author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. J.M.
    No. 06-624.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      John Foster DeRosier, District Attorney, 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Mitchell P. Bergeron, Public Defender’s Office, Lake Charles, LA, for Defendant/Appellant, J.M.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

11 Defendant, J.M., appeals his jury convictions and trial court sentences for two counts of aggravated incest and one count of attempted aggravated incest. He was sentenced as follows:

[Defendant, [J.M.], is hereby ordered to serve as to each count of aggravated incest, ten years with the Department of Corrections to run concurrent of which six years on each count is suspended. You will serve four years on each count consecutive to one another before being eligible for release.
With regard to the attempted aggravated incest, you are ordered to serve five years with the Department of Corrections consecutive to the ten years on each of the other counts of which three years are suspended and you will serve those two years balance consecutive to the other eight years for the two counts of aggravated incest.
In other words, you will serve a total of ten years with the Department of Corrections and there will be 15 years that have been suspended.

Defendant was also ordered to pay a fine, court cost, and restitution to the victims.

We affirm Defendant’s convictions. We vacate his sentences, however, and remand for resentencing.

ISSUES

Defendant is now before this court on appeal, alleging four errors: insufficient evidence to sustain the verdicts, erroneous denial of Defendant’s request that the victims be sequestered, erroneous imposition of consecutive sentences, and excessiveness of the sentences.

[ 9law and discussion

Insufficiency of the Evidence

Defendant argues that the inconsistencies which existed within the three victims’ initial interviews with the Children’s Advocacy Center counselor and the inconsistencies within their testimonies given at trial were such that it was inconceivable the jury would find Defendant guilty beyond a reasonable doubt. Defendant further argues that the State failed to prove all of the elements of the crimes of aggravated incest and attempted aggravated incest, and that the State failed to show that the offenses occurred in the time frame alleged in the indictment.

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). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court
should not second guess the credibility determinations of the factfinder 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).

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

Defendant was convicted of two counts of aggravated incest committed against Ja.P. and Je.P. and one count of attempted aggravated incest committed against S.F. Louisiana Revised Statutes 14:78.1, in the relevant parts, provides:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, | agrandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(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.

The attempt statute, La.R.S. 14:27, provides, in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the eireum-stances, he would have actually accomplished his purpose.

Moreover, in State v. Arwood, 00-152, pp. 6-7 (La.App. 5 Cir. 6/27/00), 762 So.2d 1266, 1270, the fifth circuit stated:

In order to support a conviction for attempted aggravated incest, the State is required to prove that the defendant specifically intended to engage in an act listed in Subsection B of LSA-R.S. 14:78.1 with his daughter. Such proof is indispensable, as specific intent to accomplish the offense is the sine qua non of the criminal offense of attempt. State v. Trackling, 609 So.2d 206, 207 (La.1992). Specific intent is a state of mind and as such need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. See State v. Graham, 420 So.2d 1126, 1128 (La.1982); and State v. Lewis, 698 So.2d 456, 459 (La.App. 5 Cir.1997), writ denied, 716 So.2d 881 (La.1998).

At trial, the only direct evidence presented of Defendant’s guilt were the testimonies of the three victims and the videotapes made during the interviews conducted by the Children’s Advocacy Center a short time following the victims’ disclosures to the police of Defendant’s acts.

At trial, J.P., the adoptive father of two of the victims, testified that he was alerted to a problem by S.F.’s mother, L.C.F. She had called J.P. and asked him 14if he knew why S.F. insisted that she did not want to visit with Defendant. J.P. had also noticed that his daughters were making up excuses not to visit with their grandfather. After he had talked to S.F.’s mother, he asked the two girls why S.F. did not want to visit Defendant. The oldest, Je.P., then told him that their grandfather had been touching S.F. She told him that their grandfather had been touching Je.P. and Ja.P., too.

L.C.F. testified that after J.P. called her and told her what his girls were saying, she did not confront S.F. directly because she wanted S.F. to tell her first. L.C.F. said she kept asking S.F. why she was mad at Defendant. Finally, S.F. told her about the touching.

The allegations were reported to Mike Primeaux, a detective with the Calcasieu Parish Sheriffs Office sex crimes unit, on or about December 2, 2002. He arranged and monitored the taped interviews of the girls at the Children’s Advocacy Center.

Je.P. was interviewed on December 27, 2002. Je.P., who was twelve at the time, told about an incident that involved herself and Ja.P., which took place in Defendant’s greenhouse while they played “Doctor.” She stated that he was the doctor, and that she and Ja.P. took turns being the patient. She said that while she sat on a workbench, Defendant examined a “bobo” on her thigh. He then reached up the pant leg of her shorts and touched her in the “bad place.” Je.P. indicated, on a drawing of a nude child, that the “bad place” was the genital area. She stated that when it was Ja.P.’s turn to be the patient, she saw him touch Ja.P. in the same “bad place.” Je.P. said that she and Ja.P. ran into the house and locked themselves in a back bedroom and called their father to come and get them. She said that Defendant did not want them to call. Je.P. also stated that she had seen him touch Ja.P. another |stime while Ja.P. was sitting on the couch at Defendant’s house watching television. She also said that Defendant made her watch a “dirty movie” of people doing things without their clothes on. During the interview, Je.P. was unclear about how many times Defendant had touched her and the other two girls.

Je.P. was fifteen at the time of trial. At trial, Je.P.’s testimony was fairly consistent with the information she gave at the interview, except that she testified that S.F. was with her and her sister during the incident in the greenhouse. However, she later testified that S.F. was not in the greenhouse on that particular occasion.

Ja.P. was ten years old at the time of the interview at the Children’s Advocacy Center. She told of playing “Doctor” in the greenhouse with Defendant and S.F. She thought she was seven at the time of the incident. She described how Defendant was the doctor and she was the patient and that she had a “bobo” on her leg that needed fixing. She said that he made her take her pants down. She was unclear as to whether he touched her under or over her panties. She indicated on a drawing of a nude child that he touched her on her genital area. She stated that he made her and S.F. go into the greenhouse with him. She also stated that S.F. had told her that she saw Defendant touch Je.P. She further related a time when they played “Truth or Dare,” and Defendant wanted them to dare him to take his clothes off. She said he wanted them to “do something,” but they refused and locked themselves in the back bedroom. She said that Defendant threatened them, “like burn the house or shoot us.” She talked about him touching them while they were on a swing, and that he would not take them home when they asked. (Ja.P. was not always clear on who was with her, Je.P. or S.F., or both). She described the “dirty movie” he made her and the other girls watch. She said the movie was of people in bed. She stated that | (¡Defendant asked them to do what the people were doing. She said that he hid the movie in the laundry room.

Ja.P. was thirteen when she testified at trial. She testified that incidences of playing “Doctor” in the greenhouse happened several times with her and the other two girls and that Defendant touched them over and under their panties. She remembered Defendant making threats if they told, but could not recall what threats he made. She also recalled watching the “dirty movie” in the living room. Later, she stated that the touching happened to her and S.F. several times but that she was unsure whether it happened to Je.P. more than once.

S.F. was ten at the time of the interview. At the beginning of the interview, S.F. stated that “something happened” several times when she was eight. When she was asked what the something was, she hung her head and would not speak. When asked where something might have happened, she asked to write it down. S.F. then made a list of four places where something happened and who was there when it happened. Eventually, she said that one night when she and Ja.P. were at Defendant’s house, he put his hand on her lap on top of her “private part.” S.F. indicated on a drawing of a nude girl that he touched her on her genital area. She said that one time, after she had used the bathroom in his bedroom, he asked her to take off her clothes. S.F. described the greenhouse and told of playing “Doctor.” She described how he pulled Je.P.’s shorts down and touched Je.P. on her “private part.” She described the movie that he made them watch. She said that there were nasty people in the movie who did not have any clothes on. She said that Defendant kept the movie in the laundry room.

At trial, S.F., who was thirteen then, described how Defendant was always the doctor when they played. She described how he would pretend to fix the |7“upper part” of her legs, and then he would touch her “private part” under her pants but over her panties. She stated that she saw him touch Ja.P. in the same manner. She also saw him touch Ja.P. while Ja.P. was sitting on the couch watching television. She described the game of “Truth or Dare” she had discussed in the taped interview, but this time she said that he wanted her and Ja.P. to kiss each other, and when they refused, he got mad at them. She also described the pornographic videotape she was made to watch.

Defendant testified at trial. He adamantly denied all the allegations. He admitted that he played “Doctor” with the girls, but denied that he touched them as they claimed. He denied that he showed them a pornographic movie. He stated that he has never had a pornographic tape in his house. He stated that he believed J.P. put the sisters up to lying because J.P., who he claimed was unable to have his own children, was fearful of him coming between the two girls and their adoptive father. He stated that S.F. lied so she could be with the other two girls.

Defendant’s wife and daughter also testified. Neither of them had noticed any problems with the three girls and their grandfather.

In brief, Defendant points to several inconsistencies in the girls’ testimonies at trial and with the statements made at the Children’s Advocacy Center. The inconsistencies were of who was touched in whose presence and when and where they were touched. As an example, Defendant points to Je.P.’s videotaped statement that Defendant touched her first when she, Ja. P., and Defendant were playing Doctor in the greenhouse. At trial, she indicated that he played Doctor with Ja.P. first. Furthermore, during the videotaped interview, S.F. did not include the greenhouse on her list of places where she was when Defendant touched her.

| ^Defendant argues that “law enforcement officers and the Child Advocacy counselor” failed to “properly investigate this case to confirm or deny certain facts” and that this compounded the problem. At trial, Detective Primeaux admitted that he did not obtain a search warrant for Defendant’s house to locate the alleged pornographic tape. Further, Defendant points to the fact that there was no medical evidence of sexual abuse submitted at trial.

However, at trial, Detective Pri-meaux testified that he did not ask for medical examinations because the victims had all indicated that Defendant had touched them on their genital areas but did not indicate any penetration. “In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense.” State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-0583 (La.7/2/04), 877 So.2d 143.

While there were inconsistencies in the girls’ statements as to where exactly, when exactly, and who was present when the activity occurred, the salient facts were consistently presented: playing Doctor where only Defendant was the doctor, a pretended problem with the victims’ upper legs, the dirty movie that showed naked people in bed, the tape hidden in the laundry room, and the game of “Truth or Dare” where Defendant wanted the girls to take off their clothes or that they dare him to take off his clothes. At trial, Defendant admitted that he played Doctor once with the girls in the greenhouse. He testified that he had actually moved them from the greenhouse to the back of his truck because of all the pesticides in the greenhouse. He testified that he had gotten an old stethoscope from his wife and used that instrument during their play. Defendant’s wife corroborated his testimony regarding 18the stethoscope. However, none of the girls mentioned a stethoscope or playing Doctor in the back of Defendant’s truck either during the interview with the Child Advocacy counselor or at trial.

Defendant further argues that the State failed to establish that the incidences occurred between January 1, 2001, and December 19, 2002, as alleged in the indictment. Testimony at trial and information asserted in the videotapes indicate that the inappropriate touching happened on a continuing basis. Je.P., whose birth date was in November 1990, had just turned twelve prior to the interview with the Children’s Advocacy Center. She indicated that the incident in the greenhouse happened when she was about nine years of age, which would have put the date within a month or two of January 2001. Both sets of parents testified that in 2002, the girls had began to be reluctant to visit with their grandfather. Moreover, “[t]he date of the offense is not a specific element of aggravated incest.” State v. Foshee, 99-1423, p. 6 (La.App. 3 Cir. 4/5/00), 756 So.2d 693, 696.

Finally, Defendant asserts that the State failed to prove the element of “intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.” La.R.S. 14:78.1(B)(2). The State does not have to prove actual arousal, only the intent to arouse. State v. Rollins, 581 So.2d 379 (La.App. 4 Cir.1991). “Specific intent is a state of mind and as such need not be proven as a fact, but may be inferred from the circumstances and actions of the accused.” State v. Harris, 99-1288, p. 7 (La.App. 5 Cir. 1/24/01), 782 So.2d 1055, 1059, writ denied, 01-0485 (La.1/25/02), 806 So.2d 668. In Arwood, 762 So.2d 1266, the defendant was convicted of attempted aggravated incest. The fifth circuit found that there was sufficient evidence of the defendant’s intent to arouse or satisfy his sexual desire.' The victim, the daughter of the defendant, testified that her father would get into the bathtub with her |10and touch her private parts with his hand. He would sleep naked with her and pull her shirt up and lay on top of her.

In the current case, the facts presented at trial indicated a continuous and planned activity. All of the victims testified that they were forced to watch a pornographic movie. One of the victims reported, that they were asked to take off their clothes, and when they refused, Defendant became angry. Moreover, Defendant was always the “Doctor,” indicating control of the girls. There was sufficient evidence of Defendant’s intent to sexually gratify himself.

Finally, “[i]n the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction or convictions.” State v. Stec, 99-633, pp. 4-5 (La. App. 5 Cir. 11/30/99), 749 So.2d 784, 787. There was sufficient evidence on which the jury could reasonably find Defendant guilty of. the crimes of aggravated incest and attempted, aggravated incest. There is no merit to this assignment of error.

Sequestration of the Victims

Defendant asserts that the trial court committed reversible error when it denied his requests at trial to sequester the victims. In brief, Defendant argues:

The alleged victims, Je.P., Ja.P., and S.F., were allowed to stay in the courtroom while each other were testifying. Even if it is conceded that a victim may have the right to be in the courtroom while their claims are being discussed, it is contended that right would not allow them to be in the courtroom while other victims’ claims are being discussed and when the other parties are not family. Although two of the victims, Je.P. and Ja.P., were sisters, the third victim, S.F., was not related to these parties.

The Louisiana Code of Evidence Article 615, in pertinent part, provides:

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 l^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 interest 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:
(4) The victim of the offense or the family of the victim.

On the morning of trial, Defendant asked that the victims be excluded from the courtroom during each other’s testimony. Defendant asserted that his right to proper cross-examination would be violated because the victims could feed off one another or look to each other for support throughout the testimony. The trial court denied Defendant’s request, stating that it had no authority to exclude the victims and their families. Moreover, the trial court noted that the videotapes would show any discrepancies in the testimonies.

In State v. Johnson, 01-2334, p. 5 (La. App. 4 Cir. 12/4/02), 833 So.2d 508, 511, the defendant complained because one of the two victims he robbed was allowed to remain in the courtroom during the other victim’s testimony. Finding that the defendant’s right to effective cross-examination was not violated, the fourth circuit held:

Further, the purpose of a sequestration order is to prevent a witness from hearing or learning of the testimony of the other witnesses before he takes the stand, preventing the witness from deliberately tailoring his testimony to that of other witnesses. A sequestration order is also intended to exclude conscious and subconscious influence by one witness upon another. An order sequestering the witnesses is designed to do two things: (1) insure that a witness will testify from to [sic] his own knowledge of the case without being influenced by the testimony of another witness and (2) strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981).
Lain this case, the record shows that Thuy Trinh’s testimony was not influenced by her mother’s testimony, and that the defendant’s ability to cross-examine Thuy Trinh was not undermined. Thuy Trinh’s testimony at the motion hearing was identical to the information she provided Detective Deiringer on the day of the offense.

See also, State v. McGinnis, 04-1286 (La. App. 5 Cir. 10/06/05), 917 So.2d 471, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283, where the fifth circuit held that it was not error for the trial court to have denied the defendant’s request to sequester the victim.

As noted by the trial court in the present case, the victims’ testimonies at trial were essentially corroborated by the videotapes made at the Children’s Advocacy Center and each other. While there were minor deviations from the facts alleged, there was nothing to indicate that the victims were testifying in support of or influenced by each other’s testimony. This assignment of error is without merit.

Concurrent Versus Consecutive Sentences and Excessiveness of the Sentences

Errors number three and four concern the consecutive application of the sentences and question whether the sentences were excessive under the circumstances of the case. However, as noted in the Errors Patent section below, the sentences must be' vacated. Therefore, a discussion of these issues is not necessary.

ERRORS PATENT

After reviewing the record, we find several errors patent which require that the sentences imposed be vacated. First, Defendant’s sentences are illegal. Initially, the trial court stated that any sentences it imposed would be consecutive; however, it then stated that Defendant’s ten-year sentences on each count of aggravated incest would run concurrently. Later, the trial court stated that the | ^probationary periods of five years would also run concurrently. These sentences are thus indeterminate and require that the case be remanded for resentencing.

Second, the trial court failed to set the amount of restitution to be paid to the victims. In ordering restitution be paid, the trial court stated:

You will be required to make restitution to each of the victims according to amounts that are submitted for any counseling and treatment as provided for by law. Those amounts will be submitted to the Office of Probation and Parole and be made a part of your payment schedule. I believe we will have a feeling for what those total amounts will be by the time that you’re released.

In State v. Joseph, 05-186, pp. 2-3 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, 380, this court stated:

This court has held that when a trial court fails to state the amount of restitution owed as a condition of probation, the sentence is illegal and the case must be remanded for resentencing. State v. Dauzat, 590 So.2d 768 (La.App. 3 Cir. 1991), writ denied, 598 So.2d 355 (La.1992), cf. State v. Randle, 02-309, 02-310 (La.App. 3 Cir. 10/2/02), 827 So.2d 657.

Thus, at resentencing, the trial court should be instructed to set the amount of restitution to be paid to each victim.

Third, the trial court failed to establish a payment plan for the payment of the $1,500 fine, court costs, and the $500 reimbursement to the Indigent Defender Board. The trial court stated that the fine and court costs were to be “spread out over the 60 months of [his] supervised probation on a schedule to be worked out by Probation and Parole and approved by [the] court.” This court has previously found such a statement insufficient to establish a payment plan. See State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, and State v. Brack, 99-1103 (La.App. 3 Cir. 3/1/00), 758 So.2d 310. Thus, we order the trial court to establish a payment plan for any fees imposed as conditions of probation at the resentencing proceeding. [ u A payment plan is also required for any restitution ordered as a condition of probation. See State v. Morris, 05-725 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107.

CONCLUSION

The evidence was sufficient to sustain the guilty verdicts on two counts of aggravated incest and one count of attempted aggravated incest beyond a reasonable doubt. Furthermore, the trial court did not err when it denied Defendant’s request to sequester the victims during each others’ testimonies. Accordingly, we affirm Defendant’s convictions. However, because of the indeterminate nature of the sentences and the lack of a payment plan for the fines, court costs, and restitution ordered, the sentences are vacated, and this matter is remanded to the trial court for resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

      . Because the victims are minors, initials of the parties will be used to protect the victims’ identities. La.R.S. 46:1844(W).


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lisa Landry JOHNSON.
    No. KA 2006-623.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      John Foster DeRosier, Fourteenth Judicial District Attorney, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Lisa Landry Johnson.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

liOn February 24, 2005, the Defendant, Lisa Landry Johnson, was charged in an indictment with second degree murder, a violation of La.R.S. 14:30.1. The Defendant entered a plea of not guilty on March 28, 2005.

Trial of this matter began on February 7, 2006 and on February 13, 2006 the jury returned a verdict of guilty. A motion for post-verdict judgment of acquittal was filed on February 16, 2006 and denied by the court on February 17, 2006. On February 17, 2006, the Defendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence.

A motion for appeal and designation of record was filed on March 14, 2006. The Defendant is now before this court asserting three assignment of errors. Therein, the Defendant contends there was insufficient evidence to convict her of second degree murder, the trial court erred in denying her motion for post-verdict judgment of acquittal, and the trial court erred in denying the challenge for cause regarding prospective juror Dudley and in granting the State’s challenge for cause regarding prospective juror Lilly.

FACTS

The Defendant stabbed her husband, Jerry Johnson, on December 30, 2004. Johnson died as a result of his injuries.

ERRORS PATENT

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

First, the record does not indicate that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, we find the trial court should be directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the 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.

ASSIGNMENT OF ERRORS NUMBER ONE AND TWO

In her first assignment of error, the Defendant contends the verdict of the jury was contrary to the law and evidence, as there was insufficient evidence, when viewed in the light most favorable to the prosecution, for the jury to find her guilty of the crime charged beyond a reasonable doubt. In her second assignment of error, the Defendant contends the trial court erred in denying her motion for post-verdict judgment of acquittal. Inasmuch as these two assignment of errors are interrelated, they will be addressed together.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that to affirm the conviction the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all elements of the crime beyond a reasonable doubt. State v. Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d at 678.

State v. Spears, 05-964, p. 2 (La.4/4/06), 929 So.2d 1219, 1222.

Similarly, under La.Code Crim.P. art. 821(B), a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in the light most favorable to the State, does not reasonably permit a finding of guilty.

|sThe Defendant was found guilty of killing her husband, Jerry Johnson, on December 30, 2004. On December 29, 2004, the Defendant, Jerry, Eric Bledsoe, and Sara Landry, the Defendant’s sister, went to Leesville to visit Eric’s friend. The group left the Defendant’s apartment between 7:00 and 8:30 p.m. On the way, the group stopped for alcoholic beverages and food. Sara testified that during the trip to Leesville, the Defendant and Jerry argued.

The group left Leesville at approximately 11:00 p.m. or 12:00 a.m. Jerry drove the group home and, during the drive, he and the Defendant, who was in the front seat of the car, argued. When the group arrived home, the Defendant and Jerry were still arguing. Eric testified that he saw Jerry, who was still seated in the car, throw a Styrofoam cup filled with alcohol at the Defendant. Sara testified that when Jerry threw the cup he hit the Defendant in the ear with his fist. However, in her statement to police, Sara merely indicated Jerry had thrown the cup. Eric testified that the Defendant then got out of the car, said no “ ‘MF’ hits me,” and ran into the apartment. Eric and Sara testified that Jerry then ran after her. Sara additionally testified that while the Defendant and Jerry were in front of the apartment door, she saw the two hit each other. However, in her statement to police, Sara stated that the Defendant pushed Jerry, who then attempted to push the Defendant off him.

Sara and Eric remained at the car while the Defendant and Jerry went into the apartment. Joshua Landry, the Defendant’s brother, was asleep when the Defendant and Jerry entered the apartment, but was awakened by the Defendant, who was talking loudly and complaining that Jerry hit her. Joshua testified that the Defendant kept asking Jerry to leave and he refused. Jerry then sat down on the couch, and the argument continued. Joshua further testified that at some point the Defendant went into the kitchen and came back with four knives. At that time, Jerry was still sitting |4on the couch. Once armed with the knives, which she held down by her sides, the Defendant continued to tell Jerry to leave and stated, “If you don’t get out, I’m gonna cut you.” Joshua testified that, at that time, Jerry walked up to the Defendant, opened up his arms, and told the Defendant to “do it.” The Defendant then stabbed Jerry. Once Jerry was stabbed, he said it did not hurt, began walking, and then fell to the floor.

Sara testified that she entered the apartment approximately five to ten minutes after Jerry and the Defendant. At that time, Jerry was walking around and the Defendant was standing in the doorway talking to Joshua about getting Jerry out of the apartment. Sara testified that Jerry finally sat down on the couch and said he was not leaving. The Defendant then informed Jerry that she would call the police and walked into the kitchen. When the Defendant returned from the kitchen, she had knives in her hand. Sara testified that she told the Defendant to put the knives down then Jerry stood up in front of the Defendant and said, “I dare you.” The Defendant then stabbed Jerry. Sara testified that Jerry subsequently fell to the floor and the Defendant continued to tell him to leave the apartment. Sara further testified that when she told the Defendant Jerry was going to die, the Defendant said, “I don’t care.”

Eric was the last to return to the apartment. He testified that once inside the apartment, he heard a good deal of screaming and saw Jerry begin to stagger. Eric caught Jerry as he began to fall and the two walked toward the kitchen. At that time, Jerry fell to the floor. Eric testified that after Jerry was stabbed, the Defendant spoke words “intending that she didn’t care” that she had stabbed him. Eric further testified that the Defendant’s attitude did not change once police arrived.

| ¡¡Police and emergency medical personnel responded to the call, arriving at approximately 1:20 or 1:30 a.m. Officer John Thacker testified that the Defendant told him, “He hit me with a drink. We continued arguing. When we got home I told him to leave. He said he wasn't leaving. I grabbed some knives, told him to get out.” “He stood up and said, ‘Do what you got to do; I’m not leaving,’ and I stabbed his ass.”

Officer Scott Willson testified that the Defendant said she and Jerry argued over a drink he threw on her. Jerry then sat on the couch and the two continued to argue. At some point, the Defendant went into the . kitchen, grabbed some steak knives, and went back into the living room. The argument continued, as the Defendant wanted Jerry to leave the apartment and he refused to do so. Jerry eventually stood up, and the two were face to face. At that time, the Defendant told Jerry she wanted him to leave and he said he was not leaving. More words were exchanged, and Jerry said, “Do what you got to do.” The Defendant then stabbed Jerry.

Lieutenant Michael Saxby was asked about the Defendant’s demeanor that night. He testified that she was “|j]ust like matter of fact, just nonchalant, just standing there like nothing was going on.” Lieutenant Saxby further testified that he heard the Defendant tell other officers that she stabbed Jerry because the two were arguing and she was mad because he had thrown a drink on her. On cross-examination, Lieutenant Saxby testified that he did not know how the Defendant ordinarily behaved.

Deputy Albert Hooper testified that the Defendant was calm while talking to police and her demeanor did not change during booking.

DThe Defendant gave a taped statement to police in which she told them what occurred when Jerry was stabbed. The Defendant told Detective Marcus McCullough that she and Jerry argued in the car. Once they were in the apartment, Jerry hit her in the head with something. She was then in the kitchen with her back to Jerry when he charged her. At that time, the Defendant grabbed a knife and stabbed Jerry. Detective McCullough testified that through his investigation he did not find that anything occurred in the kitchen.

Jerry was taken to the hospital, where he was pronounced dead at 2:13 a.m. Dr. Terry Welke performed an autopsy on Jerry on December 30, 2004. Dr. Welke determined that Jerry had two stab wounds in the area of the left frontal chest near the collar bone. Dr. Welke opined that both stab wounds could not have occurred simultaneously. Additionally, one knife went through the upper portion of the lung and the pulmonary artery and the other through the lung only.

Joshua, Sara, Michael Davis, Officer Jason Schnake, Michael Johnson, and Kathy Walker testified regarding past incidents of physical violence and arguments between the Defendant and Jerry. Although the Defendant discusses the incidents of abuse in brief to this court and indicates it is sufficient to cause the verdict of second degree murder to be reduced to manslaughter, we have not included that testimony in this opinion, as we feel it is not relevant to the issues in these assignment of errors. Additionally, the Defendant did not assert the defense of self-defense.

The Defendant was convicted of second degree murder, which is the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. La.R.S. 14:30.1. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10. This court 17noted in State v. Robertson, 98-883 (La. App. 3 Cir. 12/9/98), 723 So.2d 500, writ denied, 99-658 (La.6/25/99), 745 So.2d 1187, that, specific criminal intent need not be proven as fact but may be inferred from the circumstances of the case and actions of the defendant.

In order to convict the Defendant of second degree murder, the State had the burden of proving the Defendant had the specific intent to kill or inflict great bodily harm upon Jerry Johnson.

In State v. Overton, 596 So.2d 1344 (La. App. 1 Cir.), writ denied, 599 So.2d 315 (La.1992), the defendant and the victim fought at a convenience store and each then left. The victim later armed himself and went to the motel where the defendant was staying. While the victim was in his truck in the parking lot of the motel, the defendant approached the vehicle and began to argue with the victim. A fight then ensued. The defendant threatened to cut the victim then reached into the truck and stabbed the victim at least twice. The victim died as a result of his injuries. The defendant was subsequently convicted of second degree murder.

On appeal, the court found that “[t]he fact that the defendant reached into the truck and stabbed the victim in the chest with a pocketknife indicates a specific intent to kill or to inflict great bodily harm. Id. at 1357.

The Defendant in the case sub ju-dice argues that because she did not believe the police when she was told Jerry was dead, she did not have the specific intent to kill or cause great bodily harm. The Defendant also notes that Jerry stated that his injury did not hurt.

Testimony indicates the Defendant stabbed Jerry twice after telling him that if he did not leave she would cut him and retrieving four knives from the kitchen. We find that stabbing someone in the left chest near the heart is indicative of the specific |Rintent to at least inflict great bodily harm, if not the specific intent to kill. Accordingly, a rational trier of fact could have found that the State proved the elements of second degree murder beyond a reasonable doubt.

We will now discuss whether the evidence supports a conviction of manslaughter. Manslaughter is defined in part as:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.]

La.R.S. 14:31(A)(1).

As explained by the Louisiana Supreme Court in State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, “sudden passion” and “heat of blood” are not elements of manslaughter. “Rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed in the absence of these factors.” Id. at p. 4, 837-38. If a defendant establishes, by a preponderance of the evidence, the presence of these mitigating factors, he or she is entitled to a verdict of manslaughter. Id. See also State v. Lombard, 486 So.2d 106 (La.1986).

State v. Broum, 00-1021, p. 6 (La.App. 3 Cir. 1/31/01), 780 So.2d 536, 540, writ denied, 01-912 (La.2/1/02), 807 So.2d 854.

Regardless of the words exchanged, “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135, 1143 (La. App. 2 Cir.1988). See also State v. Mitchell, 39,202 (La.App. 2 Cir. 12/15/04), 889 So.2d 1257, writ denied, 05-132 (La.4/29/05), 901 So.2d 1063, quoting State v. Conerly, 48 La.Ann. 1561, 21 So. 192 (1897)). “Further, an argument alone will not be a sufficient provocation in order to reduce a murder charge to manslaughter. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98); 720 So.2d 829, citing State v. Gauthier, 546 So.2d 652 (La.App. 4 Cir. 1989).” State v. Charles, 00-1611, p. 4 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420.

In reviewing the Defendant’s claim, this court must determine “if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence.” State v. Hamilton, 99-523, p. 7 (LaApp. 3 Cir. 11/3/99), 747 So.2d 164, 168.

The evidence in the case sub judice indicates the Defendant and Jerry argued on their way to and from Leesville. Jerry then threw a cup at the Defendant. Although Sara testified that Jerry hit the Defendant in the ear in the car and the two hit each other in front of the apartment before entering, that testimony is questionable, as it conflicts with the statement she gave to police and with Eric’s testimony. Once inside the apartment, the Defendant and Jerry argued for at least ten to fifteen minutes while Jerry initially walked around the apartment then sat on the couch. While Jerry was seated, the Defendant went into the kitchen and retrieved four knives. The Defendant then told Jerry she would cut him if he did not leave. Jerry proceeded to stand up and tell the Defendant to do it or “I dare you.” The Defendant then stabbed Jerry. After she stabbed Jerry she continued to demand that he leave the apartment and made statements indicating that she was not concerned that Jerry might die.

In State v. Shanks, 97-1885 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, the victim went to the defendant’s home to collect money the defendant owed him for a prior purchase of marijuana. Once inside the defendant’s trailer, the victim began demanding money and an argument ensued. The victim struck the defendant once on the left side of the cheek and once on the left side of the neck. As the victim turned to walk out the door, the defendant picked up a shotgun and fired one time at waist hnlevel. During his statement to police, the defendant stated, “[N]o m-r f-r is going to come in my house and hit me.... ” Id. at 162. On appeal, the defendant argued that the evidence was insufficient to prove second degree murder. Alternatively, the defendant argued that the court should find that the evidence supported a conviction of manslaughter. The court concluded the following:

Based upon the physical evidence, the crime scene photographs, defendant’s admission (that he picked up the 12 gauge shotgun and fired it in the direction of the victim’s backside at close range from waist level as the victim was exiting the door), and defendant’s pounding the table and telling the police that “no m-r f-r is going to come in my house and hit me,” any rational trier of fact could have concluded beyond a reasonable doubt that this shooting was not accidental, but rather one with the specific intent to kill or inflict great bodily harm. In returning a guilty verdict, it is obvious the majority of the jury concluded that the evidence proved the requisite element of specific intent for second degree murder. Once that conclusion was reached, it foreclosed the alternative theory of a manslaughter, without specific intent based on the commission of the offense of illegal use of a weapon. This left the jurors with the remaining decision of determining whether the homicide should be reduced from second degree murder to manslaughter committed in sudden passion or heat of blood. It is obvious the majority of the jury concluded this homicide was not committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection; or that, if there was such provocation, defendant’s blood had actually cooled, or an average person’s blood would have cooled, at the time the offense was committed. Consequently, we find that, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the mitigating factors were not established by a preponderance of the evidence and that there was proof, beyond a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence, that this homicide was a second degree murder.

Id.

In State v. McCray, 621 So.2d 94 (La. App. 2 Cir.1993), the defendant went to the victim’s home armed with a pistol. He went into one of the bedrooms and left his gun there, but kept the clip. The defendant then returned to the living room and began talking to the victim about their relationship. When the victim told the defendant she did not love him anymore, he hit her in the head several times with the Indip. The defendant then went to the bedroom, retrieved the gun, and inserted the clip. The defendant returned to the living room and hit the victim over the head with the gun several times saying, “Well, I tell you what, b — ch, if I can’t have you, can’t nobody have you.” Id. at 96. The defendant then aimed the gun at the victim and fired. The victim’s brother grabbed the defendant’s hand, causing the bullet to go through the ceiling. The defendant fired a second time, and the bullet struck the victim in the abdomen. The defendant was convicted of attempted second degree murder. On appeal, the defendant argued that the evidence supported a verdict of attempted manslaughter. The court found that the defendant had ample time to reflect on his actions because he went into another room of the house to retrieve his gun.

In the present case, we find the verdict of guilty of second degree murder should stand. The stabbing occurred at least ten to fifteen minutes after Jerry threw a cup at and/or hit the Defendant. Based on the cases cited herein, Jerry’s acts were too far removed from the stabbing to support the provocation element necessary for a conviction of manslaughter. Subsequently, Jerry and the Defendant were arguing; however, an argument alone is not sufficient provocation to support a verdict of manslaughter. Additionally, the Defendant left the area of the living room and went into the kitchen to retrieve the knives she used to stab Jerry. Based on these facts, we find the Defendant failed to establish the mitigating factors necessary to support a verdict of manslaughter by a preponderance of the evidence. Additionally, based on the cases cited herein, any arguments or physical abuse that occurred prior to the date of the incident, would not be sufficient provocation for manslaughter.

Accordingly, these assignments of error lack merit.

|,,ASSIGNMENT OF ERROR NUMBER THREE

In her third assignment of error, the Defendant contends the trial court erred in denying her challenge for cause regarding prospective juror Dudley and in granting the State’s challenge for cause regarding prospective juror Lilly.

DUDLEY

The Defendant argues that Dudley was not properly rehabilitated, as he never retracted his statement that he would lean toward law enforcement. The State argues that this issue is not properly before the court, as the Defendant’s objection was not specific enough under La. Code Crim.P. art. 800 to preserve the issue for review.

Louisiana Code of Criminal Procedure Article 800(A) provides as follows:

A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.

The Defendant challenged Dudley for cause because, if selected to serve on the jury, he might miss a scheduled court hearing and he stated that he would probably err on the side of believing law enforcement. The Defendant clearly stated her basis for the challenge for cause at issue and objected to the court’s denial of her challenge for cause. Therefore, we find this issue is properly before the court. We will now discuss whether the trial court improperly denied the Defendant’s challenge for cause.

Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686. Therefore, to prove there has been an error warranting reversal of a conviction and sentence, a defendant need only show: (1) the trial court’s erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. Cross, 93-1189 at p. 6, 658 So.2d at 686; Robertson, 92-2660 at p. 3, 630 So.2d at 1281.
|1g... Thus, as a starting point, we note that under La.C.Cr.P. art. 797, a defendant may challenge a juror for cause if:
(2) the juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient grounds for challenge to a juror, if he declares, and the court is satisfied, that he can render and impartial verdict according to the law and the evidence; ...
(4) The juror will not accept the law as given to him by the court.
Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror. State v. Allen, 380 So.2d 28, 30 (La.1980); State v. Jones, 282 So.2d 422, 431 (La.1973). However, a mere relationship between a prospective juror and a law enforcement officer is not of itself grounds to strike the juror for cause. State v. Anthony, 98-0406, p. 24 (La.4/11/00), 776 So.2d 376, 392; State v. Smith, 430 So.2d 31, 38 (La.1983). Additionally, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Lee, 559 So.2d 1310, 1318 (La.1990); State v. Baldwin, 388 So.2d 664, 671-72 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981); Allen, 380 So.2d at 30. But, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render a judgement according to law may be reasonably implied. State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990).

State v. Kang, 02-2812, pp. 3-5 (La.10/21/03), 859 So.2d 649, 651-53(second omission in original).

The Defendant used all twelve of her peremptory challenges prior to the selection of the twelfth juror. Therefore, we find the court must ascertain whether the trial court erroneously denied the Defendant’s challenge for cause regarding prospective juror Dudley.

Dudley informed the trial court that he worked for the Louisiana Department of Probation and Parole. He was then questioned as follows:

J^THE COURT:
And the same type of questions, the fact that you are involved in law enforcement do you have a predisposition in this matter?
PROSPECTIVE JUROR:
No, not really. I know everyone here but I think I could judge the case on its facts.
THE COURT:
Do you think you could be fair and impartial?
PROSPECTIVE JUROR:
I think so.

The questioning continued as follows:

THE COURT:
Would you automatically vote in favor of a law enforcement position even if the evidence wasn’t there?
PROSPECTIVE JUROR:
I’m sure I would be biased to some extent, maybe not intentionally, but I think I would vote on the facts, but I would probably lean more towards law enforcement because I know all the officers involved.
THE COURT:
You heard the witness list and you know most of them?
PROSPECTIVE JUROR:
Yeah, I worked with them or I have worked with them.

Later, Dudley was questioned by the State as follows:

MS. WILSON:
Thank you sir.
Mr. Dudley, basically the same question I was asking Ms. Dally. I think you pretty much know all of the participants, because as a | ^probation officer you have to work with your client’s prosecutor, as well as the defense attorney, to try to resolve things; correct?
PROSPECTIVE JUROR:
Yes.
MS. WILSON:
And the fact that you work with myself and Mr. Bergeron and other members of the defense bar, that is not going to make you favor one side or the other if you were selected as a juror in this case; is that correct?
PROSPECTIVE JUROR:
No. I could judge the facts of the case. MS. WILSON:
Okay. Also, my husband also is a former probation and parole officer, and I think you had a working relationship with him as well; correct? PROSPECTIVE JUROR:
Yes.
MS. WILSON:
And that would not influence you in your decision in this case; is that correct?
PROSPECTIVE JUROR:
No, it wouldn’t.

Defense counsel questioned Dudley as follows:

MR. WHITE:
Okay. How do you feel about the prospect of possibly being a juror on a ease where you are going to be looking intently at the matter of intent? You are going to be splitting legal hairs here possibly. Do you follow me? PROSPECTIVE JUROR:
Well, I would have to judge it on its facts and be as neutral as possible. We all have natural bias I think, but the severity of the crime l1fiand the sentence that she is possibly facing you would have to be neutral and look at all the facts.

The Defendant challenged Dudley for cause asserting there may be a problem, because Dudley was scheduled to be at a hearing on Friday, which could potentially involve a client of the Public Defender’s Office and that client could possibly be prejudiced if Dudley were absent. The trial court stated that the situation may present a hardship, but was not a basis for cause under La.Code Crim.P. art. 797. It was then pointed out by defense counsel that Dudley sounded as though he might err on the side of believing law enforcement over civilian witnesses. However, the trial court denied the challenge for cause, noting there was no significant relationship that would influence Dudley’s verdict and Dudley indicated that he would accept the law as given. The Defendant objected to the trial court’s ruling. The Defendant later exercised a peremptory challenge against Dudley.

In State v. Hallal, 557 So.2d 1388 (La.1990), prospective juror Shirley Wilson, the wife of a fifteen-year veteran of the Vernon Parish Sheriffs Office, acknowledged the defendant was presumed innocent, the state had the burden of proof, and any impression she had about the case would have to yield to the evidence presented at trial. However, she indicated she would tend to believe the state’s police witnesses because she knew them. She further stated that although she had no close personal ties with the officers, she felt they were honest people. The supreme court held that Wilson never expressly stated that she could put aside her acquaintance with the officers, and it was not reasonable for the trial court to accept assurances that she would judge the case impartially on the evidence at trial from a juror who began with the premise that the police officers directly involved in the arrest and questioning of the defendant were telling the truth. The defendant’s conviction and sentence were then reversed and vacated and the matter remanded.

|17In State v. Jones, 623 So.2d 877 (La. App. 1 Cir.), writ denied, 629 So.2d 419 (La.1993), prospective juror Bishop had been employed as an administrative assistant by the Louisiana State Police for twelve years. During voir dire, Bishop stated that she would do her best to be fair. She later indicated that her acquaintance with people in law enforcement could cause her to lean toward the state’s favor. However, Bishop then informed the trial court that if the state had not proven its case she would not vote guilty and she would attempt to render the fairest verdict she could based on the facts presented. She further indicated that she would do her best to separate herself from her experiences and listen to the evidence presented. The first circuit noted that Bishop never expressly stated she could put aside her bias. The court went on to find that Bishop’s statement that- she would “do her best” to give the defendant a fair and impartial trial was not sufficient and reversed the defendant’s convictions and sentences. Id. at 881.

In State v. Paul, 99-92 (La.App. 5 Cir. 5/19/99), 738 So.2d 1128, the defendant challenged four prospective jurors for cause. During questioning by defense counsel, prospective juror Naquin indicated that the testimony of a police officer would be more accurate than that of a non police officer because a police officer “is at a higher standard.” Id. at 1130. Prospective juror Cooke felt the same about the testimony of a police officer. Prospective juror Nezat indicated that he felt the testimony of a police officer would be more accurate. Additionally, prospective juror Dalia stated that she would be more inclined to believe a police officer over an ordinary person. The fifth circuit noted that neither the state nor the judge attempted to rehabilitate the prospective jurors after they voiced their bias in favor of police officers and the state’s case was based entirely on the testimony of police officers. The court further noted that the prospective jurors never expressly stated that they would set aside their |1sbiases and give the defendant a fair trial. The court held that the trial court’s failure to grant the defendant’s challenges for cause was an abuse of discretion.

In State v. Price, 02-360 (La.App. 4 Cir.4/2/03), 842 So.2d 491, writs denied, 03-1322 (La.11/21/03), 860 So.2d 542 and 03-1517 (La.12/12/03), 860 So.2d 1151, the defendant’s challenge for cause regarding prospective juror Saizan was denied. During voir dire, Saizan indicated that she would probably find a police officer a credible witness. She further indicated that it was possible that she could not hear the case without any bias in favor of believing the police witnesses. Saizan then stated that she would give the testimony of all witnesses equal weight and would look at the testimony of each witness individually in order to determine whether their testimony was worthy of belief. The trial court subsequently denied the defendant’s challenge for cause. The fourth circuit then noted that none of the police officers that Saizan knew testified at trial. Additionally, her responses to the trial court’s questioning showed that she could fairly evaluate the credibility of all witnesses and judge them on equally. The court then distinguished the case from Hallal, 557 So.2d 1388, indicating there was no confession or statement given to police by the defendant in Price. The fourth circuit concluded that the state’s burden of proof was not as directly dependent upon police credibility as it was in Hallal. The fourth circuit then held that the trial court did not abuse its discretion when denying the defendant’s challenge for cause.

In the case sub judice, there were witnesses present when the Defendant stabbed Jerry and the Defendant admitted she stabbed him. Therefore, we find that, as in Price, 842 So.2d 491, the testimony of police officers was not crucial to the State’s case. Furthermore, prospective juror Dudley was sufficiently rehabilitated, as he indicated he could be neutral and judge the facts of the case. Accordingly, we liflfind the trial court properly denied the Defendant’s challenge for cause as to prospective juror Dudley.

LILLY

During voir dire, prospective juror Lilly indicted that, in his experience, he did not think a man could be the victim of domestic violence. He then indicated that, “If there is domestic violence involved, like a man and a woman, I don’t think that I could go against the woman.” Lilly further indicated that had his mother done something to his father while he was asleep, Lilly would have been on her side from what he saw.

The State challenged Lilly for cause alleging he was obviously biased. The trial court then excused Lilly. Defense counsel objected to the trial court’s ruling.

The’ Defendant asserts that Lilly should have been questioned further and rehabilitated, as there was not enough evidence submitted to show that he would be biased toward the Defendant.

[A] defendant does not have grounds to complain about the granting of a state’s challenge for cause, unless the effect of the ruling is to allow the state to exercise more peremptory challenges than is allowed by law. State v. Joe, 28,198 (La.App. 2 Cir. 7/26/96), 678 So.2d 586, 589; State v. Fleeks, 26,270 (La. App. 2d Cir.3/1/95), 651 So.2d 370; La. Code Crim.P. art. 800 B.

State v. Green, 98-1388, p. 12 (La.App. 3 Cir. 3/31/99), 735 So.2d 723, 731, writ denied, 00-2904 (La.8/24/01), 795 So.2d 323.

The record indicated that the State exercised only eleven of the twelve peremptory challenges allotted to it by La. Code Crim.P. art. 799. Thus, the Defendant’s argument is without merit.

^CONCLUSION

The Defendant’s conviction and sentence is affirmed. However, the trial court should be directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings.

AFFIRMED.


author: PICKETT, Judge.

text:
    OLD SPANISH TRAIL CREDIT UNION v. Felix Elbert SEXTON Jr. and State Farm Mutual Automobile Association.
    No. 06-613.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Van C. Seneca, Attorney at Law, Lake Charles,- LA, for Plaintiff/Appellant, Old Spanish Trail Credit Union.
    Thomas A. Self, Attorney at Law, Lees-ville, LA, for Defendani/Appellee, Felix Elbert Sexton, Jr.
    Bonita K. Preuetb-Armour Armour Law, Alexandria, LA, for Defendant/Ap-pellee, State Farm Mutual Auto. Ins. Co.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

h The plaintiff, Old Spanish Trail Credit Union, appeals a judgment of the trial court granting the defendant’s, Felix E. Sexton Jr.’s, exception of no right of action and dismissing the plaintiffs suit at its costs. We reverse the judgment of the trial court and remand the case for further proceedings not inconsistent with this opinion.

FACTS

The defendant, Felix E. Sexton Jr., borrowed $31,304.47 from the plaintiff, Old Spanish Trail Credit Union (the Credit Union) in May 2003 to purchase a pick-up truck. The loan was secured by a note on the truck. In August 2003, the defendant failed to make a payment on the insurance on the truck (the plaintiff was a loss payee on the policy). Thereafter, on September 12, 2003, the defendant sought protection under Chapter 7 of the United States Bankruptcy Code. In connection therewith, he indicated his intent to surrender his pick-up truck to the Credit Union. Also on September 12, 2003, State Farm Mutual Automobile Insurance Company, Mr. Sexton’s insurer, sent notice to the plaintiff that the defendant’s policy would be can-celled effective September 25, 2003, for non-payment of the premium. The defendant did not surrender the vehicle to the plaintiff, and on October 5, 2003, he wrecked the vehicle, causing significant damage to the truck.

The United States Bankruptcy Court, Western District of Louisiana, entered a “Discharge of Debtor” in favor of Mr. Sexton on January 14, 2004. Sometime during the pendency of those proceedings, the Credit Union purchased the defendant’s wrecked truck from the bankruptcy trustee. The Credit Union also filed a claim with the bankruptcy court praying “the debtor [the defendant herein] ... be held liable to the creditor in tort” for the difference in value of the truck before and after the | ?accident. On July 30, 2004, the bankruptcy court dismissed the Credit Union’s claim based upon its lack of jurisdiction over the claim.

Subsequently, on August 23, 2004, the Credit Union filed the instant action seeking the same relief it sought in the bankruptcy court, i.e., that the defendant be held liable in tort for the difference in value of the truck before and after the accident. The defendant answered the petition with the peremptory exceptions of no cause of action and no right of action alleging that his discharge in bankruptcy of January 14, 2004, “discharged [him] from any liability whatever on the claim” of the Credit Union. The trial judge denied the exception of no cause of action, but maintained the exception of no right of action based upon the defendant’s discharge in bankruptcy and dismissed the plaintiffs suit against the defendant. This appeal followed.

LAW AND DISCUSSION

The appellant challenges the trial court’s granting of the defendant’s peremptory exception of “No Right of Action.”

Determination of whether the plaintiff has a right of action is a question of law. Ralph v. City of New Orleans, 04-1270 (La.App. 4 Cir. 12/14/05), 921 So.2d 988, 995, iurit granted and reversed in part on other grounds, 06-0153 (La.5/5/06), [928] So.2d [537],.... Appellate review of questions of law is simply to determine whether the district court was legally correct or legally incorrect. Id. at 996.
The function of a no right of action exception is to determine whether the plaintiff belongs to a class of persons to whom the law grants the cause of action asserted in the suit. Industrial Companies, Inc. v. Durbin, 02-0665, p. 11 (La.1/28/03), 837 So.2d 1207, 1216. The no right of action exception assumes that the petition states a valid cause of action for some person. Id. at 12, 837 So.2d at 1216. The exception does not raise the question of the plaintiffs ability to prevail on the merits of the case. Wallace Drennan, Inc. v. Sewerage & Water Board, 98-2423, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 861, 864. When the excepting defendant fails to present any evidence supporting the no right of action exception, the court must decide, based solely on the plaintiffs allegations, whether the plaintiff belongs to the class of persons to 13whom the law grants the asserted cause of action. Industrial Companies, Inc. v. Durbin, supra.

Acorn Cmty. Land Ass’n of Louisiana, Inc. v. Zeno, 05-1489, pp. 3-4 (La.App. 4 Cir. 6/21/06), 936 So.2d 836, 838-39.

In our research we have failed to find a case on point with this one. However, we have found sufficient law to guide us in our decision. The plaintiff bases its claim in tort, relying on the following: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La.Civ.Code art. 2315. The defendant relies on his discharge in bankruptcy from all pre-petition (September 12, 2003) debts, including the loan taken out with the plaintiff.

First, we examined just what was discharged in bankruptcy. There is no doubt that the original $31,304.47 loan for which the defendant contracted with the Credit Union on May 8, 2003, was discharged. Therefore, the Credit Union had no cause of action and no right of action against the defendant based upon the loan contract. However, the plaintiff brought suit in tort based upon an event (the defendant’s wrecking the secured collateral) which took place after the petition for bankruptcy had been filed. This action is not in contract, but rather is based upon a tort arising out of the contractual relationship. It is well settled that “[a] tort is a private wrong, independent of contract.” P. Olivier & Sons v. Board of Comm’rs, 181 La. 802, 160 So. 419, 420 (1935). The Louisiana Supreme Court, in Corbello v. Iowa Production, 02-826, p. 32 (La.2/25/03), 850 So.2d 686, 708, stated:

We recognize the long-standing rule that “when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions.” Federal Insurance Company v. Insurance Company of North America, et al., 262 La. 509, 263 So.2d 871, 872 (1972).

See also Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 02-266 (La.App. 3 Cir. 4/2/03), 844 So.2d 380, writs denied, 03-1585, 03-1624 (La.10/31/03), 857 So.2d 476. In this case the plaintiffs suit in contract was extinguished by the defendant’s discharge in bankruptcy. The Credit Union’s tort action, although having its roots in the contractual relationship between the parties, is a separate action. Furthermore, it arose after the defendant had filed his bankruptcy, and hence was not amenable to discharge by the bankruptcy proceeding.

Accordingly, for the reasons stated, the judgment of the trial court sustaining Mr. Sexton’s Exception of No Right of Action is reversed; the plaintiffs petition against Felix E. Sexton is reinstated; and the case is remanded for further proceedings not inconsistent with this opinion. Ail costs of this appeal are assessed against the defendant, Felix E. Sexton.

REVERSED AND REMANDED.


author: SULLIVAN, Judge.

text:
    John S. DAVIS v. AMERICAN LEGION HOSPITAL.
    No. 06-608.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Bob Broussard, D. Patrick Daniel, Jr., Attorneys at Law, Lafayette, Louisiana, for Plaintiff/Appellant, John S. Davis.
    Timothy W. Basden, Breaud & Lemoine, Lafayette, Louisiana, for Defendant/Appel-lee, American Legion Hospital.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

| t John S. Davis appeals the dismissal of his personal injury action against American Legion Hospital (“the Hospital”) on summary judgment. For the following reasons, we affirm.

Factual and Procedural Background

Mr. Davis filed suit against the Hospital, alleging that he injured himself on the evening of September 10, 2002, when he fell after stepping off a sidewalk near the emergency room entrance. In his deposition, Mr. Davis testified that, because the main entrance of the hospital was locked when he arrived between 9:30 and 10:00 p.m. to visit his daughter and newborn granddaughter, he had to walk around the building to a side door. He explained that, as he stepped off the sidewalk to take a shortcut through a grassy area, he stepped on or near a storm drain and fell forward, landing on the sidewalk. In an affidavit, Gary Lacaze, the risk management administrator for the Hospital, described the grassy area where Mr. Davis fell as a thin strip of grass located between the building and the sidewalk that was not considered to be a pedestrian walkway. According to Mr. Lacaze, the Hospital was not aware of anyone having walked in that area and it had never received a report of anyone claiming to have fallen there. Mr. Lacaze further stated that there was a lighted sidewalk between the two entrances that went directly to the door that Mr. Davis wished to enter and that the storm drain cover, which was inspected after Mr. Davis’ fall, was not broken or dislodged. Mr. Lacaze explained that the purpose of the storm drain was to draw water away from the building and take it beneath the sidewalk through an underground drainage pipe.

The Hospital filed a motion for summary judgment based upon Mr. Davis’ deposition and Mr. Lacaze’s affidavit, arguing that Mr. Davis would not be able to ^demonstrate that either the sidewalk or the storm drain presented an unreasonable risk of harm. Mr. Davis responded by arguing that a genuine issue of fact existed as to whether the grading of the drainage surface was improper, based upon Mr. Davis’ allegation that the grassy area near the storm drain was “uneven.” The trial court granted the motion for summary judgment, finding no evidence in support of the allegations that the grading around the storm drain was defective. Mr. Davis then filed a motion new trial, arguing that new evidence in the form of photographs demonstrated that a defective condition existed. The trial court denied the motion for new trial without comment. On appeal, Mr. Davis contends that the trial court erred in granting summary judgment, arguing that evidence that the area around the storm drain was “uneven” created a genuine issue of material fact and that the question of whether it was reasonable for Mr. Davis to step off the sidewalk should be decided after trial on the merits.

Opinion

Appellate courts review summary judgments de novo, applying the same criteria as the district courts in determining the appropriateness of summary judgment. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. As provided in La.Code Civ.P. art 966(B), summary judgment should be rendered “if 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.” The burden of proof on a motion for summary judgment is set forth in La.Code Civ.P. art. 966(C)(2) as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential | aelements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

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.” Under La.Civ. Code art. 2317.1 (emphasis added):

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.

“Under this provision, in order to recover for damages, a plaintiff must prove: (1) the thing was in the defendant’s custody and control; (2) the thing contained a defect which presented 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 (emphasis added). The claim must fail if the plaintiff fails to prove any one of these elements. Littlefield v. Iberia Bank, 04-1334 (La.App. 5 Cir. 3/15/05), 900 So.2d 925, writ denied, 05-876 (La.5/13/05), 902 So.2d 1032.

“Furthermore, not every minor imperfection or irregularity will give rise to ... liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.” Amest v. City of Breaux Bridge, 01-1034, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 582, 584-85 (quoting LeJeune v. Riviana Foods, 97-1091, p. 3 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1040, writ denied, 98-749 (La.5/1/98), 718 So.2d 418).

Additionally, in Baker v. State, through Department of Health & Human Resources, 05-808, pp. 5-6 (La.App. 3 Cir. 2/1/06), 921 So.2d 1209, 1213 (citations omitted), this court provided the following analysis for consideration in deciding whether a condition poses an unreasonable risk of harm:

In order to decide what constitutes an unreasonable risk of harm, the fact finder must weigh the social utility of the thing versus the likelihood and severity of harm. Whether or not the defect posed an unreasonable risk of harm must be decided on the particular facts and circumstances of the case.

For use of this analysis on summary judgment, see, e.g., Smith v. The Runnels Schools, Inc., 04-1329 (La.App. 1 Cir. 3/24/05), 907 So.2d 109, and Reitzell v. Pecanland Mall Assocs., Ltd., 37,524 (La. App. 2 Cir. 8/20/03), 852 So.2d 1229.

In the present case, it is undisputed that the Hospital provided a lighted sidewalk for access to the doors that Mr. Davis sought to enter. Mr. Davis acknowledged in his deposition that the sidewalk was free from any obstructions or defects. Possibly for a shortcut, Mr. Davis chose to leave that sidewalk and step onto a grassy area that was not considered to be a pedestrian walkway. The photographs that Mr. Davis introduced in support of his motion for a new trial show that grassy area to be a narrow strip of grass located between the sidewalk and the building. The photographs also demonstrate that, by stepping off the sidewalk, Mr. Davis would have saved only one or two steps than had he remained on the sidewalk as it made a ninety-degree turn to the entrance doors.

Lin Moore v. St. Bernard Parish Police Jury, 619 So.2d 719 (La.App. 4 Cir.), writ denied, 625 So.2d 1035 (La.1993), the fourth circuit reversed a trial court judgment in favor of the plaintiff to conclude that a depression in the lawn of a group home did not create an unreasonable risk of harm to the plaintiff who fell while exiting the home by crossing the lawn, where there existed a paved walkway or sidewalk providing access to the home’s front door. In reaching this conclusion, the court stated:

The path plaintiff took when she fell was across a lawn in the dark instead of the walk to the drive which was safe and intended to accommodate persons like the plaintiff. It was not unreasonable for the defendant not to insure that the lawn ivas free of depressions and holes which might present a hazard for someone who would voluntarily traverse the lawn in the dark instead of taking the walkway. ... The trial judge divided responsibility between the parties noting that plaintiff chose to walk across the lawn instead of using the walkway. It follows from this fact that the hole in the darkened lawn was not an unreasonable risk of harm for the plaintiff who really had no good reason to go across the laum in the dark.

Id. at 720-721 (emphasis added).

Similarly, in Blackwell v. Bossier Parish School Board, 32,383 (La.App. 2 Cir. 12/8/99), 747 So.2d 1248, the second circuit also reversed a trial court ruling in favor of a plaintiff who fell after taking a shortcut rather than using the “safe way” that the defendant provided to enter and leave the building. In that case, the plaintiff, a concession stand worker at a high school football game, chose to leave the concession area by stepping on a piece of plywood that had been placed over a muddy area rather than by using a pathway that ran from the rear door of the concession area to a sidewalk. The court noted that “[t]he [defendant] provided a safe way for workers to enter and leave the concession building. At no time was the path plaintiff took to the Lramp ever intended by the [defendant] to be a route to leave the building or access the stadium.” Id. at 1251.

In the present case, the photographs in the record support Mr. Laeaze’s statement that the grassy area where Mr. Davis fell was not intended to be a pedestrian walkway, as well as the Hospital’s contention that it provided a paved sidewalk to access the entrance that Mr. Davis sought. The social utility of locating a drain in that grassy area was explained by Mr. Lacaze, who stated that its purpose was to divert storm water from the side of the building into an underground drainage pipe beneath the sidewalk. Based upon this showing, we find that the Hospital, as the mover on summary judgment, met its burden of showing that the drain, which presumably required some slope in the grass surrounding it for it to function, did not create an unreasonable risk of harm. Mr. Davis has not come forward with any evidence to support his allegation that the drain or the grading around it was otherwise defective. On this record, we find that summary judgment was properly granted.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff/Appellant, John S. Davis.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana In the Interest of M.M.
    No. 06-607.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Anne G. Stevens, New Iberia, LA, for Appellee, State of Louisiana.
    Shentell Brown, Indigent Defender Board, New Iberia, LA, for Defendant/Appellant, M.M.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

I,The State filed a petition for delinquency charging the defendant, a minor, with armed robbery in violation of La.R.S. 14:64. He entered a plea of not guilty. Following a trial, he was adjudicated as a delinquent on the charge of simple robbery in violation of La.R.S. 14:65 and was sentenced to two years in the custody of the Office of Youth Development. He appeals his adjudication on the ground of insufficiency of the evidence. For the following reasons, we affirm as amended and remand with instructions.

Factual and Procedural Background

On August 6, 2005, D.E. was a passenger in a vehicle traveling on Bank Street in New Iberia, Louisiana. D.E. testified that when the car stopped at a stop sign, he noticed a large crowd in the street. According to D.E., a boy named Charles “busted” one of the car windows with some sort of pipe. He testified that he was pulled from the car, hit on the head with a pipe, and had his money stolen. His friend, C.H., helped him into the car and they left.

D.E. stated that he saw M.M., the defendant, on a bicycle located “[o]n the other side of the street on the grass” before and after the car was stopped. However, he did not indicate that M.M. was sitting on the bicycle when the incident occurred. Although he did not know who pulled him out of the car, D.E. testified that Charles hit him in the head with a pipe. He further testified that “they said [M.M.] took my|2money.” Upon further questioning, D.E. admitted that he did not know who stole his money because he was on the ground being hit by the crowd.

Although D.E. was unable to state whether or not M.M. participated in the crime, C.H. testified that M.M. was a participant. C.H. stated that he was sitting in the front passenger seat of the car, and D.E. was in the back seat. According to C.H.’s testimony, the car was at a stop sign when M.M. and a few other boys “busted” the window. M.M. and Charles then pulled D.E. from the car. M.M. hit D.E. with a bat and a pipe while Charles was beating and stomping him. C.H. testified that when D.E. fell, they hit him and reached into his pocket. According to C.H., M.M. took money out of D.E.’s pocket before running away from the scene.

Based on the aforementioned testimony, the trial court adjudicated M.M. as a delinquent on the charge of simple robbery. He was sentenced to two years in the custody of the Office of Youth Development. M.M. has perfected this appeal, arguing that there is insufficient evidence to support his adjudication.

Discussion

Errors Patent

In State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081, this court held that an error patent review is mandated by La.Ch.Code art. 104 Land La.Code Crim.P. art. 920. After reviewing the record, we have found one error patent in need of correction.

The trial court did not give M.M. credit for time served in secure detention prior to the imposition of disposition as required by La.Ch.Code art. 898(A). In State in the Interest of J.F., 03-321, pp. 8-9 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282, 1287-88, this court explained:

We note that the trial court failed to give J.F. credit for predisposition time served in a secure detention facility. Louisiana Children’s Code Article 898(A) provides, in pertinent part, that “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” While we recognize that the 1997 amendment to La.Code Crim.P. art. 880 releases us from recognizing the trial court’s failure to give credit for time served as an error patent in adult criminal cases, we also recognize that the legislature did not amend La.Ch.Code art. 898(A). Consequently, we find it necessary to continue to recognize as an error patent the trial court’s failure to give credit for time served in juvenile cases. In recognizing this error patent, we amend the disposition imposed by the trial court to give J.F. credit for the time served in a secure detention facility before imposition of disposition. See La.Code Crim.P. art. 882(A). Additionally, we remand this matter to the trial court with instructions to amend the commitment and minute entries of the disposition to reflect credit for time served in conformity with La.Ch.Code art. 898(A).

M.M.’s disposition is hereby amended to give him credit for time served in a secure detention facility before the imposition of disposition. Accordingly, this matter is remanded for the trial court to amend the commitment and minute entry of the disposition to reflect credit for time served in conformity with La. Ch. Code art. 898(A).

\Jnsufficient Evidence

M.M. contends that “[t]he State failed to present sufficient evidence to sustain the verdict of guilty of simple robbery beyond a reasonable doubt.” Although he concedes that the State proved that D.E. was robbed, M.M argues that D.E.’s testimony negates any involvement on his part. M.M. “acknowledges that the victim’s testimony was severely contradicted by [C.H.J’s testimony[;]” however, he alleges that “[C.H.] was not in a position to see what he testified to at trial.”

Louisiana Revised Statutes 14:65 provides in pertinent part:

A. Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

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.

After reviewing the record, we find that there is sufficient evidence to support M.M.’s adjudication as a delinquent on the charge of simple robbery. Although D.E. testified that M.M. was on a bicycle on the other side of the street when the car was stopped, C.H. testified that he never saw M.M. on a bicycle. Furthermore, C.H. I .¡testified that M.M. participated in breaking the window and pulling D.E. from the car. C.H. maintained that M.M. took D.E.’s money out of his pocket. Although D.E. and C.H.’s testimonies differed regarding M.M.’s whereabouts and his participation in the crime, the trial court was free to accept or reject all or part of their testimonies. State v. Savoy, 05-92 (La. App. 3 Cir. 11/2/05), 916 So.2d 339.

In addition, we find unpersuasive M.M.’s contention that C.H. was not in a position to see what he testified to at trial. C.H. stated that he was sitting in the front passenger seat when D.E. was being hit on the ground next to the back door of the car. According to his estimate, thirty people were around D.E. while he was being beaten, although only ten were actually hitting him. C.H. stated he had his door open which allowed him to see what was happening to D.E. on the ground. C.H. admitted that it was dark outside; however, he testified that the crime took place in a well-lit area.

Insofar as D.E. placed M.M. near the scene of the crime and C.H. testified that he saw M.M. participate in the crime, we find that a rational trier of fact could have found M.M. guilty of simple robbery.

Accordingly, this assignment has no merit.

DECREE

For the above reasons, we affirm M.M.’s adjudication as a delinquent. However, we amend his disposition to reflect that he is given credit for time served in a secure detention facility before imposition of disposition. We remand this matter for the trial court to amend the commitment and minute entry of the disposition to reflect credit for time served.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . The victim's, the witness's, and the defendant’s initials are being used pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, which states that: "To ensure the confidentiality of a minor who is a party to or whose interests are the subject matter in the proceedings listed in Rule 5-1 (a) or (c) above, initials shall be used in all filings and in opinions rendered by the court of appeal to protect the minor's identity."

      . Louisiana Children’s Code Article 104 provides:
      Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
      (1) The Code of Criminal Procedure in a delinquency proceeding and in a criminal trial of an adult.
      (2) The Code of Civil Procedure in all other matters.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Randall J. MORAIN.
    No. 06-710.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Thomas C. Damico, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant Randall J. Morain.
    Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for Appellee State of Louisiana.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   DECUIR, Judge.

_JjThe Defendant, Randall J. Mo-rain, was charged by bill of information with vehicular homicide, a violation of La. R.S. 14:32.1, and first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2. The Defendant pled guilty to the charged offenses and was sentenced on August 1, 2005. For vehicular homicide, the Defendant was ordered to serve twenty-five years at hard labor, with eight years to be served without the benefit of parole, probation or suspension of sentence. For vehicular negligent injuring, the court sentenced the Defendant to five years at hard labor to run concurrently with the previous sentence. Upon the Defendant’s motion, the court resentenced the Defendant on November 7, 2005 to the statutory maximum of twenty years in prison, with eight years to be served without the benefit of parole, probation or suspension of sentence.

The Defendant is now before this court challenging the sentence for vehicular homicide as excessive and illegal. Finding illegalities in the sentence imposed, we hereby vacate and remand the case for resentencing.

On May 17, 2004, seventeen-year-old Evan Ammons had a flat tire on Interstate 49 while on his way to work. He called his stepfather, Alberto Hinojosa, and his mother for assistance with changing the tire. Mr. Hinojosa, his wife, and their two children arrived, and Mr. Hinojosa parked their van in front of Evan’s vehicle on the shoulder of the interstate. As Mr. Hinojo-sa was assisting Evan with changing the tire, the Defendant’s vehicle veered onto the shoulder and struck them. Evan died at the scene of the accident, and Mr. Hino-josa sustained serious injuries. The Defendant’s blood was tested after the accident, and the blood alcohol content was measured at 0.10g percent.

At the time of the instant offense in May of 2004, the sentencing provision of La. R.S. 14:82.1 mandated a fine of not less than two thousand dollars nor more than | ¡..fifteen thousand dollars and imprisonment with or without hard labor for not less than two nor more than twenty years, with at least one year without the benefit of parole, probation or suspension of sentence. Additionally, the court was required to order that the offender participate in a court-approved substance abuse program or a court-approved driver improvement program, or both.

Our review of the sentencing transcript shows that the sentence imposed on the Defendant is indeterminate. Specifically, the court failed to specify whether the sentence was to be served with or without hard labor. The transcript contains the following pronouncement: “I will re-sentence him to twenty years in prison. Eight years to be served without the benefit of probation, parole, or suspension of sentence.” The court did not specifically state whether the sentence was to be served with or without hard labor. Because the penalty provision for vehicular homicide provides for the sentence to be served with or without hard labor, the sentencing court’s failure to specify renders the sentence indeterminate. See State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166. In Loyden, this court vacated the sentence, remanded the case for the imposition of a determinate sentence, and instructed the trial court to specify whether the sentence was to be served with or without hard labor.

The record before us also exposes additional errors in the sentence imposed on the Defendant. The sentencing court failed to impose a mandatory fine and did not order participation in a substance abuse and/or driver improvement program, as required by La.R.S. 14:32.1(B) at the time of the offense. These issues were raised by assignment of error, and the Defendant correctly characterizes the failure to impose a mandatory fine and require participation in an appropriate substance abuse program as patent error. In 2004, La.R.S. 14:32.1(B) required the imposition of a fine |3of not less than two thousand dollars nor more than fifteen thousand dollars. Additionally, the trial court was required to order participation in a court-approved substance abuse program, court-approved driver improvement program, or both. In this case, the court, in failing to impose these requirements, pronounced an illegally lenient sentence.

Accordingly, because we find the sentence imposed for the crime of vehicular homicide is both indeterminate and illegally lenient, we must vacate and remand for resentencing. Discussion of the Defendant’s contention that his sentence for vehicular homicide is excessive is pretermit-ted by our decision to vacate.

DECREE

The Defendant’s conviction for vehicular homicide and his conviction and sentence for first degree vehicular negligent injuring are hereby affirmed. The Defendant’s sentence for vehicular homicide is vacated, and the case is remanded to the trial court for imposition of a sentence in compliance with the provisions set forth in La.R.S. 14:32.1(B), as well as the views expressed herein.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED.