10/04), 886 So.2d 1242, 1245 (quoting Kite v. Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271, 1274).

The procedural mechanism for an involuntary dismissal is provided by La.Code Civ.P. art. 1672, which provides, in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In the instant matter, following the presentation of evidence by Basic Home Care, Dore moved for a directed verdict (involuntary dismissal) on the grounds that Basic Home Care failed to prove the contract upon which its claim was based. The [fitrial court opined that the evidence established that an oral contract existed between Mrs. Dore and Basic Home Care, but that there was no evidence establishing the existence of a contract between Basic Home Care and William Dore. We agree.

Basic Home Care had the burden of proving the existence of the obligation upon which it filed suit. La.Civ.Code art. 1831. Additionally, although there was no legal requirement that the contract be in writing, when “the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.” La.Civ. Code art.1947. In the case at bar, the record contains a document entitled “EMPLOYMENT CONTRACTUAL AGREEMENT” which, according to the testimony, was faxed by Basic Home Care to Dore. Each time the name “Elaine” appears in the document, it is marked through and the name “William” is handwritten above. Consistent therewith, “she” is replaced by “he” in the agreement. The document appears to have been signed by Dore and was faxed back to Basic Home Care. Although Omar Pecantte testified that he and Richard Pecantte signed the document and faxed it back to Dore, the signed document was not admitted into evidence; it is not in the record; and Dore did not testify at the trial. Therefore, we find that the testimony and the document which was introduced were insufficient to prove that a contract was perfected between Dore and Basic Home Care. At best, Basic Home Care only proved an oral contact with Mrs. Dore for five days of service, which was undisputedly paid. Given Basic Home Care’s failure to prove the existence of a contract for twelve months service with Dore, written or otherwise, the trial court did not err in granting Dore’s motion for directed verdict (involuntary dismissal). Therefore, we affirm the judgment of the trial court.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion for directed verdict (involuntary dismissal) on behalf of William Dore is affirmed. | fiThe sequestration issue is moot.

Costs of this appeal are assessed against PI aintiff/App ell ant, Basic Home Care Services, Inc.

AFFIRMED.

      . Mrs. Dore is the mother of Defendant, Dore.

      . In his answer, Dore did not admit the existence of a contract, but plead that if a contract did exist, it was a written instrument and it was the best evidence of its contents.

      . Dore's motion for directed verdict is misla-bled. A directed verdict can only be had in jury trials pursuant to La.Code Civ.P. art. 1810. This case was not a jury trial, but instead a bench trial. Hence, Dore’s motion for directed verdict should have been a motion for involuntary dismissal pursuant to La. Code Civ.P. art. 1672(B).

      .Defendant, William Dore, was not present at trial.


author: GLENN B. GREMILLION, Judge.

text:
    STATE of Louisiana v. Craig FRANCOIS.
    No. 06-788.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.

      J. Phil Haney, District Attorney, New Iberia, LA, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark 0. Foster, Foster & Foster, Natchitoches, LA, for Defendant/Appellant, Craig Francois.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   GLENN B. GREMILLION, Judge.

hln this case, the defendant, Craig Francois, was convicted of one count of battery of a correctional facility employee, a violation of La.R.S. 14:34.5, and sentenced to serve eighteen months at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served since August 9, 2004. He is now before this court on appeal asserting that the evidence was insufficient to convict him of battery of a correctional facility officer, that the sentence imposed was excessive, and that the trial court erred in providing a defective definition of the crime when instructing the jury. For the following reasons, we affirm.

FACTS

On August 9, 2004, Defendant was in a cell block of a holding area at the St. Martin Parish Correctional Facility. Deputy Shelly Picard had arrived for her shift at 6:00 a.m. and informed the warden, Helen B. Wiltz, that since her arrival, Defendant had been banging on the door and complaining that he should be released. Warden Wiltz instructed Deputy Picard to get Defendant out of his cell block and bring him to her office. Defendant was not shackled or handcuffed at the time he entered Warden Wiltz’s office.

Warden Wife testified that Defendant was very agitated and was claiming that he was being illegally detained and should be released. Warden Wiltz said she informed him that he had been sentenced and that she had no authority to release him at that time. Due to his subsequent agitated behavior, Warden Wife believed she would have problems with Defendant if she returned him to his cell that | {¡housed twelve other inmates. Accordingly, she instructed Deputy Picard to take him to the special restraint room to allow him to calm down.

Deputy Gary Talley assisted Deputy Pi-card in bringing Defendant to the restraint room. The testimony reflects that Defendant did not cause any disturbance as he was escorted to the special restraint room, and he was not shackled or handcuffed and was free to move around the room. According to the witnesses, after he was placed in the room and the deputies had walked away, he began banging and kicking on the door and hollering and screaming. Although the deputies asked him to stop, Defendant continued to bang and kick on the door, causing disharmony among the other inmates. The evidence shows that eventually, the vibration from Defendant’s kicking and banging on the door caused a light bulb to fall from a fixture located inside or just outside the room. Because Defendant’s continued behavior was becoming a security issue, Warden Wife gave orders to restrain him with handcuffs and shackles and to put him in a restraint chair to prevent him from banging on the door.

Defendant was handcuffed by Deputy Talley through the hatch on the door and given the verbal command to go to the back of the room and face the wall. He complied. The deputies said that they entered the room and that Deputies Talley and Noel stood with Defendant while Deputies Picard and Kim Duplantis placed the restraint chair in the room. They said Defendant was asked to sit in it, and initially, he sat down. The testimony reflects that Defendant stood back up before the deputies could strap him in and he began swinging, kicking, and pushing even though he was handcuffed at the time. According to their testimony, during the scuffle, Deputy 13Talley was struck in the hand and Deputy Noel was struck in the stomach by Defendant. Deputies Noel and Talley began to wrestle Defendant to the floor. The deputies testified that in an attempt to subdue Defendant, Deputy Du-plantis sprayed Defendant with pepper spray.

Deputies Picard and Noel said that Captain Marjorie Alleman was also in the room with an electric shield. Those deputies, along with Deputy Talley said that before Captain Alleman was able to use the shield, Defendant pushed her against the wall with his feet, causing injury to her arm. Deputy Talley testified that once Defendant was restrained on the floor, Deputy Picard placed shackles on the Defendant’s ankles. The deputies were ultimately able to get Defendant into the chair.

Marjorie Boudreaux, a licensed practical nurse at the St. Martin Parish Sheriffs Office, testified that she evaluated the deputies, as well as Defendant, for injuries following the incident. She said that Captain Allemon had some swelling in her wrist and was subsequently sent to St. Martin Hospital for further evaluation. Nurse Boudreaux observed á scratch on Deputy Noel’s forehead and a scratch on Deputy Talley’s hand, to which she administered first aid.

Defendant testified and his version of the event was somewhat different from that of the warden and deputies. He said that when he was facing the wall, prior to the introduction of the restraining chair, a third person had him by the collar while Deputies Talley and Noel were on each side of him. According to Defendant, there was some confusion as to what the deputies wanted him to do. He explained that Deputy Talley was telling him to step back while Deputy Noel was telling to him stay | ¿against the wall. Meanwhile, he said that the person behind him was pulling on his jumper.

Defendant claimed that he was unaware that the restraining chair was in the room, and that when the back of his calves hit it, he did not know that it was the restraining chair. He testified that he began resisting because he had no idea what was going on and had become alarmed and fearful. He maintained that the deputies did not tell him that they were going to place him in the chair. Defendant also testified that Captain Alleman shocked him on the arm with the shock shield, so he attempted to grab the shield to prevent her from shocking him again. But Defendant somewhat recanted his statement, explaining that the shield made an electrical sound, but that it really did not hit him at any time.

Defendant maintained that he did not attempt to assault anyone at any time. According to him, he was merely defending himself from excessive force, and he denied hitting, pushing, or kicking the deputies. He also testified that he did not intend to hurt any of the deputies. On cross examination, he admitted that Deputy Noel may have been inadvertently kicked when Deputy Noel raised up his foot. He denied, however, hitting Deputy Talley, stating that Deputy Talley had grabbed him around the neck, and thus, he was unable to hit him.

ERRORS PATENT

We review all appeals in accordance with La.Code Crim.P. art. 920 for errors patent on the face of the record. After reviewing the record, we find there is one error patent. We will also discuss another issue that has brought concern to the courts of appeal throughout the state.

15We initially begin our discussion of errors patent by considering whether the trial court may have imposed an illegally lenient sentence by failing to impose a fine. The pertinent penalty provision mandates that the offender be fined not more than $1,000.00 and imprisoned for one to five years. La.R.S. 14:34.5(B)(2). The trial court did not impose a fine in the instant case. Because no minimum amount is set for the fine, it is questionable whether the failure to impose a fine renders the sentence illegally lenient. Both the Fourth and Fifth Circuit, Courts of Appeal have recognized a sentence as illegally lenient under similar circumstances. State v. Jackson, 04-728 (La.App. 5 Cir. 12/14/04), 892 So.2d 71, writ denied, 05-0548 (La.1/9/06), 918 So.2d 1033; State v. Collins, 04-751 (La.App. 5 Cir. 11/30/04), 890 So.2d 616; State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, writ denied sub nom., 02-0866, 02-0918 (La.11/22/02), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003), and State v. Adams, 99-2123 (La.App. 4 Cir. 1/24/01), 779 So.2d 113. We respectfully disagree with our colleagues on those courts.

In only one of the above-cited cases, Clemons, did the court actually remand for imposition of a fine. The appellate court found that the trial court erred in failing to impose a fine of “not more than ten thousand dollars,” as required by La.R.S. 14:95(E). Clemons, 811 So.2d at 1050. The defendant in Clemons sought review by a writ application to the supreme court, but that writ was denied. State v. Phillips, 02-866, 02-918 (La.11/22/02), 834 So.2d 972, cert. denied, 539 U.S. 918, 123 S.Ct. 2283, 156 L.Ed.2d 135 (2003), cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003). | RPissenting from the denial of the writ in that case, Chief Justice Calogero stated that he would grant the writ to review “the defendants’ contentions that an appellate court may not tamper with a district court’s failure to impose a mandatory fine unless the state is seeking relief by appeal or writ application.” Id. at 973. Justice Calogero also noted the following about the fine provided for in La.R.S. 14:95(E): “Whether this statute mandates a fine in some minimum amount is a question not entirely free from doubt. After all, a fine of zero qualifies as ‘not more than ten thousand dollars.’ ” Id. at 973, n. 1.

However, in Jackson, 892 So.2d 71, the fifth circuit recognized that the trial court erred in failing to impose a fine under La.R.S. 40:966, but declined to amend the defendant’s sentence. The court addressed the issue as follows:

The defendant received an illegally lenient sentence, because the trial court failed to impose a fine. The defendant was convicted of possession with intent to distribute marijuana, which requires a fine of not more than $50,000.00. LSA-R.S. 40:966(B)(2).
This Court has found that the trial court’s failure to impose a fine where the statute requires a fine “of not more than” a stated amount, as in LSA-R.S. 40:966(B)(2), to be an illegally lenient sentence. See, State v. Fletcher, 03-60, p. 9 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213,1222, and State v. Qutoum, 02-780, p. 11 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 333-334, writ denied, 03-595 (La.5/30/03), 845 So.2d 1059. While LSA-R.S. 40:966(B)(2) requires a term of imprisonment and a fine, the statute does not specifically set forth a minimum fine.
In State v. Washington, 03-1135, p. 11 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 984-985, this Court recognized its permissive authority to correct an illegally lenient sentence, despite the failure of either party to raise the issue in the trial court or on appeal, but refrained from amending the defendant’s sentence to impose a fine. The State notes in its brief that the trial court failed to impose a fine. However, the State did not object to the trial court’s failure to impose a fine. Therefore, we will refrain from amending the defendant’s sentence to impose a fine.

Id. at 77-78.

|7In another case, our colleagues on the fourth circuit declined to recognize an error patent in a similar circumstance. In State v. Albercht, 01-1664 (La.App. 4 Cir. 1/30/02), 809 So.2d 472, the fourth circuit noted in its error patent review that the trial court did not impose a fine for attempted possession of child pornography. The court noted that the penalty provision for the completed offense of possession of child pornography called for a fine of not more than ten thousand dollars, and the penalty for the attempted offense called for a fine of not more than five thousand dollars. After discussing the appellate court’s ability to correct an illegally lenient sentence, the fourth circuit concluded that no error patent existed:

In the present case the trial court has the discretion to determine the amount of the fine up to $5,000. Although a maximum fine is provided, the minimum fine is not delegated by the statute, La. R.S. 40:966(B)(2). Therefore, the trial court has discretion to impose a fine with no minimum up to $5,000. Where there is no minimum fine, the trial court did not abuse its discretion in deciding to omit the fine, and no error patent exists.

Id. at 477.

We agree with the esteemed Chief Justice and those cases cited above from the fourth and fifth circuits and decline to recognize the failure of the trial court to impose a fine as error patent. It is in the trial court’s vast discretion to impose a fine of $0. Therefore, we find that when the trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” an amount, it impliedly imposes a fine of $0, and is not an error patent.

Next, the trial court gave Defendant erroneous advice at sentencing as to the time period for filing post-conviction relief:

Because the Court has imposed a sentence of incarceration, it is my obligation to advise you that you have what are called post conviction |8relief rights. The sentence that I have just imposed against you will become final in five days. Thereafter, you will have two years within which to file any proceedings in writing in this Court to ask that any error be corrected in these proceedings, being your conviction or your sentence.

The minutes of sentencing indicate that the trial court advised Defendant that he had “two years from this date” to file any post conviction relief motions.

According to La.Code Crim.P. art. 930.8, the two-year prescriptive period begins to run when the defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Articles 914 and 922 provide for the time period for filing an appeal, as well as the time at which an appeal or supreme court judgment becomes final. According to the time periods set forth in those articles, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided that the defendant files neither an appeal or a motion to reconsider sentence. Thus, the trial court in the present case erroneously advised Defendant that the two-year prescriptive period for filing post-conviction relief would begin to run five days after the sentence was imposed. Accordingly, the trial court is directed to inform Defendant of the correct prescriptive period by sending appropriate written notice to Defendant within ten days of the rendition of this opinion. Additionally, the trial court is instructed to file written proof of the notice in the record of these proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

SUFFICIENCY OF EVIDENCE

In his first assignment of error, Defendant argues that the evidence was insufficient to convict him of battery of a correctional facility officer. More ^specifically, Defendant contends that the evidence does not show that battery was committed.

The analysis for a claim of insufficient evidence is well-settled:

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.

The elements of the crime at issue are set forth in La.R.S. 14:34.5(A)(1), which reads:

Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.

Defendant argues that because the jury found him not guilty of battery of Deputies Noel and Talley, the first deputies to attempt to subdue him, the evidence contains a judicial finding that his actions did not constitute a battery prior to Captain Alleman’s contact with him. From that assertion, he concludes that there is a judicial finding of no intent to batter the deputies, and that his actions consisted of resisting the deputies, not battery. He adds that battery of a correctional facility employee is |ina general intent crime. As such, Defendant argues that he was trying to get away from a painful substance, the pepper spray, and avoid an electric shock from the shield. Accordingly, he maintains that he did not have the wherewithal to have the general intent to batter Captain Alleman.

Specific intent is not an element of battery of a correctional facility employee. See La.R.S. 14:34.5 As noted in State v. Elliot, 00-2637, p. 4 (La.App. 1 Cir. 6/22/01), 809 So.2d 203, 205-06 (footnote omitted):

Battery of a correctional facility employee is a general intent, rather than specific intent, crime. The offense requires neither the infliction of serious bodily harm nor the intent to inflict serious injury.

Further, the supreme court in State v. Kennedy, 00-1554, p. 10 (La.4/3/01), 803 So.2d 916, 923, stated, “General criminal intent exists ‘when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.’ La.Rev. Stat. 14:10(2).”

After considering the totality of the circumstances, we find that the evidence was sufficient to meet the standard of proof beyond a reasonable doubt that Defendant had the general intent, to commit, the battery of a correctional facility employee, namely Captain Alleman. There is no dispute that Defendant knew that Captain Alleman was a correctional facility employee acting in the performance of her duty, that she was injured as a result of Defendant’s actions and that she did not consent to same. Thus, to determine whether Defendant intended to batter Captain Alle-man, as opposed to simply resisting the restraint chair, the record must show that luhe must have adverted to the prescribed criminal consequences, the battery of Captain Alleman, as reasonably certain to result from his actions.

Warden Wiltz testified that when the deputies tried to put Defendant in the restraint chair, he “went crazy. When I say crazy, he just started swinging, kicking, pushing.” Deputy Picard also testified that Defendant started kicking, pushing, swinging his arms, and fighting the deputies. With regard to Defendant’s response to Captain Alleman and the electric shield, Deputy Picard stated that Captain Alleman was unable to utilize the shield and that Defendant had pushed the shield, throwing Captain Alleman against the wall. Deputy Picard described the violence of Defendant’s physical actions toward Captain Alleman as follows:

In my experience, this was the worse incident that I’ve had to, to try to, to get an inmate to comply. He had, he would not listen to any verbal command to stop resisting or to just stop and, and just do as we say. You know, we were giving him verbal orders and I’ve never had anyone resist so, so much against me in my, my eight, nine years there.

Deputy Noel testified that he saw the Defendant pick up his feet and push the shield and Captain Alleman into the wall.

In Captain Alleman’s description of the event, she stated that she was unable to use the shield because one or two deputies were with Defendant and if they hit it everyone would lose “their coherence.” She testified that Defendant was pushing with his foot and that she “got pushed back in the corner with the shield which caused me to be twisted and I got, messed up my arm.” As a result she had to be checked out in St. Martin Hospital where it was determined that she had a sprained arm, and she had to wear a brace for a while.

| ^Considering the violent nature of Defendant’s actions as described by the deputies and Captain Alleman, we find that the jury could have reasonably found beyond a reasonable doubt that he must have known that Captain Alleman would be battered as a result of his actions. For the above reasons, this assignment of error lacks merit.

EXCESSIVE SENTENCE

In his second and third assignments of error, Defendant argues that he was sentenced for a crime of which he was not convicted, and thus, his sentence is excessive. The bill of information charged Defendant with three counts of battery of a correctional facility employee, a violation of La.R.S. 14:34.5. However, Defendant contends that La.R.S. 14:34.5 contains two offenses, a general misdemeanor charge and a felony charge of battery of a correctional facility employee, and complains that the bill does not identify the offense for which he was charged. Further, he asserts that the jury was instructed as to the misdemeanor offense and found him guilty of same. As such, Defendant maintains that the jury found him not guilty of the felony offense since its finding, as instructed, on the lessor offense acquits him of the greater offense.

In its opposition, the State argues that the jury charge included only relevant portions of the crime and statute under sub-part (A). Further, the State maintains that only the sentencing provisions as they relate to Defendant’s status as an inmate or non-inmate are included in subpart (B). Accordingly, the State asserts that subpart (B) need not be charged to the jury and that the definition of the crime read to the jury applies to both La.R.S. 14:34.5(B)(1) and (B)(2).

| ^Louisiana Revised Statutes 14:34.5 reads:

A. (1) Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.
(2) For purposes of this Section, “correctional facility employee” means any employee of any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.
(3) For purposes of this Section, “battery of a correctional facility employee” includes the use of force or violence upon the person of the employee by throwing feces, urine, blood, saliva, or any form of human waste by an offender while the offender is incarcerated and is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.
B. (1) Whoever commits the crime of battery of a correctional facility employee shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.
At trial, the jury was charged as follows:
Battery on a correctional facility employee is defined as follows. I’m sorry, the defendant is charged with three counts of battery on a correctional facility employee. The alleged victims are (1) Captain Marjorie Alleman, (2) Deputy Lee Allen Noel, and (8) Deputy Gary Tally. Battery on a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty. A correctional facility employee means any employee of any jail, prison, correctional facility, juvenile | ^institution, temporary holding center, halfway house or detention facility.
Sentencing is not a function of the jury. It is the duty and responsibility of the Court. However, in order to assure that you are fully advised of the law, I have chosen to inform you of the penalty provided by the Statute. If the defendant is found guilty of battery on a correctional facility employee, the Court shall impose the fine of not more than one thousand dollars and imprison the defendant, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.
Thus, in order to convict a defendant of battery on a correctional facility employee you must find (1) that the defendant intentionally committed a battery without the consent of the victim, and (2) the defendant had reasonable grounds to believe the victim was a correctional facility employee acting in the performance of his duties. If the State has proven each and every one of these essential elements of the crime beyond a reasonable doubt, it is your duty to return a verdict of guilty.

It is clear that the jury charge reflects that the jury was instructed on the elements of the crime as set forth in La.R.S. 14:34.5(A), as well as the penalty provision for an inmate as provided in La.R.S. 14:34.5(B). We disagree with Defendant that there are two different offenses set forth in La.R.S. 14:34.5. Rather there are two possible penalties, depending on the custody of the offender. The trial court was not required to instruct the jury on the sentencing provisions, but chose to fully advise the jury as to the penalty provision for inmates found in La.R.S. 14:34.5(B)(2). The jury was not instructed as to the penalty provision for a non-inmate or what Defendant refers to as a misdemeanor offense. Likewise, there is no evidence in the record which supports his argument that the jury found him guilty of a misdemeanor charge.

Additionally, as provided in La. Code Crim.P. art. 801(C),

| if¡A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

Because Defendant did not object to the jury charge, he may not raise the alleged error for the first time on appeal.

With regard to Defendant’s excessive sentence claim, he did not make an oral motion for reconsideration of his sentence or file a written motion to reconsider his sentence. According to La.Code Crim.P. art. 881.1, failure to make or file a motion to reconsider sentence precludes a defendant from raising on appeal any objection to the sentence. When the record does not indicate that any objection was made regarding sentencing, the defendant is precluded from appealing his sentence. State v. Williams, 01-998 (La.App. 8 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-0578 (La.1/31/03), 836 So.2d 59. Although Defendant’s sentencing claim is barred pursuant to Article 881.1, we will review his sentence for bare excessiveness in the interest of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-0029 (La.10/14/02), 827 So.2d 420.

As previously stated, the possible sentence for an inmate convicted of battery of a correctional facility employee is one to five years. Thus, Defendant’s sentence of eighteen months was much less than the maximum sentence allowed and only six months greater than the minimum sentence of one year. Additionally, he did not receive a fine as mandated by La.R.S. 14:34.5(B)(2). As such, we cannot say that Defendant’s sentence of eighteen months is excessive as it does not shock our sense of justice. Accordingly, this assignment of error lacks merit.

I ^CONCLUSION

Defendant’s conviction and sentence is affirmed. However, the trial court is directed to inform him of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to him within ten days of the rendition of this opinion. Additionally, the trial court is further instructed to file written proof of such notice in the record of these proceedings.

AFFIRMED WITH INSTRUCTIONS.

      . Defendants, Clemons and Phillips, sought writs in the same writ application.


author: PICKETT, Judge.

text:
    S & R HOTELS, L.L.C. v. CALCASIEU PARISH SCHOOL BOARD SALES & USE TAX DEPARTMENT, et al.
    No. 06-918.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.

      Benjamin Wakefield Mount, Bergstedt & Mount, Lake Charles, LA, for Plaintiff-Appellant, S & R Hotels, L.L.C.
    Carl Eston Singletary Jr., Scofield, Gerard, Singletary & Pohorelsky, Russell Joseph States Jr., States, Fontenot, Lav-ergne & Lutz, Lake Charles, LA, for Defendant-Appellee, Calcasieu Parish School Board.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

liThe plaintiff, S & R Hotels, L.L.C., appeals a judgment of the trial court granting the Calcasieu Parish School Board Sales & Use Tax Department’s motion for summary judgment.

STATEMENT OF THE CASE

S & R Hotels, L.L.C., operates a Richmond Suites Hotel (the Hotel) in Calcasieu Parish. Pursuant to an ordinance passed by the Southwest Louisiana Convention and Visitors Bureau, there is a 3% occupancy tax imposed on all hotel rooms in Calcasieu Parish. The Southwest Louisiana Convention and Visitors Bureau is authorized to collect this tax pursuant to La.R.S. 33:4574.1.1. The Calcasieu Parish School Board (the School Board) is the tax collector for the Southwest Louisiana Convention and Visitors Bureau.

In November 2003, the School Board conducted an audit of the Hotel, covering January 2000 through December 2002. The School Board determined that the Hotel had failed to pay the full amount due for the occupancy tax, alleging that there was a deficiency of $34,781.29. The School Board assessed the Hotel with the deficiency plus interest of $11,947.35 and penalties of $8,582.55. The Hotel paid the assessment under protest and filed a Petition for Refund of Tax Paid Under Protest on April 15, 2004. The Hotel argued that it was not required to collect the occupancy tax of 3% on that part of the room rental package which was used to pay for a complimentary breakfast, club room beverage, and in-room coffee.

Following discovery, both the Hotel and the School Board filed motions for summary judgment. Following a hearing, the trial court granted the motion for summary judgment filed by the School Board, finding that the Hotel had failed to pay | ¡¡the proper amount. The trial court also awarded attorneys fees to the School Board. The trial court judgment was signed on May 19, 2006. The Hotel now appeals.

ASSIGNMENTS OF ERROR

The Hotel asserts three assignments of error:

1. The trial court erred in failing to find that the Southwest Louisiana, Calcasieu Parish, Louisiana, Occupancy Tax Ordinance No. 1 of 1996 expands the language contained in the state statute that provides for a tax on “occupancy of the hotel room.”
2. The trial court erred in finding that S & R Hotels, L.L.C. must collect occupancy tax on the portion of the room/suite “package” allocated for the cost of daily breakfast, club room beverages and in-room coffee.
3. The trial court erred in failing to find that S & R Hotels, L.L.C. is entitled to a refund of the amount of the tax, interest and penalties paid under protest together with interest thereon from the date of the payment and at the rate provided by law.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The issue in this appeal is rather straightforward. We must determine if the Hotel must collect the occupancy tax for that part of the room package cost which pays for the breakfast, club room beverages, and in-room coffee. In this case, the Hotel charged between $69 and $99 for a room, but failed to collect the 3% occupancy tax on $7.50 of that amount, which it claims was a charge not for the | ^occupancy of the room, but a charge to pay for the breakfast, drinks, and coffee. The staff of the hotel testified by deposition and affidavit. They admitted that only in limited circumstances could a hotel guest choose not to pay the $7.50 charge, usually where the hotel was under contract with an airline or other group. Otherwise, all guests of the Hotel were charged the $7.50 without the chance to choose not to receive the breakfast, beverage, or in-room coffee.

The Southwest Louisiana Convention and Visitors Bureau ordinance which mandates collection of the occupancy tax states, in pertinent part:

There hereby is levied, from and after January 1, 1996, a tax on the occupancy of hotel rooms, motel rooms and overnight camping facilities at the rate of three (3) percent of the Sales Price of the hotel room, motel room or overnight camping facility.

The Sales Price is defined as “the gross price charged by a Dealer for a Hotel room or overnight camping facility.” Thus, under the clear terms of the parish ordinance, the Hotel is required to collect the occupancy tax on the $7.50.

The Hotel argues that the parish ordinance conflicts with the statute authorizing collection of the occupancy tax in that the statute does not define “Sales Price.” In 2002, Louisiana Revised Statute 33:4574.1-A stated:

A. (1) For the purposes set forth in Subparagraph (A)(6)(c) of this Section, a commission created pursuant to R.S. 33:4574(A)(2) is authorized to levy and collect a tax upon the occupancy of hotel rooms, motel rooms, and overnight camping facilities within the jurisdiction of the commission. Such tax shall not exceed the following percentages of the rent or fee charged for such occupancy:
(y) Southwest Louisiana Convention and Visitors Bureau, three percent.

|4The statute does allow the taxing authority “the right to provide in the resolution or ordinance necessary and appropriate rules and regulations for the imposition, collection, and enforcement of the tax.”

Under the facts of this case, we cannot say that the implementation of the ordinance exceeds the taxing authority granted in La.R.S. 33:4574.1-A.

This matter is clearly distinguishable from S & R Hotels v. Fitch, 25,690 (La.App. 2 Cir. 3/30/94), 634 So.2d 922. In Fitch, the hotel successfully argued that it did not have to pay local sales taxes to the suppliers of the food for the breakfast, beverages, and in-room coffee it provided to its guests, because the guests, not the hotel, were the end purchaser of those items, as evidenced by the $7.50 charged to each room to cover these items. The issue now before us is that the Hotel charges the $7.50 to occupy the room without a chance to “opt out” of the charge. Furthermore, the ordinance clearly requires collection of the tax on the gross price, and the statute authorizes the taxing authority to set rules for the collection of the tax.

We agree that the 3% occupancy tax imposed by the Southwest Louisiana Convention and Visitors Bureau is owed on the entire amount charged by the Hotel, including the $7.50 charged for the amenities. Because payment for the extra amenities is required in order to occupy the room, the amount charged for those amenities is taxable under the local ordinance. The judgment of the trial court is affirmed. Costs of this appeal are assessed to S & R Hotels, L.L.C.

AFFIRMED.

      . Louisana Revised Statute 33:4574.1-A has since been redesignated La.R.S. 33:4574.1.1.


text:
    Carey DAVIS v. HARRAH’S LAKE CHARLES, L.L.C., aka Players Lake Charles, L.L.C., et al.
    No. 06-1023.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.

      Robert J. Williams, Robert J. Williams, LLC, Lake Charles, Louisiana, for Plaintiff/Appellant, Carey Davis.
    Michael J. McNulty, III, Lake Charles, Louisiana, for Defendant/Appellee, Har-rah’s Lake Charles, L.L.C.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_JjIn this slip and fall case on outside stairs of a casino boat, Plaintiff, Carey Davis (Davis), appeals the jury verdict in favor of Defendant boatowner, Harrah’s Lake Charles, L.L.C. (Harrah’s), finding that the stairwell did not present an unreasonable risk of harm. Davis also appeals the denial of his motion for judgment notwithstanding the verdict (JNOV) and/or motion for new trial. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Davis testified that on the evening of Saturday, June 9, 2001, just before midnight, he received a telephone call from his mother informing him that she, his sister, and his aunts were going out to eat and wanted him to meet them at the casino. It had rained that evening. Davis stated that he assumed they were at Harrah’s, so he went there to meet them. Davis further testified that when he arrived at Har-rah’s, he decided to call his friend, who worked at Harrah’s, to ask whether she had seen his family members in the casino’s buffet area. However, when he tried to make the cellular telephone call, he could not receive a cellular signal. He then decided to go onto the boat. Instead of going into the casino, he stated that he walked outside to the bow, or front of the boat, in an effort to get a cellular signal. Davis testified that he then walked up two flights of stairs and was finally able to call his friend upon reaching the second level. After successfully completing his cellular telephone call, Davis testified that he attempted to enter the casino through the doors located on the second floor, but that the doors would not open. Davis stated that he then proceeded to descend the same stairs that he had earlier ascended. Davis testified that he slipped and fell down to the first landing, which separated two fights of stairs, and that he did |2not hurt himself as a result of this fall. Davis further testified that he got up and looked to see if he slipped on something; however, aside from the stairs being wet because it had rained earlier that day, he saw nothing. With cellular telephone in hand, Davis stated that he then grabbed the handrail and proceeded to descend the final level of stairs. Davis testified that he slipped and fell a second time, this time losing his cellular telephone and landing at the bottom of the stairs on the ground level at the bow of the boat. Davis further testified that two people, the captain and a deckhand, witnessed his second fall. Davis stated that because he did not notice any broken bones, he refused medical treatment and, after an accident report was prepared, he went home without ever finding his mother and other relatives. Davis also testified that the following morning he began experiencing pain in his neck and back which prompted him to seek treatment at St. Patrick Hospital’s emergency room in Lake Charles, Louisiana.

On June 7, 2002, Davis filed suit against Harrah’s, alleging that he suffered injuries on June 9, 2001 while descending stairs aboard Harrah’s river boat casino, Star, in Lake Charles, Louisiana. In his petition, Davis alleges, in pertinent part, that “[he] was a patron aboard the vessel Star, owned and operated by [Defendants herein, when suddenly and without warning, he slipped and fell down a flight(s) of stairs (due to the slippery condition of said stairs) causing injuries and damages.” Davis further alleges that he slipped and fell twice while descending the stairs. Additionally, Davis alleges that the accident was due to the negligence and/or strict liability of Harrah’s in “leaving or allowing said stairs to remain in a slippery condition and not taking precautions to safeguard patrons in the area....”

A jury trial was held from November 29 through December 2, 2005. At the | ^conclusion of the trial, the jury returned a verdict in favor of Harrah’s finding that the stairs in question did not present an unreasonable risk of harm to its patrons. A judgment pursuant to the jury verdict was signed on January 5, 2006. On March 3, 2006, the trial court denied Davis’s motion for JNOV and, in the alternative, motion for new trial. Davis appeals.

ASSIGNMENTS OF ERROR

In his two assignments of error, Davis asserts that the trial court erred in denying his motion for JNOV, or alternatively, in denying his motion for a new trial.

LAW AND DISCUSSION

Louisiana Civil Code Article 2317 provides in part: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our custody. This however, is to be understood with the following modifications.” Louisiana Civil Code Article 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

To recover for damages under the provisions of La.Civ.Code art. 2317.1, a plaintiff must prove “(1) the thing was in the defendant’s custody and control; (2) the thing contained a defect which present ed an unreasonable risk of harm to others; and (3) the defendant knew or should have known of the defect.” Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 05-1285, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d 703, 705-06, writ denied, 06-1120 (La.9/1/06), 936 So.2d 206 (emphasis added).

\ Judgment Notwithstanding the Verdict (JNOV)

Louisiana Code of Civil Procedure Article 1811 provides for the use of a motion for JNOV. The criteria applicable to our review of the denial of Davis’s motion for JNOV was set forth by the Louisiana Supreme Court in Peterson v. Gibraltar Sav. and Loan, 98-1601, pp. 5-6 (La.1999), 733 So.2d 1198,1203:

JNOV is warranted only when the facts and inferences, viewed in the light most favorable to the party opposing the motion, is so strongly |fiand overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986). Refusal to render a judgment notwithstanding the verdict (JNOV) can only be overturned if it is manifestly erroneous. Delaney v. Whitney National Bank, 96-2144, 97-254 (La.App. 4 Cir. 11/12/97), 703 So.2d 709[,] writ denied, 98-213 (La.3/20/98), 715 So.2d 1211.

Therefore, the standard governing our review of the trial court’s denial of Davis’s motion for JNOV is that of manifest error. Id.

Whether Harrah’s exposed its patrons to an unreasonable risk of injury or harm is a question of law to which the jury answered “no.” Davis filed a motion for JNOV claiming that the jury’s decision was against the law and the evidence. Davis contends that the jury erred by failing to find that the stairs in question presented an unreasonable risk of harm. Davis further contends that the trial court erred in refusing to grant his motions for JNOV, or in the alternative, a new trial.

After a thorough review of the record, we find that the trial court did not err in denying the motion for JNOV. The jury’s verdict was reasonable in light of the evidence presented at trial. We find that the record contains sufficient evidence to support the jury’s verdict and the trial court’s denial of Davis’s motion for JNOV.

Davis contends that the testimony of his expert, Jason English (English), was un-contradicted and, if accepted as true, reasonable minds could not differ in reaching the conclusion that Harrah’s was negligent. English was accepted by the court as an expert in the area of safety engineering. In summary, English opined that the stairs at issue were unreasonably dangerous due to their short and inconsistent tread depths. English testified that the stairs at issue were not in compliance with standards for | (¡vessels set forth by the United States Coast Guard (Coast Guard) because the tread depths for the stairs in question were shorter than those required; thus, a person traversing those stairs would be exposed to an unreasonable risk of harm. Davis also contends that English’s testimony was uncontradicted since Harrah’s expert, Eric Houin (Houin), simply offered his opinion that the stairs were not against the Coast Guard’s accepted standards and Houin failed to offer any supportive documentation.

Houin, Harrah’s expert, was accepted by the court as an expert in the field of ship design, ladder safety, and naval engineering. Houin testified that prior to a vessel being allowed to set sail, stairwell plans must be provided to the Coast Guard for approval. Houin testified that the stairs in question were accepted and/or approved by the Coast Guard upon its inspection and approval of the initial plans for the vessel. Hence, Houin contends that English’s opinion that the stairs were not in compliance with coast guard regulations was wrong. Houin testified that the stairs incorporated non-skid Wooster steps which contain an abrasive surface. Houin testified that the stairs contained handrails which assist in balance, provide support, and serve to prevent injury. Houin opined that the stairwells, or the incline ladders when referring to vessels, meet Coast Guard regulations because the Coast Guard approved the stairs when the vessel’s plan were initially presented to the Coast Guard prior to the vessel’s commencement of operations. Houin opined that Davis’s fall occurred simply because of Davis’s failure to use ordinary care while descending the stairs. Thus, the experts have rendered conflicting testimony and opinions.

Harrah’s presented the testimony of Captain Danny Jones (Captain Jones). Captain Jones testified at trial that he worked for Harrah’s for eight years during which time the Coast Guard had never cited Harrah’s for a safety violation with 17respect to the stairs in question. Further, Captain Jones testified that there were no other accidents on the stairs.

Harrah’s presented the testimony of Chief Engineer Roy Ellison (Ellison). Ellison testified at trial that he worked for Harrah’s for six years, and he was near the stairs in question when Davis landed at the bottom of the stairs on the ground level at the bow of the boat. He stated that he first heard Davis’s cellular telephone hit the deck, or ground, before he saw Davis laying on the ground at the bottom of the stairs. Ellison further testified that he personally traversed the stairs ten or twelve times a week and never encountered a problem.

Finally, Harrah’s deckhand, Mac Les-trappes (Lestrappes), testified at trial that he worked for Harrah’s for nine years. Lestrappes testified that one of his responsibilities as a deckhand was to paint the stairs aboard the boat and cover the wet paint with sand to ensure that the stairs were not slippery.

In ruling on Davis’s motion for JNOV, the trial court was required to determine whether the evidence viewed in the light most favorable to Harrah’s pointed so strongly and overwhelmingly in favor of Davis that reasonable persons could not arrive at a contrary verdict on the issue of whether Harrah’s engaged in negligent conduct, and whether the stairs at issue were an unreasonably dangerous condition or created an unreasonable risk of harm. The trial court, in its oral reasons for denying Davis’s motion for JNOV, stated that “if there’s any evidence at all that the jury could have used to make their decision, then I can’t — you know, I can’t undo what they’ve done, or I can’t substitute my judgment for theirs. And I think that’s where I am at this point.” We agree. Given the testimony and other evidence presented herein, there was a reasonable basis for the jury’s finding, and we are not ^convinced that reasonable persons could not arrive at any verdict other than one in favor of Davis. We further recognize that the trier of fact is in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony. Robin v. Allstate Ins. Co., 03-1009, 03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). Thus, we find that the trial court’s denial of Davis’s motion for JNOV was not manifestly erroneous.

Motion for New Trial

Louisiana Code of Civil Procedure Article 1972(1) provides, in pertinent part, that “[a] new trial shall be granted, upon contradictory motion of any party ... [wjhen the verdict or judgment appears clearly contrary to the law and the evidence.” This court stated in Williams v. W.O. Moss Regional Medical Center, 05-022, pp. 4-5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1150, 1153-54:

“The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion.” Martin [v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01) ], 784 So.2d 627. In order to apply this standard, “[w]e are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial.” Davis v. Wal-Mart Stores, Inc., 00-445, pp. 11-12 (La.11/28/00), 774 So.2d 84, 93-94. Though the “[trial] court has much discretion [in determining whether to grant a new trial] ...., this court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse.”
Lamb v. Lamb, 430 So.2d 51, 53 (La.1983). Thus, although “[t]he scales are clearly tilted in favor of the survival of the jury’s verdict, the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Davis, 774 So.2d at 94.
The Louisiana Supreme Court stated in Martin, 784 So.2d at 637, “[A] jury verdict cannot be set aside on that [sic] the grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence.” This is a case in which there was a dispute among the experts as to whether the defendants breached the applicable standard of care. “It is the duty of the jury to evaluate the credibility of each witness, and come to conclusions as to the facts based Ron these evaluations.” Campbell v. Tork, Inc., 03-1341, p. 11 (La.2/20/04), 870 So.2d 968, 975.

Our review of the record supports the jury’s determination that the stairs did not present an unreasonable risk of harm. While a trial court does have discretion in granting a new trial, and is entitled to draw its own inferences and conclusions from the evidence as well as evaluate the credibility of the witnesses, the trial court may not interfere with a jury verdict with which it simply disagrees when that verdict is based on a fair interpretation of the evidence. Williams, 903 So.2d 1150. In this case, the jury heard substantial testimony to lead it to conclude that the stairs in question did not present an unreasonable risk of harm. We find the jury’s verdict is clearly supportable by a fair interpretation of the evidence; therefore, we find no abuse of discretion in the trial court’s denial of Davis’s motion for a new trial.

DECREE

The judgment of the trial court denying Davis’s motion for JNOV and/or motion for new trial is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Carey Davis.

AFFIRMED.

COOKS, J., concurs in the result only.

      . Louisiana Code of Civil Procedure Article 1811 provides:
      A. (1) Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days, exclusive of legal holidays, after the jury was discharged.
      (2) A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
      B. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict. If no verdict was returned, the court may render a judgment or order a new trial.
      C. (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
      (2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
      (3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
      D. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972 and 1973. The motion for a new trial shall be filed no later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of the signing of the judgment notwithstanding the verdict under Article 1913. The motion shall be served pursuant to Articles 1976 and 1314.
      E. If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.
      F. The motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues.


author: AMY, Judge. GENOVESE, J.,

text:
    STATE of Louisiana v. J.L.
    No. 06-1031.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.

      Douglas L. Hebert, Jr., District Attorney, Sherron Ashworth, Assistant District Attorney, Oberlin, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, J.L.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe defendant was charged by bill of information with aggravated incest in violation of La.R.S. 14:78.1, contributing to the delinquency of a juvenile in violation of La.R.S. 14:92, and simple battery in violation of La.R.S. 14:35. He pled not guilty. Following a bench trial, the defendant was found guilty on all counts and sentenced to twelve years at hard labor for aggravated incest, two years at hard labor for contributing to the delinquency of a juvenile, and six months for simple battery. The sentences were ordered to run concurrently. The trial court denied the defendant’s motion for reconsideration of sentence. The defendant appeals the sufficiency of the evidence. For the following reasons, we affirm as amended and remand with instructions.

Factual and Procedural Background

The record indicates that the defendant, J.L., married B.L. in February 2004. The couple lived with their two minor children as well as B.L.’s two children from a previous relationship. Several months later, B.L.’s fourteen year-old daughter, A.E., alleged that the defendant sexually molested her on three occasions in December 2004.

According to A.E., the first incident happened one Friday morning after B.L. had left for work. A.E. testified that the defendant came into her room around five a.m. and “said to go in his room and to listen for the alarm.” A.E. stated that she went to the bedroom the defendant shared with her mother and climbed into their bed. A.E. testified that she was sleeping on her stomach but awoke when she felt the defendant feeling on her “butt.” She explained that the defendant’s hands were initially on the outside of her clothes, but then he moved them inside her panties. According to A.E., |2the defendant subsequently moved her leg to the side and inserted a finger into her vagina. She testified that he rolled her onto her back, got on top of her, and rubbed his penis against her vagina. A.E. further testified that she “kind of pulled away and he told me to [sic] don’t worry, that he wouldn’t stick it in.”

A.E. stated that after the defendant ejaculated, he did not say anything to her. When the alarm sounded, she went to shower in her bathroom. A.E. testified that she then went into her bedroom, locked the door, and began to dress. She further testified that the defendant “came knocking [on] the door and [she] had opened it and he told [her] not to think of him as a monster and [that she] shouldn’t tell anybody.” A.E. explained that she did not tell anyone because she was afraid.

According to A.E., the second incident happened approximately a week later. She was sleeping in her bed when she felt the defendant’s hand going down her pajama pants. A.E. stated that the defendant was lying next to her in the bed and that he had reached inside her pants and touched her butt. She testified that “[w]hen [she] had kind of pushed him off of [her], he asked [her] did [she] want him to leave and [she] said, Tes.’ And then he got up and left.”

A.E. stated that the third and final incident occurred approximately three weeks after the first incident. A.E. remembered that B.L. had left for work, and she was in the living room watching television. A.E. testified that the defendant asked her if she knew how to perform oral sex “and if [she] could take care of him. And he had told [her] that [her] mama wasn’t showing him enough attention in things like that.” A.E. stated that she told the defendant “no.” She then went into her room and locked the door. She stated that she was afraid.

IsThe record indicates that in January 2005, A.E. returned to school from the holiday break. According to a witness, AJE.’s friend, she walked into the school bathroom one day and saw A.E. crying. When she asked A.E. what was wrong, A.E. told her that “her step-dad was touching her [in] places where she didn’t want to be touched.” The witness testified that A.E. told her that “she didn’t want to tell her mom because she didn’t want to ruin her mom and [the defendant’s] marriage.” She stated that she reported the information to the school counselor. The authorities were contacted, and after an investigation, the defendant was arrested.

The defendant was charged with and found guilty of aggravated incest, contributing to the delinquency of a juvenile, and simple battery. He was sentenced to twelve years at hard labor for aggravated incest, two years at hard labor for contributing to the delinquency of a juvenile, and six months for simple battery. The sentences were ordered to run concurrently. The defendant filed a motion for reconsideration of sentence, which the trial court denied. The defendant has perfected this appeal, arguing that the “State failed to present sufficient evidence to support the verdicts[.]”

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 one error patent in need of correction.

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to a person who is convicted of or pleads guilty to a sex offense, including aggravated incest. Here, the trial court did not deny the defendant diminution |4eligibility; thus, the defendant’s sentence for aggravated incest is illegally lenient. State v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244. “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.” Id. at 1247. Accordingly, we amend the defendant’s sentence for aggravated incest to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537(A). The trial court is instructed to make a notation in the minutes reflecting the amendment.

Sufficiency of the Evidence

In his sole assignment of error, the defendant contends that “the evidence presented was insufficient to support the verdicts[.]” The defendant characterizes A.E.’s testimony as “inconsistent and equivocal” and argues that “the essential elements of the crimes ... were not proven beyond a reasonable doubt.”

In State 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.

Aggravated Incest

Louisiana Revised Statutes 14:78.1 provides in pertinent part:

|SA. 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, sexual battery, second degree sexual battery, carnal knowledge of a juvenile....
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

Louisiana Revised Statutes 14:43.1 states in part:

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

After reviewing the record, we conclude that there is sufficient evidence to support the defendant’s conviction for aggravated incest. We note that A.E. was fourteen years old when these incidents occurred. At that time, the defendant was married to B.L. as evidenced by the couple’s marriage certificate, which was entered into evidence. Therefore, these elements of the offense are satisfied.

In addition to the testimony of A.E. and the witness who testified, the State also presented the testimony of Bernie McFarland, a child protection investigator with the Office of Community Services (OCS). McFarland stated that the authorities turned the investigation over to OCS. After speaking with A.E. and the school counselor, McFarland scheduled A.E. for a forensic interview. McFarland stated that she | ¿watched in another room as A.E. was being interviewed. McFarland testified that the “agency did validate sexual abuse of [A.E.], which means sexual contact or interaction with [A.E.] by her step-father[.] And it included touching her vaginal area and buttocks and digital penetration of her vaginal opening and stimulated [sic] intercourse by rubbing his penis against her vaginal area.”

The defendant’s actions constitute sexual battery pursuant to La.R.S. 14:43.1(A)(1) and La.R.S. 14:78.1(B)(1) in that he used parts of his body to touch A.E.’s genitals. Additionally, the evidence demonstrates that this act was done with the intent to arouse or satisfy the defendant, which is prohibited under La.R.S. 14:78.1(B)(2).

Furthermore, there is nothing in the record that supports the defendant’s assertion that A.E.’s testimony was inconsistent and, therefore, not credible. Despite the lack of medical or physical evidence, we find that A.E.’s testimony alone is sufficient to establish the elements of the sexual offense. See State v. Schexnaider, OS-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450. Therefore, we find that in viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of aggravated incest proven beyond a reasonable doubt.

This assignment is without merit.

Contributing to the Delinquency of a Juvenile

Louisiana Revised Statutes 14:92 provides in pertinent part:

A. Contributing to the delinquency of juveniles is the intentional enticing, aiding, soliciting, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to:
17(7) Perform any sexually immoral act.

After a review of the record, we conclude that there is sufficient evidence to support the defendant’s conviction. As stated above, A.E. was fourteen years old when the incidents occurred, and the defendant was over the age of seventeen. Moreover, by asking his minor step-daughter to perform oral sex on him, the defendant was soliciting A.E. to perform a sexually immoral act. Accordingly, we find that a rational trier of fact could have found the defendant guilty of contributing to the delinquency of a juvenile. See, e.g., State v. Roger, 616 So.2d 830 (La.App. 3 Cir.), writ denied, 623 So.2d 1303 (La.1993) (where the defendant was convicted of contributing to the delinquency of a juvenile for enticing his daughter to expose her breasts and vagina to him.); State v. Reed, 512 So.2d 588 (La.App. 3 Cir.1987) (testimony that the defendant enticed, coerced and/or intimidated three girls into rubbing lotion on his penis was sufficient to support his conviction for contributing to the delinquency of juveniles).

This assignment has no merit.

Simple Battery

Louisiana Revised Statutes 14:35 defines simple battery as “a battery committed without the consent of the victim.” Battery, as defined in La.R.S. 14:33, “is the intentional use of force or violence upon the person of another.... ”

In State v. Tauriac, 01-1565 (La.App. 3 Cir. 4/3/02), 813 So.2d 1187, this court reviewed the defendant’s simple battery conviction. In affirming the conviction, the court explained:

The defendant’s actions may be construed as an infliction of force upon N.F. in that his actions were not accidental or incidental, but constituted the requisite force to commit the simple battery. Physical contact is present in that the defendant touched N.F. through her clothing. The offense was committed without the consent of the victim, evidenced by lathe fact the victim pushed the defendant during the first incident and swung at him during the second incident.

Id. at 1189.

Here, A.E. testified that she awoke one morning to the defendant lying beside her in her bed and rubbing her buttocks underneath the shorts she was wearing. A.E. further testified that when she pushed him away, the defendant asked her if she wanted him to leave. A.E. answered affirmatively, and the defendant then left the room. Because the defendant intentionally touched A.E. without her consent, we find that rational trier of fact could have found the essential elements of simple battery proven beyond a reasonable doubt.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The defendant’s sentence for aggravated incest is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). This matter is remanded to the trial court with instructions to make a notation in the minutes reflecting the amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

GENOVESE, J., concurs in part, dissents in part, and assigns written reasons.

GENOVESE, J.,

concurring in part, and dissenting in part.

hi concur with the majority in affirming the Defendant’s convictions on the charges of aggravated incest and contributing to the delinquency of a juvenile. I likewise concur with the majority in amending the sentence to reflect that diminution eligibility is denied and remanding the matter to the trial court to note said amendment in the minutes of court.

However, I dissent from the majority decision affirming Defendant’s conviction on the charge of simple battery. In Defendant’s appeal, he claims “insufficiency of the evidence.” On the charge of simple battery alone, I agree that there was insufficient evidence to support a conviction for simple battery.

Louisiana Revised Statutes 14:35 defines simple battery as “a battery committed without the consent of the victim.” Battery is defined in La.R.S. 14:33 as “the intentional use of force or violence upon the person of another....” The facts in this case fail to prove, beyond a reasonable doubt, the intentional use of force or violence upon the person of another to support a conviction for simple battery. The majority fails to make the distinction between a sexual battery, which does not require the use of force or violence, and a simple battery which does. I would reverse Defendant’s conviction on the charge of simple battery.

      . Pursuant to La.R.S. 46:1844, the initials of the parties involved have been used throughout.