author: DREW, J.

text:
    GREENWAY LEASING, L.P., and Joy Greenway Groves, Plaintiff-Appellant v. STAR BUFFET MANAGEMENT, INC. and Star Buffet, Inc., Defendant-Appellee.
    No. 45,753-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Cook, Yancey, King & Galloway, Shreveport, LA by Bernard S. Johnson, Kristina B. Gustavson, for Appellant.
    Briethaupt, Dunn, Dubos, Shafto & Wolleson, LLC, Monroe, LA by Patrick Scott Wolleson, Travis Oliver IV, for Ap-pellee.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

12Greenway Leasing, L.P. (Greenway), and Joy Greenway Groves, plaintiffs, appeal the judgment sustaining Star Buffet, Inc.’s (SBI) Declinatory Exception of Lack of Personal Jurisdiction and dismissing their claims against SBI without prejudice. Plaintiffs also contend that the trial court erred in denying their motion for a continuance. The trial court denied as moot dilatory exceptions of vagueness and nonconformity with La. C.C.P. art. 891.

As to the issue of the court’s personal jurisdiction over SBI, the judgment is reversed and this matter is remanded for further proceedings. This partial reversal of the trial judgment essentially renders moot plaintiffs’ complaint about the continuance.

FACTUAL AND PROCEDURAL BACKGROUND

| ¡¿Plaintiffs own the restaurant building at 4630 East Texas Street in Bossier City. Greenway owns the restaurant building at 9176 Mansfield Road in Shreveport. Greenway and Groves leased the Bossier City premises to Barnhill’s Buffet, Inc. (Barnhill), a Tennessee corporation, for March 15, 2003, through September 14, 2010. Greenway leased the Shreveport building to Barnhill for the same time period.

Subsequently, Barnhill filed bankruptcy and on January 8, 2008, the U.S. Bankruptcy Court for the Middle District of Tennessee entered an order authorizing assumption of a number of Barnhill leases including those in Shreveport and Bossier City by Star Buffet Management, Inc. (SBMI), which was ordered to perform all the lessee’s obligations under the Barnhill leases including making payments and any repair and maintenance obligations.

Thereafter, Robert Wheaton, president of both SBMI (a wholly-owned subsidiary of SBI) and SBI, repeatedly attempted to obtain a lower rent obligation from the plaintiffs. Additionally, Wheaton conducted discussions with Ken Greenway and plaintiffs’ attorney concerning their different interpretations about equipment ownership and maintenance obligations. SBMI stopped paying rent on February 1, 2009, but continued to occupy and operate the restaurants until January 2010.

|4On March 31, 2009, plaintiffs sued SBMI and SBI alleging that the two Star Buffet entities were liable, in solido, for the rent due under the entire lease and other monetary obligations along with damages for failure to maintain the rental properties. Urging that SBI and SBMI operated as a single business entity making it solidarily liable, plaintiffs, alternatively, sought to pierce the SBMI corporate veil so as to make SBI liable for the obligations of SBMI. Subsequently, plaintiffs amended their petition to detail specific maintenance and equipment issues.

On June 8, 2009, SBI filed a Declinatory Exception of Lack of Personal Jurisdiction and sought dismissal of plaintiffs’ claims. SBI asserted it had no contacts with the State of Louisiana and SBI’s parent/subsidiary relationship with SBMI did not create personal jurisdiction. Plaintiffs opposed the exception by arguing that SBI transacted business in Louisiana to the extent that the 26th Judicial District Court had jurisdiction. Following the October 8, 2009, hearing, the trial coupt issued reasons for judgment on October 15, 2009, and signed on November 12, 2009, the judgment which sustained SBI’s exception to the court’s jurisdiction and dismissed SBI without prejudice from the litigation. This appeal followed.

On appeal, plaintiffs’ primary complaint is that the trial court erred in finding that there was insufficient evidence to subject SBI to the jurisdiction |ñof the Louisiana court. The refusal of the trial court to continue the matter was an additional complaint by the plaintiffs.

LAW

La. R.S. 13:3201(A)(1) states:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.

Comment (d) explains:

(d) “Transacting business”, as used in Subdivision (a), is a term which is-much broader than “doing business” as defined by earlier Louisiana cases, and the phrase “does .. business” of Subdivision (d) conferring personal jurisdiction over a nonresident on a cause of action arising ex delicto or quasi ex delicto. It is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase “engaged in a business activity” of R.S. 13:3471(1). [13:3471(1) contains supplementary rules for service of process.]

In Frederic v. Zodiac Development, 2002-1178, pp. 4-7, (La.App. 1st Cir.2/14/03), 839 So.2d 448, 452-454, the First Circuit discussed at length the legal requirements for personal jurisdiction by a Louisiana court over a nonresident:

Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Spomer v. Aggressor Intern., Inc., 2000-1646, (La.App. 1st Cir.9/28/01), 807 So.2d 267, 271, writ denied, 2001-2886 (La.1/25/02), 807 So.2d 250. Under La. R.S. 13:3201, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the Louisiana Constitution and the Constitution of the United States. Therefore, the limits of La. R.S. 13:3201 and the limits of constitutional due process are coextensive, and the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements. A&L Energy, Inc. v. Pegasus Group, 2000-3255, (La.6/29/01), 791 So.2d 1266, 1270.

In order to subject a nonresident defendant to a personal judgment, the due process test requires that the defendant must have certain minimum contacts with the forum state so that maintaining the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgmt. and Consulting, 586 So.2d 103 (La.1991).

In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), the Supreme Court interpreted the due process clause and recognized a distinction between two types of personal jurisdiction— “general” and “specific.” A state exercises general jurisdiction when the defendant’s contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant’s contacts with the forum. Spomer v. Aggressor Intern, Inc., supra at 271. The two-part minimum 17contacts/fairness analysis applies to the assertion of both specific and general jurisdiction, de Reyes, supra.

When a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the defendant’s purposeful direction of its activities at a resident of that forum with litigation resulting from alleged injuries arising out of or related to those activities satisfies the requirement of meaningful minimum contacts, de Reyes, supra. When the cause of action, however, does not arise out of the defendant’s purposeful contacts with the forum, due process requires that the defendant be engaged in continuous and systematic contact to support the exercise of general jurisdiction. A&L Energy, Inc. v. Pegasus Group, supra. Contacts may be effected by mail and electronic communication, as well as physical presence. Spomer, supra.

The second phase of the analysis is a determination of the fairness of the assertion of jurisdiction. The defendant’s conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

Once the plaintiff proves the defendant has sufficient-minimum contacts to meet his burden of proof, a presumption of reasonableness of j ¿jurisdiction develops. Then the burden shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice that the presumption of reasonableness created by the defendant’s minimum contacts with the forum is overcome. Spomer, supra. In Asahi Metal Indust. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Supreme Court directed that the forum court examine the following to determine reasonableness of the jurisdiction: the defendant’s burden in litigating in the forum state, the forum state’s interest, the plaintiffs interest in convenient and effective relief, the judicial system’s interest in efficient resolution of controversies, and the state’s shared interest in furthering fundamental social policies.

DISCUSSION

Personal Jurisdiction

Plaintiffs correctly claim that the district court has specific jurisdiction over SBI because this litigation arises out of and is related to SBI’s contacts with Louisiana. Noting that they do not rely upon the alter ego theory to obtain personal jurisdiction, plaintiffs cite SBI’s own contacts with Louisiana because SBI purposefully directed activities at residents of the forum and this litigation resulted from injuries related to those activities.

In Iberiabank v. Thornton, 45,332 (La.App.2d Cir.6/23/10), 44 So.3d 720, cited by plaintiffs, two guarantors of loans made by the bank were subject to the jurisdiction of the Louisiana courts even though they had not physically entered the state. Sufficient minimum contacts were present based upon the choice of Louisiana law in the loan documents along with other factors: the loan' documents, including the guaranties, identified the Iberia office in Monroe, Louisiana, as the location where the note payments were to be made. Further, defendants directed to the Iberia branch in New Iberia requests for modifications of various promissory notes. Id.

As to specific jurisdiction, SBI argued that plaintiffs failed to show that SBI had any contact with Louisiana which could have given rise to this lawsuit. SBI did not guarantee the SBMI obligations. SBI rejected any significance to the use of SBI letterhead in correspondence with plaintiffs and their attorney concerning the disputed issues. In the defense view, that correspondence did not give rise to this litigation and had as a sole purpose the extrajudicial resolution of the conflict.

SBI’s position is belied by documentation of its numerous activities directed toward the plaintiffs. The varied actions set out below constitute sufficient minimum contacts and meet plaintiffs’ burden' of proving SBI | mpurposefully transacted business with plaintiffs in this state. Moreover, this litigation arose from SBI’s activities.

■ Robert Wheaton, president of both SBMI (a wholly-owned subsidiary of SBI) and SBI (which has no employees), issued a press release on December 6, 2007, to Restaurant News Resource entitled “Star Buffet, Inc. Agrees to Acquire Buffet Restaurants.” The announcement stated that subject to approval by the bankruptcy court and certain creditors, SBI planned to acquire the restaurants and restructure operations. SBMI was not mentioned in .the notice.

■ After closing, Wheaton made five or six visits to Shreveport/Bossier to inspect the restaurants and meet Ken Greenway; Wheaton attempted to negotiate lower rents on the assumed leases and also to negotiate disputes with the plaintiffs concerning equipment ownership and maintenance obligations.

H Following a meeting between Whea-ton and Ken Greenway in Shreveport, Wheaton sent a letter dated 10/10/08 to Ken Greenway on SBI letterhead from fax machine identified as starbuffet-phx and signed by Wheaton as President and CEO. Therein, Wheaton reduced to writing three proposals he had presented to Greenway at their meeting. SBMI is not mentioned in the correspondence which suggested returning the businesses to plaintiffs and terminating the leases, continuing the leases approximately two years or until restructuring or modifying the leases with reduced rents and with lease obligations guaranteed by SBI.

■ In February 2009, SBMI stopped paying rent to plaintiffs because Wheaton stated that he decided SBMI’s limited capital would be more productive elsewhere. According to Wheaton, neither store had a positive cash flow without consideration of the rent to plaintiffs.

• ■ Dated 1/14/09 on SBI letterhead from fax machine identified as star-buffet-phx, Wheaton sent a letter to Ken Greenway proposing three alternatives to settle disputes over restaurant equipment ownership . which included reduced rent and for terminating the leases | nearly in exchange for SBI’s short term guaranty of rent. Wheaton signed as President and CEO, with no mention of SBMI in the letter;

H On 2/23/09, Wheaton responded to plaintiffs’ 2/16/09 notice of default with a letter to plaintiffs’ attorney. The transmittal was on SBI letterhead from fax machine identified as starbuffet-phx with a SBI fax cover sheet. Signing as President and CEO, Wheaton set out five possible courses of action, all of which contemplated the tenant terminating the leases early. Wheaton concluded the letter by observing that if plaintiffs rejected his proposals, the best plaintiffs could do would be to get a judgment against SBMI, which did not have the financial strength to pay any judgment;

H In a 3/10/09 letter to plaintiffs’ attorney, Wheaton sent a letter on SBI letterhead from a fax machine identified as starbuffet-phx with a SBI fax cover sheet and signed by Wheaton as President and CEO. Wheaton stated that SBMI had a limited amount of equity and significant debt. According to Wheaton, SBMI sustained operating losses and SBI was unwilling to contribute further capital so that SBMI was unable to meet its obligations including those owed the plaintiffs. Wheaton observed plaintiffs had refused to renegotiate leases as others had done in exchange for SBI guaranties. Renegotiation was still available to plaintiffs but with more limited range of alternatives; and

H Most significantly, among the obligations assumed by the tenant which acquired the lease rights to the plaintiffs’ properties in the Tennessee bankruptcy proceeding was the requirement to insure the properties. Liberty Mutual issued the “Certificate of Property Insurance” on both restaurants stating, “This is to certify that (Name and Address of the Insured);

Star Buffet, Inc.

1312 N. Scottsdale Road

Scottsdale, AZ 85257-3410[.]”

SBMI is not mentioned.

112Our de novo review of the record shows that SBI had sufficient minimum contacts with the State of Louisiana to subject SBI to the specific personal jurisdiction of this court. Moreover, SBI’s contacts arose out of SBI transactions in this state and pertained to this litigation. In addition to Wheaton’s numerous trips to Shreveport/Bossier to deal with matters related to these properties, the correspondence establishes SBI’s participation in the dispute. SBI’s participation in matters in this state directly related to the litigation is also established by SBI acquiring in its own name the insurance required by the leases. The quality and nature of SBI’s activities in Louisiana justify the state’s exercise of its judicial power over SBI.

With this finding of sufficient minimum contacts to subject SBI to the jurisdiction of this court, the presumption of reasonableness of that jurisdiction attaches. Nothing in this record suggests that subjecting SBI to jurisdiction in Louisiana would be unreasonable in light of the traditional notions of fair play and justice. The restaurants and the disputed matters are located in Louisiana. SBI personnel made trips to this state in furtherance of that business and directed correspondence to the Louisiana plaintiffs and their attorneys concerning the disputed issues. SBI is represented by Louisiana attorneys. Louisiana is clearly the most convenient and practical |iaforum and SBI has made no showing of any burden in litigating in the 26th Judicial District Court.

This court’s findings are unrelated to the merits of the dispute which have yet to be litigated. The judgment of the trial court is reversed as to the issue of the personal jurisdiction of SBI and this matter is remanded for further proceedings.

Continuance

Although the hearing on the district court’s jurisdiction over SBI was held and the trial court ruling was made, the plaintiffs’ attorney reurged at the conclusion of the hearing that plaintiffs needed more time to seek clarification and supplementation of discovery information belatedly provided by the defendants only the evening before the hearing on jurisdiction. This was the subject of plaintiffs’ alternative motion for continuance. The result of this court’s judgment gives plaintiffs the opportunity to seek any additional defense discovery material prior to litigation on the merits of any liability which SBI may have in this dispute.

Plaintiffs in argument referred to what they determined to be contradictory and irreconcilable information provided by Wheaton in the Tennessee bankruptcy court and in his deposition contained in this record. |uThese complaints deal with the merits of the dispute and are not before this court.

DECREE

That portion of the judgment signed November 19, 2009, sustaining Star Buffet, Inc.’s Declinatory Exception of Lack of Personal Jurisdiction and dismissing without prejudice Star Buffet, Inc., from the litigation is reversed. In all other respects, the judgment is affirmed. This matter is remanded for further proceedings in accordance with this opinion. Costs are assessed against Star Buffet, Inc.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . Greenway Leasing, L.P., is owned by Ken Greenway. In the opinion, Greenway refers to the plaintiff business, and Ken Greenway is referred to by name.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Reggie EASON, Appellant.
    No. 45,872-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.
    Reggie Eason, Pro Se.
    J. Schuyler Marvin, District Attorney, Appellee John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

Pefendant was originally charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967(A). In accordance with a plea agreement, a pre-sentence investigation report was filed, Defendant pled guilty as charged, potential sentencing exposure was capped at 20 years and the State agreed not to file a habitual offender bill of information against Defendant. On February 1, 2010, the trial judge sentenced Defendant to 20 years’ imprisonment at hard labor with the first two years to be served without the benefit of parole, probation or suspension of sentence. Defendant was given credit for time served and the sentence was ordered to run concurrent to any other sentence Defendant was serving.

|sBefore this court is a motion to withdraw filed by Defendant’s appellate counsel. For the reasons stated herein, we grant the motion to withdraw and affirm Defendant’s conviction and sentence.

PROCEDURAL HISTORY AND DISCUSSION

Defendant’s appellate counsel has filed an Anders/Benjamin brief seeking to withdraw alleging that he could find no non-frivolous issues to raise on appeal. See Anders v. State of Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history of the case and the evidence presented during the guilty plea hearing, including the video and audio recordings taken of the drug transaction wherein Defendant sold cocaine to the police informant. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Defense counsel has further verified that he has mailed copies of the motion to withdraw and his brief to Defendant in accordance with Anders, Jyles, Mouton and Benjamin, supra.

The State has filed a letter in lieu of an appellate brief in this matter, concurring that there are no nonfrivolous issues to raise on appeal. On |4September 8, 2010, this Court rescinded the previously fixed pro se briefing deadline and notified Defendant that he may file an appellate brief in this matter within 30 days of the order and request to view the appellate record within 10 days of the order. Defendant has not requested the record and has not filed an appellate brief in this case.

This Court has conducted an error patent review of the appellate record and no errors patent were found. Furthermore, the record and the plea agreement support Defendant’s sentence of 20 years’ imprisonment at hard labor with the first two years to be served without the benefit of parole, probation or suspension of sentence. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Darnell JENKINS, Appellant.
    No. 45,873-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Mark O. Foster, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.

      Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

IgDarnell Jenkins pled guilty to one count of forcible rape and one count of molestation of a juvenile under the age of 13. He was sentenced to concurrent sentences of 40 years at hard labor without benefit of probation, parole, or suspension of sentence for the forcible rape conviction and 50 years at hard labor without benefit of probation, parole, or suspension of sentence for the molestation conviction. Jenkins appeals raising claims of double jeopardy and excessive sentences. We affirm the convictions and sentences.

Facts

On April 8, 2009, 20-year-old Darnell Jenkins was at the Webster Parish home of his cousin and her husband. When the couple wanted to go out to eat, Jenkins volunteered to babysit the couple’s four children. They left the house and returned about 30 minutes later. When they returned, the |3child told them that Jenkins had bitten her neck and had “put himself in her pee-pee and boo-boo.” The child’s father left the room immediately and ran out of the house trying to catch Jenkins, who had fled the scene.

The child was examined by a forensic examiner and swabs were taken from her genital and anal area and on the mark on her neck. The results were consistent with the DNA of two people, the child and Jenkins. Jenkins was charged by bill of information with one count of aggravated rape of a juvenile, victim being under the age of 13, a violation of La. R.S. 14:42(A)(4), and one count of molestation of a juvenile under the age of 13, a violation of La. R.S. 14:81.2(E).

A plea bargain agreement was entered and the defendant was allowed to plead guilty to an amended charge of one count of forcible rape, a violation of La. R.S. 14:42.1, and to one count of molestation of a juvenile. The only- sentencing agreement was that sentences imposed would run concurrently.

At the November 30, 2009 guilty plea hearing, the pertinent statement of facts as recited by the state was as follows:

The state would present evidence which would show that Darnell Jenkins was at the house of [Jenkins’ cousin] and her husband and was in the — left alone with four juveniles while they went to get something to -eat. The State would, if, this matter were to go to trial, would present evidence that upon [Jenkins’ cousin’s] return |4with her husband Mr. Jenkins appeared sweaty and apprehensive and that the parents immediately went to the girl’s room and that’s when they talked to juvenile with the initials of W. J., ... and she stated that Darnell, also called “Tank”, had bit her on her neck and had put himself in her pee-pee and boo-boo, and upon the father hearing this he left the bedroom and Mr. Jenkins took off running out of the house and through the woods.
The State would present evidence which would show that the juvenile, initials W.J., ... was examined by forensic examiner Cindy Finley and did present evidence which was collected for DNA and subsequently sent and examined by DNA and a profile obtained from the epithelia fraction of the anal swab was consistent with being a mixture of DNA from at least two individuals. And also a swab of the bite mark on the juvenile’s neck was taken and it- was consistent with a mixture from at least two individuals, both being (victim’s name omitted) — I mean, juvenile W.J. and Darnell Jenkins and that took place in Cotton Valley here in Webster Parish.

The trial judge asked Jenkins if he agreed that the statement of the facts was basically correct, and he answered affirmatively and then pled guilty to each of the charges. The trial court accepted his guilty pleas and found them to be voluntary and made with the full understanding of his rights and based on sufficient evidence.

' The sentencing hearing was held on February 22, 2010. The trial judge noted that Jenkins had pled guilty to forcible rape and molestation of a juvenile under the age of 13 and ordered a presentence ■ investigation | sreport (“PSI”). Jenkins' apologized for “everything that occurred.” The court noted that Jenkins’ birthday was August 13, 1988, and that at the time of the offense the defendant was 20 years old. The trial judge informed Jenkins that the mother of the victim had requested that he be given the maximum sentence.

The trial judge also reviewed Jenkins’ personal history, stated that he had considered the provisions of La.C.Cr.P. art. 894.1 and found Jenkins to be in need of correctional treatment that would be provided most effectively by commitment to an institution. The trial judge noted that a lesser sentence would deprecate the seriousness of his crime, and that although the defendant had been allowed to plead guilty to forcible rape, he had actually committed an aggravated rape of a nine-year-old child which carried a mandatory life prison sentence. The trial judge noted that it was probably because of Jenkins’ young age and the lack of prior criminal history that he had been allowed to plead guilty to forcible rape. The court considered both aggravating and mitigating factors, and noted that the defendant did not have a criminal history prior to this very serious crime. The trial judge sentenced the defendant to 40 years at hard labor - to be' served without benefit of probation, parole or suspension of sentence for the charge of forcible rape, and 50 years at hard labor to be served without benefit of | r,probation, parole or suspension of sentence for the charge of molestation of a juvenile under the age of 13 years. The sentences were to run concurrently, and he was to receive credit for time served.

The defendant filed a motion to reconsider sentence on the grounds that the sentence was unconstitutionally excessive and grossly out of proportion to the seriousness of the offense. Specifically, he contended that the maximum term of 40 years for’forcible rape should be reserved for the worst type of offenders and that incarceration would not rehabilitate him. Jenkins requested a probationary period after any incarceration for monitoring and his participation in social programs to assist him in his recovery.

After the denial of his motion to reconsider sentence, Jenkins lodged this appeal.

Discussion

Double Jeopardy

In his first assigned error Jenkins argues that his convictions of both forcible rape and molestation óf a juvenile were based on the single abbreviated recitation of facts by the state at the hearing on the guilty plea, and thus, subjected him to double jeopardy. Specifically, Jenkins claims that the forcible rape guilty plea precludes the molestation conviction 17because the only evidence submitted to support the forcible rape conviction was the same evidence that supported the molestation conviction. Jenkins made no objection to the trial court and raises this issue for the first time on appeal.

The Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offenses to be twice put into jeopardy of life or limb. The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article 1, § 15, of the Louisiana Constitution contains a similar guarantee. State v. Redfearn, 44,709 (La.App.2d Cir.9/23/09), 22 So.3d 1078, writ denied, 09-2206 (La.4/9/10), 31 So.3d 381.

Double jeopardy is defined in La.C.Cr.P. art. 596 as follows:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Forcible rape is defined in La. R.S. 14:42.1 as follows:

A. Forcible rape is rape committed when the anal, oral or vaginal sexual intercourse is deemed to be without the | Rlawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
B. Whoever commits • the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

In relevant part, molestation of a juvenile is set forth in La. R.S. 14:81.2 as follows:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence .of any child under the age of seventeen, where there is an age difference of greater than two years between the. two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.
E. (1) Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor -for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for | ¡¡each offense without violating the prohibition against double jeopardy. State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347. A claim, for double jeopardy can be raised for the first time on appeal, even if not raised in the trial court. State v. Gay, 36,357 (La.App.2d Cir.10/23/02), 830 So.2d 356.

Generally; the two tests used by Louisiana courts when examining double jeopardy violations are the “distinct fact” or the Blockburger test (Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), and the “same evidence” test. The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. If multiple charges are double jeopardy under Block-burger, then the inquiry need go no further. However, even if there is not a finding of double- jeopardy under Block-burger, Louisiana’s same evidence test must be applied to see if the state’s greater protection is implicated. Redfeam, supra, at 1090. The same evidence test is articulated as follows: If all the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. Id. The same evidence test is broader in |inconcept than Blockburger, the central idea being that one should not be punished twice for the same course of conduct. Id.

A claim of double jeopardy after a guilty plea requires a different analysis. Guilty pleas constitute a waiver of all non-jurisdictional defects and generally courts review them only to ensure that the plea was both counseled and voluntary. State v. Arnold, 01-1399 (La.4/12/02), 816 So.2d 289, citing, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); State v. Sepulvado, 44,764 (La.App.2d Cir.10/28/09), 25 So.3d 899, writ denied, 09-2590 (La.5/28/10), 36 So.3d 245. The United States Supreme Court and the Louisiana Supreme Court have created an exception to this rule for double jeopardy. State v. Arnold, supra. That exception applies only where on the face of the record the court had no power to enter the conviction or impose the sentence. Id. Properly applied, the exception requires limited review of only the charging documents and plea colloquy. Id.

From a review of the indictment in this case, we find that Jenkins has failed to show a double jeopardy violation. The charging instrument includes one count of aggravated rape and one count of molestation of a juvenile, two separate offenses under Louisiana law which require different proof. The language of the charging instrument, on its face, raises no double jeopardy |n concerns and would have permitted the state to prosecute two separate and distinct offenses during the same criminal episode or transaction. Likewise, the guilty plea colloquy is sufficient to establish that two separate criminal acts of anal and vaginal intercourse occurred. Thus, a facial review of the record fails to establish a double jeopardy violation.

Excessive Sentence

Jenkins also argues that the terms of the imposed sentences are grossly out of proportion to the facts of the crime and were further increased by the trial court’s imposition of the entirety of the sentences without benefit of parole, probation, or suspension of sentence, thereby nearly doubling the amount of time he would have to spend in prison. Jenkins also argues that the trial court ignored La.C.Cr.P. art. 894.1 review, particularly as to mitigating factors. H¿ requests that the court reduce the sentence terms by one-half, i.e., 25 years on the molestation conviction and 20 years on the forcible rape conviction.

In his motion to reconsider sentence, Jenkins raised no issue with the application of La.C.Cr.P. art. 894.1, invoking only a bare excessive sentence claim. The defendant is required under La.C.Cr.P. art. 881.1 to file a motion to reconsider and set forth the “specific grounds” upon which the motion is based in order to raise an objection to the sentence on appeal. If Uthe defendant does not allege any specific ground or present any argument or evidence not previously considered by the court at original sentencing, but simply alleges that the sentence is excessive, then the defendant does not lose the right to appeal the sentence. The defendant is relegated to having the appellate court consider the bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Willis, 31,561 (La.App.2d Cir.1/20/99), 728 So.2d 493; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Edwards, 45,314 (La.App.2d Cir.6/23/10), 42 So.3d 449; State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733. In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, supra; State v. Colgin, 43,416 (La.App.2d Cir.8/13/08), 989 So.2d 876, writ denied, 08-2304 (La.5/15/09), 8 So.3d 581.

1 isThe trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Colgin, supra; State v. Shaw, 37,168 (La.App.2d Cir.6/25/03), 850 So.2d 868. A sentence within statutory limits will not be set aside as excessive absent manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Colgin, supra.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Colgin, supra; State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.4/4/08), 978 So.2d 321. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Colgin, supra; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

For the forcible rape conviction, Jenkins received the maximum forty-tyear14 sentence. However, he faced a possible life sentence without benefits for the charged crime of aggravated rape of a child under 13. Thus, even the maximum 40-year sentence without benefits for the pled offense substantially benefitted Jenkins and was within the trial court’s broad sentencing discretion. Jenkins also faced potential sentencing exposure of 99 years at hard labor with a minimum of 25 years without benefits on the molestation of a juvenile conviction. Therefore, his receipt of a mid-range 50-year sentence afforded him a substantial benefit from the plea agreement even with the additional 25-year denial of benefits. Jenkins also received the benefit of concurrent sentences as part of the plea agreement which effectively limits his jail time to 50 years for both offenses.

The facts of record show that Jenkins twice sexually violated an innocent child after her parents entrusted her to his care. At least one of those acts included the crime of aggravated rape. Such egregious and heinous acts qualify Jenkins as the worst possible offender despite his contrary arguments and first-felony status. Considering the great discretion afforded the trial court in fashioning Jenkins’ punishment, we cannot find the imposed sentences grossly disproportionate to the severity of the offense or shocking to the sense of justice.

For the foregoing reasons, Jenkins’ convictions and sentences are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Eddie C. JOHNSON, Jr., Appellant.
    No. 45,885-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Carey J. Ellis, III, for Appellant.
    Charles R. Scott, II, District Attorney, William J. Edwards, Tommy J. Johnson, Sarah S. Midboe, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

|2The defendant, Eddie C. Johnson, Jr., was charged by indictment with two counts of aggravated rape, in violation of LSA-R.S. 14:42(A)(4). After a jury trial, the defendant was found guilty as charged of both counts. The defendant’s motions for new trial and for post-verdict judgment of acquittal were denied. The trial court sentenced defendant to serve life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for each count, with the sentences to run concurrently. The defendant appeals his convictions and sentences. For the following reasons, we affirm.

FACTS

During the evening of April 24, 2007, the defendant was visiting at the home of C.W., a single mother of four boys, K.W., J.W., X.W. and S.W. After waking from a nap, C.W. walked into her sons’ bedroom, which contained a bunkbed. She saw K.W. lying in the top bunk with his feet up Lagainst the. wall and defendant was standing between the child’s legs. After the defendant' left the house, C.W. spoke with K.W. and called the police. During an interview at the Gingerbread House, K.W. stated that defendant had put his mouth on KW.’s genital area a number of times. K.W.’s cousin, J.O., subsequently confided to a forensic interviewer that the defendant had also performed oral sex on him.

The trial court conducted pretrial hearings on various evidentiary issues, finding that the videotaped interviews of the minor children and the incriminating statements made by defendant after his arrest would be admissible at trial. The state filed a notice, under LSA-C.E. art. 412.2, of its intent to use at trial eviclepce of similar crimes, wrongs or acts committed by the defendant. After a hearing, the trial court held that testimony regarding the defendant’s prior sexual abuse of two other minor children, A.S. and J.W., would be admitted into evidence.

At trial,. C.W. testified that she became friends with the defendant and that he watched her children after school when she was working. C.W. stated that J.W. and K.W. had spent the night at the defendant’s home on occasion. C.W. testified that at one point she had told the defendant not to come to her house after K.W. told her that defendant had “messed with him,” without giving details. However, C.W. eventually allowed defendant to return to her chouse after he said that K.W. was mad at him because he did not buy K.W. a certain toy.

C.W. testified that one evening in April 2007, she walked into the bedroom shared by two of her sons and saw K.W. lying on the top bunk with the defendant standing between KW.’s legs at the foot of the bed. She asked the defendant what was happening and he replied “nothing.” Once the defendant left, C.W. asked K.W. what had happened and the child said that when he woke up, his private area was wet and there was some money in his pants’ pocket. C.W. then called the police, who questioned each of the children separately and asked C.W. to bring them to the Gingerbread House, a child advocacy center, to be interviewed at a later date. A few days after the incident, the defendant gave C.W. a letter, which stated that someone named Mike Jacobs was the person whom she had seen standing in her sons’ room that night.

The victim, K.W., testified that he knew the defendant because he used to live close to his family and that he had stayed at the defendant’s house occasionally. K.W. stated that he recalled going to the Gingerbread House to answer questions and later watching a video recording of the interview. In the video, which was played in court, K.W. told the forensic interviewer that he was 11 years old and that the defendant had touched his |5penis with his mouth on several occasions. K.W. stated that he was in the fifth grade the first time, and in the sixth grade the last time, that defendant had touched him in that manner. During the interview, K.W. was supplied with an anatomical drawing of a boy and he circled the genital area to indicate where he was touched by the defendant.

In his trial testimony, K.W. stated that the video was an accurate recording of his prior statement. K.W. testified that the defendant gave him money and told him not to tell anyone about what had happened. On cross-examination, K.W. explained that he was touched by defendant three separate times the day his mother caught defendant in the bedroom. K.W. stated that the defendant first touched him when he was in his room alone. The second time, K.W. was in his brothers’ room and afterward, defendant gave K.W. five dollars and told him not to tell anyone. The third time was when KW.’s mother caught the defendant and asked him to leave.

The victim of the second charged offense, J.O., testified that C.W. was his aunt, that he went to her house every day after school and that the defendant watched J.O. and his cousins while their mothers worked. J.O. recalled being questioned at the Gingerbread House. The video recording of J.O.’s interview was played in open court. In the video, J.O. stated that he was 11 years old and that once, after waking up, he had caught the defendant |6touching his penis with his mouth. J.O. stated that he had also seen the defendant attempting to perform oral sex on K.W. During trial, J.O. testified that he did not initially tell the interviewer at the Gingerbread House that he had been sexually abused by the defendant because J.O. thought his father would hurt the defendant if he knew. J.O. stated that although he had told the interviewer the defendant had sexually abused him only once, actually the abuse had happened many times.

KW.’s brother, J.W., testified that the defendant lived around the corner from his family and that he and K.W. had spent the night at the defendant’s house a few times. J.W. stated that the brothers slept in the same room as the defendant, who slept in the same bed as K.W. In the Gingerbread House interview, J.W. stated that he had been told by K.W. that defendant had performed oral sex on K.W. while he was sleeping. J.W. said that the defendant had abused K.W. at the defendant’s house and at J.W.’s house. At trial, contrary to his statement at Gingerbread House, J.W. testified that defendant had sexually abused him during the school year. J.W. stated he did not tell the interviewer about being abused by defendant because he was embarrassed and did not want to talk about the matter.

Jennifer Flippo testified that in 2007, she was employed as a forensic interviewer with the Gingerbread House. Flippo stated that the videotapes 17shown to the jury were accurate recordings of her interviews with the children. She testified that during their interviews, both K.W. and J.O. had indicated, using an anatomical drawing, that the defendant had put his mouth on the child’s penis.

A.S. testified that in August 1999 he had contact with the defendant when he visited his cousin, who lived in the same vicinity. A.S. stated that he was either 10 or 11 years old when he met the defendant. A.S. testified that on one occasion, when he left his cousin’s house to go across the street to buy candy from a woman, the defendant followed him, picked him up by his ankles and performed oral sex on him. A.S. stated that he later told his mother about the abuse and she filed a complaint with the police. A.S. testified that he told the police he had been sexually abused by the defendant, but he was never arrested.

Shreveport Police Lieutenant Dennis Pratt testified that in August 1999, he responded to a complaint that defendant had committed sexual battery upon A.S., a minor child. Officer Pratt stated that he interviewed A.S. about the incident and also questioned the defendant, who denied the allegations and said that A.S. was a troublemaker. Officer Pratt testified that the defendant was not arrested then because of a lack of evidence, but that | aother allegations against defendant at the time would have changed the course of his investigation.

Shreveport Police Detective Jeff Allday testified that on April 24, 2007, he responded to a call to C.W.’s home to investigate claims of sexual abuse. Detective Allday spoke with C.W. about what she had observed and told her to bring the children to the Gingerbread House to be interviewed. Allday testified that he advised defendant of his Miranda rights following his arrest and that defendant agreed to answer questions. The defendant initially denied any wrongdoing, stating that another person, “Michael Jacobs,” was the actual perpetrator. After being told that no such person could be located, the defendant admitted he had been present at C.W.’s house on the evening in question.’ Detective Allday stated that he told the defendant that DNA had been collected from K.W. at the scene that evening, an untrue statement. Detective All-day testified that defendant then indicated his DNA might be present and that defendant later confessed to performing oral sex on K.W. and J.O. The audio recording of the defendant’s confession to sexually abusing both K.W. and J.O. was played in open court.

The defendant testified at trial and denied that he had raped K.W. and J.O. Defendant stated that he was attempting to pick up K.W. to take him to his room when C.W. saw him standing between the child’s legs. The 19defendant testified that he had lied to Detective Allday when he was interviewed because he was depressed and fearful following his arrest. The defendant stated that he was telling the truth at trial because he was no longer afraid. On cross-examination, the defendant admitted that “Michael Jacobs” did not exist. He also admitted that K.W. and J.W. had spent the night in his bedroom, but denied sleeping in the same bed with'either of the boys. The defendant stated that K.W., J.O., J.W. and A.S. were all lying when they testified about the sexual abuse committed by defendant.

Thereafter, the jury found defendant guilty as charged on both counts. Defendant’s motions for new trial and post-verdict judgment of acquittal were denied. The trial court imposed a sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on each count, with the sentences to run concurrently. The defendant’s motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

The defendant contends the evidence was insufficient to support his convictions of aggravated rape. Defendant argues that the evidence did not prove guilt beyond a reasonable doubt because no eyewitnesses were presented to corroborate the children’s vague and inconsistent testimony.

LSA-R.S. 14:42(A)(4) provides in pertinent part:

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond1 a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence1 must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential | element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does1 not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/1,1/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

1 TgIn the present case, K.W. and J.O. were interviewed at the Gingerbread House when they were both 11 years old and each child stated that he had been sexually abused by the defendant. Their subsequent trial testimony, while revealing that the sexual abuse was more extensive than previously divulged, was substantially similar to their earlier allegations. The victims’ testimony, which was obviously believed by the trier-of-fact, was sufficient to prove that the defendant committed the charged crimes. Additionally, the defendant confessed to having performed oral sex on K.W. and J.O. when they were under the age of 13; although he later recanted, the jury chose to believe K.W. and J.O. and not the defendant. This court affords great deference to such credibility determinations. Based upon this record, the evidence presented overwhelmingly supported the defendant’s convictions. This assignment of error lacks merit.

Responsive Verdicts

The defendant contends the jury charge as to Count Two improperly failed to include the responsive verdicts of molestation of a juvenile and indecent behavior with a juvenile. The defendant argues that because the allegations against the defendant were similar for both counts, the jury could have been confused as to why there were fewer responsive verdicts for [ lsCount Two, and thus chose to find him guilty of aggravated rape to make the verdicts coincide.

LSA-C.Cr.P. art. 814(A)(8.1) provides the responsive verdicts for the offense of aggravated rape of a child under the age of thirteen:

Guilty.
Guilty of attempted aggravated rape.
Guilty of forcible rape.
Guilty of attempted forcible rape.
Guilty of simple rape.
Guilty of attempted simple rape.
Guilty of sexual battery..
Guilty of molestation of a juvenile.
Guilty of attempted molestation of a juvenile.
Guilty of indecent behavior with a juvenile.
Guilty of attempted indecent behavior with a.juvenile.
Not guilty.

LSA-C.Cr.P. art. 814(C) provides:

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

LSA-C.Cr.P. art. 801 states:

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

1,4Before a conviction can be reversed on the ground that the trial court failed to include all responsive verdicts, the defendant must demonstrate that the exclusion of a responsive verdict was prejudicial and that fundamental due process has been violated. State v. Serio, 94-131 (La.App. 5th Cir.6/30/94), 641 So.2d 604. An erroneous jury charge is not prejudicial when the jury returns a verdict of guilty of the crime charged. State v. Freeman, 444 So.2d 243, 245 (La.App. 1st Cir.1983) (citing State v. Prestridge, 399 So.2d 564 (La.1981)).

In the present case, contrary to the state’s contention that defendant failed to object to the exclusion of the responsive verdicts for Count Two, the record shows that prior to the court’s charge to the jury, defense counsel objected “to omitting any of the possible responsive verdicts as to the aggravated rape charges.” Thus, the record does not indicate that defendant waived the issue regarding exclusion of the responsive verdicts.

However, because the jury returned a verdict of guilty as charged for both counts of aggravated rape, notwithstanding the fact that the responsive verdicts of molestation of a juvenile and indecent behavior of a juvenile were given for the first count, the defendant has failed to demonstrate that he was prejudiced by said exclusion. State v. Serio, supra; State v. Freeman, supra. Thus, the assignment of error lacks merit.

11fiWe have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Sheena COULBERSON, Plaintiff-Appellee v. EDWARDS TRANSMISSION (Andy Edwards), Defendant-Appellant.
    No. 45,928-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Barry W. Dowd, Monroe, LA, for Appellant.
    Sheena Coulberson, In Proper Person.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

|2Plaintiff, Sheena Coulberson, filed a pro se petition in Monroe City Court seeking the return of her vehicle, a 2004 Chrysler PT Cruiser, and damages for “pain and suffering” from defendant, Andy Edwards (owner of Edwards Transmission). Defendant, also acting pro se, filed a response on company stationery in the form of a “To Whom It May Concern” letter. On the two-page petition form furnished by the City Court, plaintiff admitted to having her car towed to defendant’s transmission repair shop, but she denied authorizing the actual repair of the car. Defendant did repair the transmission and, because plaintiff could not pay for those repairs, he retained possession of the vehicle. The trial court rejected defendant’s claim in which he sought payment for repairs, found in favor of plaintiff and ordered defendant to pay $1,500 in general damages and. to return plaintiffs vehicle upon her payment of an $85 towing fee. Defendant now appeals. For the reasons expressed herein, we affirm in part and reverse in part.

Facts and Procedural Background

|sOn Friday night, February 12, 2010, plaintiff, Sheena Coulberson, called the listed, after-hours phone number of Edwards Transmission, and spoke to' defendant, Andy Edwards. She responded that the gear jammed, and her PT Cruiser was unable to move. Edwards advised plaintiff that the car would have to be towed to his business and that he would look at her vehicle the next day, which was Saturday. When plaintiff called the next day she was informed that they were unable to fully inspect the ear, and to call again the following Monday. Plaintiff called on Monday and was told that they were looking at the transmission and that, at the least, it may need a new cable; plaintiff told Edwards to let her know. When plaintiff called to check on her vehicle the next day, Edwards informed her that they had finished the repairs and the total cost for the repairs was $1,962.22. Upon being informed of the cost, plaintiff testified that she stated to Edwards that she never authorized him to make any repairs, and that she would not be able to pay that amount. With plaintiff unable to pay, defendant retained possession of her vehicle.

On March 5, 2010, plaintiff filed her pro se petition in Monroe City Court seeking the return of her vehicle and general damages for “pain and suffering.” Edwards filed his pro se answer, and approximately one week prior to trial counsel for defendant enrolled.

|4Trial on this matter was held on April 22, 2010. After hearing testimony from both parties and the employee of defendant who repaired the transmission, the trial court held that the repairs made by defendant were unauthorized and rejected defendant’s claim for payment. The trial court then found that upon plaintiffs payment of the $85 towing fee defendant was to return her car, and, lastly, that defendant was to pay to plaintiff general damages in the amount of $1,500.

Discussion

An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Even though an appellate court may feel that its own evaluations are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed. Wooldridge Production Co., Ltd. v. Goldstream Corp., 36,373 (La.App.2d Cir.09/20/02), 827 So.2d 1211. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The primary issue before us is whether the trial court committed manifest error in determining that plaintiff did not authorize defendant to |smake any repairs to her car. That the repairs made were necessary and the charges appropriate is not challenged.

Plaintiff testified unequivocally during the trial that she never authorized defendant to make any repairs to her vehicle, much less a repair as expensive as rebuilding a transmission. According to plaintiff, the only potential repair discussed with defendant was the possibility that she may need a new shift cable. While acknowledging her eagerness to get her vehicle back and her multiple inquiries into how long it would take to repair the car, plaintiff testified that had she been informed of the costs she would not have authorized defendant to make the repairs, as she was going through bankruptcy proceedings and could not have paid that amount.

Edwards’s testimony, portions of which follow, was more equivocal:

Q: Did you tell her that you would have to uh ... it wouldn’t be a matter of just determining what was wrong with the transmission?
A: Right, I told her that we would have to pull [the transmission] out to see what was wrong with it. I mean, I had already checked it myself. I didn’t know exactly what was wrong with it without looking.
Q: Did she give you permission to do that?
A: She basically said to let her know. ...
IrA: I think I spoke to her [on Monday], We had the transmission out, but it wasn’t torn down at that time. So, I didn’t have the information to give her, you know, what all was wrong with it.
Q: Did you talk to her in person that day or on the phone?
A: On the phone.
Q: Okay. Did she know at that time that you were repairing the vehicle?
A: I thought she knew. You know, whenever somebody knows that you are pulling a transmission out to completely disassemble it, to find out what was wrong with it, you are going to have to rebuild it to put it back together. You have removed the cart.
Q: Was it your understanding through all these conversations from Friday night through Monday and for that matter any conversation you had with her up until the time that she disputed the price, is it your understanding that she wanted you to repair the vehicle?
A: I was thinking about Saturday. Í didn’t know anything about Friday night because I hadn’t looked at the car. You know, I was thinking she wanted it fixed, you know, from the conversations we had.

The trial court then followed up with a few questions.

Q: What is the procedure if the person doesn’t come in? What do you do in order to obtain consent before working on the car?
A: Well, I just get a verbal. Just basically let them know what I have to do to it. You know, at that point there, do they want me to go on from there....
Q: In your earlier testimony, you said that after you told her that you would have to look at the car you said that she told you, |7“Well, let me know.” Then in your response to your questioning or questioning by counsel, you said, “Well, I thought she knew.” And you said, “I was thinking that she wanted it to be fixed.” And then you said, “If she wanted it fixed.”
A: Well, when I told her that it had to be torn down to see what was wrong with it, you know, I assumed that she knew pulling it out of the car and tearing it down is what that basically mean when you are dealing with a transmission.
Q: So, you are saying that you assumed she knew that it would be a cost?
A: I would assume that, yes ma‘am.

The trial court found from the testimony of the parties that defendant never told plaintiff what was wrong with her vehicle and/or the costs involved with repairing it prior to completion of the repairs, even though plaintiff asked to be informed. It is reasonable that someone undertaking nearly $2,000 in repairs would get consent from the owner to make the repairs, and would relay the likely cost of those repairs, as opposed to simply concluding that the owner wanted their car fixed and assuming that she would know about the cost of repair. We cannot find the trial court’s factual determination that plaintiff did not give defendant consent to repair her vehicle to be manifestly erroneous or clearly wrong.

Defendant contends that the trial court erred in awarding plaintiff damages of $1,500 for pain and suffering associated with the loss of use of | Rher vehicle when it clearly found, and the plaintiff admitted, that she owed money to the defendant and the court did not even order the return of the vehicle until payment was made.

This assignment of error pertains to the $85 towing fee that plaintiff acknowledged owing and the trial court ordered plaintiff to pay defendant prior to the release of her vehicle. It is defendant’s position that as a result of the trial court’s finding, and plaintiffs acknowledging, that a towing fee was owed, it had a legal right to retain the vehicle, and, as such, it should not have to pay damages. We agree.

The trial court held that defendant could retain plaintiffs vehicle until he received payment of the $85 towing fee, while at the same time finding him liable for damages for retaining possession of that same vehicle. These ruling are in conflict. Regardless of whether plaintiff authorized defendant to make any repairs to her vehicle, it is undisputed that she consented to the towing of the vehicle and to the time and labor spent in tearing down the transmission, i.e., for defendant to look at the transmission to see what was the problem. Yet, at no time did plaintiff make an actual legal tender of the towing fee to defendant. See Babington v. Stephens Imports, Inc., 421 So.2d 275 (La.App. 4th Cir.1982). Accordingly, we find that the trial court was clearly wrong to award $1,500 in general damages to plaintiff for pain and |flsuffering. We also note that defendant presented no testimony concerning the cost, if any, for disassembling the transmission.

Conclusion

For the foregoing reasons, the judgment of the trial court ordering defendant to return plaintiffs vehicle upon payment of the $85 towing fee is affirmed. The judgment of the trial court awarding plaintiff $1,500 in general damages, however, is reversed. Costs of this appeal are to be split evenly by the parties.

AFFIRMED IN PART AND REVERSED IN PART.

      . This amount includes: Rebuilt transmission-$l,500; Towing — $85; Shift cable — $69; Labor on cable — $85; Fluid — $45; and Tax— $178.22.

      . From the outset we note the informality of pleadings in a small claims court. Defendant’s response letter clearly indicated his claim for payment, although not specifically labeled a reconventional demand.


author: GASKINS, J.'

text:
    Vanessa McMILLIAN, Plaintiff-Appellee v. Barbara ANDERSON, Defendant-Appellant.
    No. 45,929-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Dianne Hill, Monroe, LA, for Plaintiff-Appellant.
    Jones Law Group, by Rosalind D. Jones for Defendant-Appellee.
    Before GASKINS, PEATROSS and MOORE, JJ.
   GASKINS, J.'

|2The plaintiff/tenant appeals from a city court judgment which found that she owed her former landlord $1,052 in rent and utilities, subject to a $500 credit for her deposit, or a total of $552. We affirm in part and amend in part.

FACTS

The plaintiff, Vanessa McMillian (hereinafter “tenant”), and the defendant, Barbara Anderson (hereinafter “landlord”), entered into a lease agreement on January 14, 2009. By the terms of the agreement, the tenant rented a house owned by the landlord and located on Standifer Avenué in Monroe. The tenant agreed to pay a $500 security .deposit, and monthly rent of $500. The term of the lease was one year, and it began on January 15, 2009. In paragraph nine, the tenant stipulated that she had examined the premises and that they were in good order and repair and in a “safe, clean and tenantable condition.” According to paragraph 18, the tenant was responsible for securing and paying for all utility services on the premises. ^Additionally, paragraph 20 of the lease provided that major maintenance and repair not due to the tenant’s conduct were the responsibility of the landlord; otherwise, the tenant was obliged to keep and maintain the premises in good and sanitary condition and repair at her sole expense. The tenant moved into the three-bedroom, two-bathroom house on January 22, 2009.

Because the tenant was eligible for Section 8 assistance, the Monroe Housing Authority (MHA) inspected the house to see if it met Section 8 standards. On January 26, 2009, the house failed inspection. On February 2, 2009, the house was reinspected and passed. Once the house passed inspection, the MHA paid $380 of the $500 monthly rent while the tenant paid $120. However, it would not pay for the period when the tenant occupied the residence prior to the house passing inspection. The landlord prorated the rent and utilities for the seven-day period when the tenant lived in the house between inspections; however, the tenant only paid $10 toward the utilities.

On November 5, 2009, another inspection of the house was conducted. A letter was sent to the landlord on that date advising that the property no longer met the housing authority standards and that repairs should be made within 30 days for the house “to remain active under the terms and conditions of the Housing Assistance Payments contract.” Among the failed |4items were a closet needing a clothes rod, commodes needing caps over anchor bolts, electricity being off in two bedrooms and a bathroom, and the Vent-a-Hood not working.

At some point, the tenant received a notice of rent change from the MHA. The letter stated that following annual review of the family’s income, the tenant’s portion of the rent would be reduced to $87, effective February 1, 2010; the MHA’s portion would be $433, for a total of $520 in rent. The letter referred to a housing assistance payments contract between the owner of the house and the Public Housing Authority which was dated February 2, 2009, and entered into on behalf of the tenant. No copy of any such contract is found in the appellate record.

Toward the end of the lease term, the landlord offered to let the tenant sign a new lease; however, the monthly rent under the new agreement would be $550. The tenant did not sign the lease. She attempted to pay $87 to the landlord by money order on February 2, 2010. The landlord refused to accept the payment from the tenant and initiated eviction proceedings. The tenant moved out and returned the keys to the landlord on March 1, 2010. On that same day, the tenant filed the instant suit in city court against the landlord for failure to return her $500 deposit.

1 ,VThe landlord answered on March 12, 2010. She asserted that the tenant moved into the rental house on January 22, 2009, and that she still owed prorated rent ($112) and utilities ($94) for January 2009. Also, she alleged that in January 2010, instead of receiving the $500 monthly rent, she was only paid $125. Additionally, she contended that the rent of $550 owed for February 2010 was not paid, and that damage to the drywall in the house amounted to $100.

The matter was tried in city court on May 4, 2010. Neither party was represented by counsel. According to the tenant, she lived in the house until the end of February 2010; although she attempted to pay rent for that month, she testified that the landlord refused to accept it. She also stated that the house “constantly” failed inspection by the MHA and that Section 8 did not pay the rent when the house was not up to the city code. She testified that there was a variety of problems with the house, including the heating system. She asserted that the landlord did not bring her the new lease until February 2010.

The landlord testified that the house failed the initial inspection but passed a second inspection two weeks later. Section 8 would not pay for the seven-day period the tenant lived there before the successful inspection. The landlord informed the tenant that she would have to pay prorated rent and futilities for that period of time. The tenant paid her $10 toward the utilities. Section 8 began paying its portion of the rent in February 2009. In November 2009, the MHA again inspected the house. According to the landlord, there were minor problemsO— including electrical issues and a missing clothes rod — which she corrected. Section 8 paid for December 2009, but not January or February 2010 when the tenant was still living there. The tenant paid her portion or $120 for January 2010. The landlord informed the tenant that she was raising the rent to $550; the tenant refused to sign the new lease. The tenant attempted to continue paying her share of the rent, but the MHA did not pay its share. The tenant finally returned the keys to the landlord on March 1, 2010. The landlord also testified that some walls in the house were damaged during the tenant’s occupancy; it cost $100 to repair them.

At the conclusion of the evidence, the judge found that the lease expired on January 15, 2010, but the tenant remained until March 1, 2010. When the house failed inspection, Section 8 did not pay the rent; the court concluded that during those periods, the tenant was entitled to either break the lease and leave the premises or pay the rent herself. However, she was not entitled to live there rent-free. By the court’s calculations, the tenant owed $112 in rent for January 2009, $60 for prorated utilities in January 172009, $380 in rent for January 2010, and $500 for rent in February 2010, or a total of $1,052. This amount was subject to a credit of $500 for the tenant’s unreturned deposit. Finding that the evidence was insufficient, the court made no award to the landlord for the alleged damage to the house by the tenant. Judgment was signed May 10, 2010; it rejected the tenant’s demands but awarded the landlord damages of $1,052, subject to a $500 credit for the tenant’s deposit.

The tenant, now represented by counsel, appeals.

LAW

A lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668. The essential elements of a lease are the thing, the rent, and the consent of the parties. Shreveport Neon Signs, Inc. v. Williams, 44,079 (La.App.2d Cir.2/25/09), 5 So.3d 977. The existence or nonexistence of a lease is a question of fact. Shreveport Neon Signs, Inc. v. Williams, supra.

An appeals court may not set aside a trial court’s finding of fact in the absence of manifest error or unless clearly wrong. This standard requires the | ^appellate court to give great deference to credibility determinations made by the trier of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a trial court’s factual determinations, a court of appeal must find, based on the record, that no reasonable factual basis for the findings exists and that the findings are clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

DISCUSSION

The tenant argues that the lease agreement was amended by the terms imposed by the MHA upon the landlord. She refers to language in La. C.C. art. 2676 that rent may be fixed by the parties or by persons designated by the parties. The tenant also argues that the lease did not begin until February 1, 2009, because the house failed the initial inspection and was not “inhabitable” on the start date set in the lease, January 15, 2009. Thus, the tenant could not be liable for rent for the last week of January 2009. The tenant also maintains that she was only responsible for her portion of the rent | ¡,($120) and that the landlord’s recourse for the rest of the monthly rent ($380) is against the MHA.

The landlord, also now represented by counsel, claims that the city court was not manifestly wrong in its rulings. She argues that she and the tenant contracted outside the terms of the MHA. She points to the provisions of the lease signed by them in which the tenant attested that she had inspected the premises and that they were tenantable. The lease also provided that certain of the matters, found objectionable in the November 2009 inspection, were minor repairs that the tenant was obliged to correct; thus, it was the tenant’s negligence — not the landlord’s— which caused the house to fail that inspection. The landlord also notes that the tenant had the option to leave the premises if the premises were unsuitable but chose not to do so.

The tenant would apparently have this court rule that she was entitled to live in the landlord’s house rent-free during the times when the house failed inspection. Nothing in this record or in the law indicates that she had any such right.

In Louisiana, the lessor has the obligation to maintain the leased premises in a condition fit for its intended use, and to make necessary repairs. La. C.C. art. 2691. If the lessor fails to fulfill this obligation, the law | ^provides the lessee with two options. He can sue for dissolution of the lease agreement and resulting damages, or he can make indispensable repairs himself and deduct a reasonable cost thereof from the rent due. La. C.C. arts. 2693, 2694. New Hope Gardens, Ltd. v. Lattin, 530 So.2d 1207 (La.App. 2d Cir. 1988). A lessee is not justified in retaining possession of the leased premises rent-free without pursuing either of these codal remedies. New Hope Gardens, Ltd. v. Lattin, supra.

A lessee is bound to pay rent according to the terms of the lease, and may be expelled from the premises for failure to do so. La. C.C. arts. 2683(1) and 2704.

In support of her argument that she is not liable to the landlord for the entire monthly rent, the tenant relies upon the following language which is found on the back of the last page of the unit inspection report by the MHA:

Dear Landlord/Tenant:
This is to inform you that an inspection was made at_on_This unit DOES NOT meet Housing Quality Standards required to participate in the Section 8 Housing Assistance Payments Program. Note owner/tenant responsibility on inspection.
The housing payment will be on hold effective_with no funds lost until the abatement period. For any emergency items listed on the inspection (D-immediate action required), the abatement is effective_For all other items, the abatement is effective_ ■The payment will resume on the day the unit meets housing standards.
|n When all deficiencies are corrected, it is your responsibility to phone the inspector at [phone number] to schedule a follow-up inspection.
The family is only responsible for paying their portion of the rent which does not include any portion of abated rent by the' MHA. The family may request other housing if desired. [Emphasis theirs.]

We note that this portion of the document had not been filled out.

In the instant case, the most that we can say is that the landlord entered into some sort of contract with MHA on behalf of the tenant. However, no copy of that contract is found in this record. If some provision of this contract inured to the tenant’s benefit to allow her to avoid payment of the entire monthly rental price, it was incumbent upon her to produce it. The landlord testified that MHA refused to pay its portion of the rent when the house did not pass MHA’s inspection. In her testimony, she did not indicate that this was in contravention of their contract.

Based upon the evidence that was produced at trial and Louisiana lease law, we affirm in part and amend in part the city court judgment in the instant case. The tenant was not entitled to free use of the landlord’s house and utilities for the seven-day period in January 2009. Thus, we affirm the city court’s award of $112 in prorated rent for January 2009 and $60 for prorated utilities in January 2009.

The city court found that the tenant’s lease expired January 15, 2010. From January 1, 2010, until January 15, 2010, when the lease was still in |12effect but the rent was abated by the MHA, the tenant only owed her proportional share for one-half of a month, or $60. (Since she paid $120, she is entitled to a credit of $60, along with the $500 credit for her unre-turned deposit.) However, as to the second half of January 2010, after the lease terminated, the tenant owed for the entire prorated amount, or $250.

We agree that the tenant owed the entire amount of rent for February 2010, or $500. Accordingly, we also affirm that portion of the city court’s ruling.

CONCLUSION

We affirm in part and amend the judgment of the city court. In relevant part, we recast the judgment to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the defendant, BARBARA ANDERSON, plaintiff in reconvention and against plaintiff, VANESSA MCMILLI-AN, defendant in reconvention in the full sum of NINE HUNDRED EIGHTY-TWO AND 00/100 DOLLARS ($982.00), subject to a credit of FIVE HUNDRED SIXTY AND 00/100 DOLLARS ($560.00).

Costs in this court are assessed equally between the parties.

AFFIRMED IN PART, AMENDED IN PART.

      . There is confusion in the record as to the spelling of the tenant's last name, which is given interchangeably as "McMillon,” “McMillan,” and "McMillian.”

      . The items requiring remedy included such things as venting the hot water heater to the exterior, installing a towel bar and a strike plate, and repairing a door frame. It also included installation of a stove and refrigerator; however, according to the inspection report showing that the house passed rein-spection, ownership of the stove and refrigerator appeared to belong to the tenant.

      . Contrary to the tenant's assertion in brief, the record demonstrates that the utilities to the house were on but in the landlord's name. Subsequently, the tenant had them placed in her name.

      . We acknowledge that the MHA may have guidelines that regulate these matters or may have a contract with the landlord that would direct a different decision. However, neither the guidelines nor any MHA/landlord' contracts were tendered into evidence.