author:
VICTORY, J. KIMBALL, C.J., KNOLL, J.,
      WEIMER, J.,

text:
    STATE of Louisiana v. Todd Andrew JONES.
    No. 2010-K-0762.
    Supreme Court of Louisiana.
    Sept. 7, 2011.

      James D. Caldwell, Attorney General, James C. Downs, District Attorney, Michael W. Shannon, Assistant District Attorney, for Applicant.
    Edward Kelly Bauman, Lakes Charles, LA, for Respondent.
   VICTORY, J.

hThe adult male defendant in this case made a graphic sexual request of a teenage boy. The issue before us is whether defendant’s conduct is sufficient to constitute attempted indecent behavior with a juvenile. After reviewing the record and the applicable law, we find that, in the specific context of this crime, the request is an act committed “for the purpose of and tending directly toward the accomplishing of his object” such that the attempt statute, La. R.S. 14:27, is satisfied. Therefore, we reverse the judgment of the court of appeal and reinstate the jury verdict finding defendant guilty of attempted indecent behavior with a juvenile in violation of La. R.S. 14:81(A)(1).

FACTS AND PROCEDURAL HISTORY

On August 30, 2007, the defendant, Todd Andrew Jones, the Assistant Chief of Police for the Town of LeCompte, was charged with two counts of forcible rape in violation of La. R.S. 14:42.1, and one count of indecent behavior with a juvenile in violation of La. R.S. 14:81 A(l). Counts One and Two alleged that defendant committed forcible rape upon M.L., a 15-year-old black male, on December 19, 2005 and January 17, 2006, and Count Three alleged that defendant committed indecent | gbehavior with a 15-year-old black male, J.D., on February 20, 2007. All three counts were tried together on March 17, 2009.

At trial, M.L. testified that defendant picked him up in his vehicle, drove him a short distance out of Alexandria, and forcibly raped him, both orally and anally. In support of this claim relative to Counts 1 and 2, E.L., who was nineteen at the time of trial, testified that when he was fifteen, he was involved in a romantic relationship with defendant and engaged in sexual relations with him. E.L. also had defendant’s name tattooed on his shoulder.

Relative to Count 3, J.D. testified that late in the evening on February 20, 2007, he was visiting his girlfriend, L.S., at her home in Alexandria. Defendant and L.S.’s uncle, Jerry Whatley, were sitting together in a bedroom of the home. Whatley is a transvestite who goes by the name of “Jal-eesa.” When J.D. came into the room, Whatley/Jaleesa asked J.D. to close the door and sit down on the bed. What-ley/Jaleesa then asked J.D. to show his hair, which J.D. and defendant both understood to mean his pubic hair, and J.D. refused and left the room. Sometime later, J.D. came back into the bedroom and asked defendant for a ride to the store, to which defendant replied “you can’t get something for nothing.” According to J.D., when he asked what defendant meant by that comment, defendant told J.D. he should put his penis in defendant’s mouth. J.D. became offended, left the room, and told L.S.’s mother what defendant had said. She told him to call his own mother, which he did, the police were summoned and defendant was taken into custody.

Defendant gave a written statement, which was admitted into evidence, as follows:

I, Todd Jones went to visit Jaleesa at his residence and was sitting in his bedroom with the door open and the family was about throughout the home. [J.D.] was in and out of the room we were in and Jaleesa stopped him and told him to sit down or lay down on the bed. He told him to |sclose the door behind him and come back and sit on the bed, [J.D.] did and again Jaleesa asked to see some hair. [J.D.] asked what for, there was no response, joking conversation exchanged with [J.D.] speaking of his penis and I stated I just wanted to see. He [J.D.] asked what you gonna do wit it if I show U [sic], I stated maybe put it in my face somewhere, and we all laughed and he walked out of the room. [J.D.] came back in and out several times, and he was talking and joking.

At trial, defendant testified that he made the statement to J.D. in a joking manner, that he did not get sexually aroused by making the statement, and it was not his intent to get J.D. sexually aroused. He testified that he had engaged with J.D. in “trash talk” before, but that he knew it was improper for an adult to ask a fifteen year old for oral sex. He further testified that he was bisexual. Finally, he denied the allegations of rape relative to M.L. and the defense was able to point out inconsistencies in M.L.’s account of events leading to those charges.

The jury returned a verdict of not guilty on both counts of forcible rape. As to the count of indecent behavior with a juvenile, the jury returned a guilty verdict on the lesser included offense of attempted indecent behavior with a juvenile. The Third Circuit reversed, finding no evidence that defendant had committed any overt act towards J.D. which would constitute an attempt. State v. Jones, 09-937 (La.App. 3 Cir. 3/10/10), 32 So.3d 1084. We granted the State’s writ application to determine whether defendant’s statement to J.D. constituted an attempt to commit indecent behavior with a juvenile. State v. Jones, 10-762 (La.2/4/11), 56 So.3d 982.

DISCUSSION

When a defendant challenges a conviction for insufficiency of the evidence, we must determine whether “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Young, 00-1437 (La.11/28/01), 800 So.2d 847, 851.

At the time of the alleged offense, La. R.S. 14:81(A) defined “indecent behavior with a juvenile” as follows:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) 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. Lack of knowledge of the child’s age shall not be a defense; or
(2) The transmission of an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

The definition of criminal attempt is found in La. R.S. 14:27:

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 circumstances, he would have actually accomplished his purpose.

Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

| sIn interpreting these statutes to determine whether defendant’s actions constitute an attempt, “it is a well-recognized and long-established rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such way to reconcile, if possible, apparent inconsistencies of ambiguities so that each part is given effect.” State v. Fussell, 06-2595 (La.1/16/08), 974 So.2d 1223, 1231 (citing State ex rel. A.M., 98-2752 (La.7/2/99), 739 So.2d 188, 190). Further, we have interpreted statutes dealing with sex crimes against children in light of the legislature’s “protectionist” goal when drafting these statutes considering that “juveniles have been ‘historically recognized as a special class of persons in need of protection ...’” Fussell, supra at 1234 (citing State v. Granier, 99-3511 (La.7/6/00), 765 So.2d 998, 100). In enacting La. R.S. 14:81(A), the legislature intended the statute “to apply to behavior which falls short of intercourse [when] carried on with young children.” State v. Interiano, supra at 15 (citing 1942 La. Acts 43 § 81 (Official Comment)). We have held that “the legislative history shows a compelling state interest in protecting children from the physical and psychological harm that can result from sexual acts committed ‘upon the person’ of the child and the psychological impact that having such acts committed in their presence may cause.” Id. at 15-16.

Defendant was convicted of attempt to violate La. R.S. 14:81(A)(1). Thus, the specific question here is whether the defendant’s conduct of asking the victim to put his penis in defendant’s mouth constitutes an attempt to commit a lewd and lascivious act upon the victim or in the presence of the victim.

To constitute an attempt, the State must first prove specific intent. “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(1); State v. Ordodi, 06-0207 (La.11/29/06), 946 So.2d 654, 661. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Ordodi supra at 661; State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, 310, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006). The determination of whether specific intent exists is a fact question for the jury. Ordodi, supra at 661; State v. Legrand, 02-1462 (La.12/3/03), 864 So.2d 89, 96, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005).

While defendant testified that he made the request in jest and had no intent to arouse the victim or himself, clearly the jury rejected this testimony. In addition to defendant’s testimony, the jury also heard evidence that defendant was bisexual, that other teenage boys had alleged sexual misconduct by defendant, and that defendant made the statement while in the presence of a male transvestite who also made sexually suggestive and crudely inappropriate comments to the teenage victim. Considering this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could find the State proved beyond a reasonable doubt that defendant had the requisite specific intent to commit a lewd and lascivious act upon the teenage victim.

The State must also prove defendant committed or omitted “ ‘an act for the purpose of and tending directly toward the accomplishing of his object,’ sometimes referred to as an ‘overt act.’ ” Ordodi, supra at 661. In Ordodi, we explained that the attempt statute makes a distinction between actions which are “mere preparation” and are not sufficient to constitute attempt, and acts which are committed for the purpose of and tending directly toward the accomplishing of the criminal object. Id. at 662. However, we noted that the distinction is not clearly defined and that actions which |7are mere preparation and those which constitute an overt act “exist on a continuum.” Id. Where a defendant’s actions fall on the continuum is a fact question for the trier of fact and is determined by evaluating the “the totality of the facts and circumstances presented by each case.” Id. (Citing State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 444; State v. Williams, 490 So.2d 255, 261 (La. 1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987)). The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted, and it is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt. Smith, supra at 445. Further, a person may be found guilty of attempt as a responsive verdict even though the evidence shows he committed the actual crime charged. State v. Credeur, 328 So.2d 59, 61 (La.1976).

For the following reasons, we find that a rational trier of fact could have found beyond a reasonable doubt that defendant’s conduct constitutes attempt to commit indecent behavior with a juvenile. While a physical overt act is generally required to constitute an attempt for most crimes, that is not necessarily so in the context of La. R.S. 14:81(A). Significantly, the completed crime of indecent behavior with a juvenile is accomplished by the mere “transmission of an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text, or images to any person” reasonably believed to be under seventeen and at least two years younger than the offender. La. R.S. 14:81(A)(2). So, if defendant had texted his request to the juvenile in this case rather than stated his request right in front of him, he would have been guilty of the completed crime of indecent behavior with a juvenile. It would be an absurd construction of this statute to find that a defendant could be guilty of the completed crime if done over the internet or ^electronically, but would not even be guilty of attempt if he committed same exact act in the physical presence of the victim, where the juvenile is actually more vulnerable.

Second, as stated in Ordodi, the distinction between mere preparation and an overt act is not clear and it is up to the fact finder to determine where a defendant’s actions fall on the continuum by examining the totality of the facts and circumstances. In light of the atmosphere surrounding defendant’s request, and his specific intent to carry out this act had the victim acquiesced, it was not necessary for defendant to use force or commit any other acts in furtherance of the crime short of committing the actual crime itself. Wfiiether defendant successfully committed the underlying crime depended on the actions of the victim, i.e., if the victim had acquiesced defendant would have been guilty of indecent behavior with a juvenile. As we stated in Smith, an attempt was complete when “the nature of the act requested by defendant required compliance by [the victim], not action by the defendant.” 661 So.2d at 444. In making the factual determination of where defendant’s actions fell on the continuum between mere preparation and an overt act, the jury found that the defendant had committed actions sufficient to constitute an attempt. In reviewing the evidence and the totality of the facts and circumstances, we find that a rational jury could find beyond a reasonable doubt that defendant committed an act for the purpose of and tending directly toward the accomplishing of indecent behavior with a juvenile.

Third, attempt in the context of La. R.S. 14:81 must be viewed in light of the legislative intent of protecting children from sexual exploitation as a special class of persons needing extra protection. By making it a crime to electronically transmit a lewd or lascivious message to a person reasonably believed to be a juvenile with the intent of arousing or gratifying the sexual desires of the perpetrator or the juvenile, the legislature has expressed its intent to punish conduct that involves no more than |na communication. Punishing a request for oral sex with a juvenile in this case as an attempt to commit a lewd or lascivious act is consistent with the legislature’s “protectionist goal” with regard to juveniles. Further, reading La. R.S. 14:81(A)(1) in light of La. R.S. 14:81(A)(2) to reach this result is consistent with our mandate to interpret statutes “as a whole to effect the legislative intent” and to construe the statute “in such way as to reconcile ... apparent inconsistencies or ambiguities so that each part is given effect.” Fussell, supra at 1231.

Fourth, this interpretation would be consistent with our opinion in Smith, supra, where the defendant lay down on the bed and asked his child to “sit on his chest so he could suck [the boy’s] penis,” and this Court found this constituted attempt to commit indecent behavior with a juvenile. Here, the juvenile came into the bedroom where defendant was located, asked defendant for a ride to the store, and defendant told him he would do it if the juvenile put his penis in defendant’s mouth. There is no rational basis to find one of these requests to be attempted indecent behavior with a juvenile and the not the other. It is true that the request in Smith was made by the father of victim and the victim was younger than the victim in this case, which created an atmosphere whereby the child was subject to the authority of his father and not necessarily free to leave. However, here, the defendant was the Assistant Chief of Police of LeCompte, also an authoritative figure, and the request was made in the bedroom of a transvestite who was present and who also made lewd requests of the victim.

Finally, this case can be distinguished from State v. Baxley, 93-2159 (La.2/28/94), 633 So.2d 142, 155, where this Court held that a verbal request for oral sex did not constitute an attempt to commit a crime against nature in violation of La. R.S. 14:89(A)(2). At that time, La. R.S. 14:89(A)(2) made it a crime to solicit a person 1 mwith the intent to engage in any unnatural carnal copulation for money. In Baxley, the defendant approached an undercover police officer and offered to pay the officer $20.00 if he would allow the defendant to perform fellatio on him. The defendant argued that La. R.S. 14:89(A) was unconstitutional in its entirety and that he had standing to challenge its constitutionality because, even though no money changed hands, he could be found guilty of attempted crime against nature in violation of La. R.S. 14:89(A)(1) if the court found he merely discussed uncompensated oral sex with the undercover officer. La. R.S. 14:89(A)(1). At that time, La. R.S. 14:89(A)(1) made unnatural carnal copulation a crime against nature. This Court disagreed, finding that “mere discussion or solicitation without a financial aspect cannot constitute an attempt to engage in conduct prohibited by La. R.S. 14:89(A)(1).” 633 So.2d at 145. Baxley is distinguishable because it is based on attempt under La. R.S. 14:89, not 14:81. La. R.S. 14:81 is directed at the victimization of juveniles, whereas La. R.S. 14:89 deals with adults. Further, as stated earlier, this Court has defined “lewd and lascivious conduct” very broadly as any conduct which is “lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to the sexual impurity or incontinence carried on in a wanton manner.” See page 4, note 1, supra. Finally, La. R.S. 14:81 can be violated by a mere communication, whereas La. R.S. 14:89 cannot.

CONCLUSION

Reviewing the evidence in the light most favorable to the prosecution, we find that a rational jury could find beyond a reasonable doubt that defendant had the specific intent to commit a lewd and lascivious act upon the juvenile victim and committed an act for the purpose of and tending directly toward the accomplishing of this act. Where the defendant’s act fell upon the continuum between mere | preparation and an overt act was a question of fact for the trier of fact to be determined by evaluating the totality of the facts and circumstances of this particular case. Defendant was the Assistant Chief of Police, and made this sexual request to the teenage victim in the bedroom of and in the presence of a known transvestite who also made lurid sexual comments to the victim. If the victim had acquiesced in this intimidating environment, the crime would have completed. While most other crimes require an overt physical act in order for an attempt to occur, the completed crime of indecent behavior with a juvenile can be accomplished by the mere communication of lewd or lascivious conduct, text or images. In fact, this defendant would have been guilty of the completed crime had he made this request electronically. Further, to find this request for oral sex constitutes an attempt to commit indecent behavior with a juvenile is consistent with the legislative intent to protect children from sexual predators.

DECREE

For the reasons stated herein, we reverse the judgment of the court of appeal and reinstate the jury verdict.

REVERSED; JURY VERDICT REINSTATED.

KIMBALL, Chief Justice, dissents with reasons assigned by Justice KNOLL.

KNOLL, Justice, dissents with reasons.

WEIMER, Justice, dissents for the reasons assigned by KNOLL, Justice.

KIMBALL, C.J.,

dissenting.

hi dissent from the majority opinion for the reasons assigned by Justice Knoll.

KNOLL, J.,

dissenting.

hi cannot join the majority opinion finding that an oral comment, unaccompanied by any overt act, is legally sufficient to support a conviction of criminal attempt under La.Rev.Stat. § 14:27. Defendant’s sexually charged comments were unquestionably crude, offensive, and wholly inappropriate. However, that alone does not make them worthy of criminal punishment. Louisiana’s long-standing statutory and jurisprudential authority holds that a conviction for attempt must include an affirmative act towards the furtherance of the crime. Words alone, no matter how crude, are insufficient. There is no record evidence that defendant committed any overt physical act — he did not take his clothing off, move towards the juvenile, or try to touch him. After the inappropriate words were spoken, the juvenile felt free to refuse the request and immediately left the room. Defendant let him go without threatening or intimidating him. As there is no evidence of any overt act towards the accomplishment of a crime, I respectfully dissent.

DISCUSSION

| gA conviction for attempt under La. Rev. Stat. § 14:27 requires the State to prove two elements beyond a reasonable doubt: a “specific intent to commit the particular offense” and an “overt act done for the purpose of and tending directly toward the accomplishment of the offense.” State v. Love, 26 So.2d 156, 157, 210 La. 11 (1946). The crux of the question before us is whether defendant’s lewd statement, without any accompanying physical action, constitutes an “overt act” furthering the crime of indecent behavior with a juvenile.

The “overt act” requirement distinguishes attempt from the related crime solicitation, which may be committed by words alone without any accompanying action. This distinction between solicitation and attempt is discussed in the reporter’s comments to La.Rev.Stat. § 14:28:

Solicitation and attempt — separate offenses:
Very few states have enacted general statutes making it an offense to incite crime, but a number recognize it as a common law offense. In states where solicitation is not a separate offense, either by statute or by the adoption of common law crimes, there is some tendency to permit the person who solicits another to commit a crime to be convicted of an attempt. However, it is generally held that a solicitation does not constitute an attempt. Thus, it was felt that a special section should be proposed, punishing one who solicits or incites a felony.
Inciting a felony is a less serious offense than attempt, since it involves the contingency of the person solicited being unwilling to commit the crime. There is not the same dangerous proximity to success that is found in the attempt. Thus it is not surprising, that courts have usually refused to stretch the attempt concept to include this more remote, though equally anti-social, activity.

(Emphasis added, citations omitted).

The debate as to whether mere verbal solicitation qualifies as an attempt dates back to the late nineteenth century. 2 Wayne LaFave, Substantive Criminal Law § 11.1(f), p. 203 (2d ed.2003), citing 1 J. Bishop, Criminal Law § 768(c) (8th ed. 1892)(solicitation is attempt) and 1 F. Wharton, Criminal Laxo § 218 (12th ed. |a 1932)(solicitation is not attempt). The most recent edition of Wharton’s treatise notes that, while there is “some authority to the contrary, most courts take the view that the mere act of solicitation does not constitute an attempt to commit the crime solicited.” 4 Wharton’s Criminal Law, § 671, p. 525 (15th ed.1996, Charles E. Torcia, ed.) Louisiana courts have consistently followed this majority rule in keeping solicitation and attempt as wholly separate crimes.

This Court directly addressed the issue in State v. Baxley, 93-2159 (La.2/28/94), 633 So.2d 142. The defendant, Johnny Baxley, approached an undercover police officer and offered twenty dollars for oral sex. He was arrested and charged with committing a “crime against nature” under La.Rev.Stat. § 14:89. The then-current version of § 14:89, which has since been amended, included two subsections: § 14:89(A)(1), which forbid the “unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal,” and § 14:89(A)(2), which forbid the “solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.” (emphasis added). Baxley challenged the statute on constitutional grounds. Id. at 143.

Both parties agreed that Baxley could be charged under § 14:89(A)(2), as he had solicited the officer by offering money for oral sex. He thus had standing to challenge that portion of the statute. The State disputed Baxley’s standing to challenge § 14:89(A)(1), as he had not actually engaged in any act of unnatural carnal copulation. Baxley argued he did have standing because he could have been found guilty of attempted unnatural carnal copulation as a responsive verdict; by approaching the officer and offering $20 for oral sex, a reasonable jury could have 1 ¿returned a guilty verdict for attempt. Id. at 145. This Court disagreed and held Baxley’s actions were legally insufficient to support a conviction for attempt:

Mere discussion or solicitation without a financial aspect cannot constitute an attempt to engage in conduct prohibited by LSA-R.S. U:89(A)(1). Under LSA-R.S. 14:27, a person is guilty of an attempted crime if the person, “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.” Thus, an act furthering a crime against nature is required before a court can find a defendant guilty of attempted crime against nature under LSA-R.S. 14:89(A)(1). Solicitation alone does not constitute an attempt to commit a crime. See LSA-R.S. 14:28 Comments.

Id. (emphasis added).

As the Court made clear in the preceding passage, a defendant has only committed an attempted crime if he has committed some “act” furthering the crime; mere words do not suffice. Id. at 145-46. Since Baxley’s only alleged wrongful act was verbal, there was no “overt act” under La.Rev.Stat. § 14:27 and he could not be found guilty of attempt.

The majority attempts to distinguish Baxley based on the initial charge arising out of La.Rev.Stat. § 14:89, not La.Rev. Stat. § 14:81 as in the present case. But this is a meaningless distinction, as the relevant statute in this analysis is La.Rev. Stat. § 14:27. Baxley holds that mere words do not suffice to give rise to a conviction for attempt, and explicitly stated “[sjolicitation alone does not constitute an attempt to commit a crime.” Id. at 145. Nothing in Baxley suggests its holding is limited to charges arising out of La.Rev. Stat. § 14:89; to the contrary, it applies generally to all cases involving criminal attempt.

We considered a similar issue in State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Late one night, after his two young sons had gone to bed, Smith | ¿entered the children’s shared bedroom. Id. at 443. The children were lying together in a single bed because they were afraid of their father, who came in, lay down on the other bed, and ordered his ten-year-old child to come to him. Id. at 443. The child walked over to the defendant’s bed, and Smith told him to “sit on his chest so he could suck [the child’s] penis.” The child began to cry and returned to his brother’s bed. Id. The defendant was convicted of attempted aggravated crime against nature and subsequently challenged his conviction on the grounds of insufficient evidence.

This Court affirmed the conviction. We distinguished Baxley because whereas “Baxley’s only act was to offer an undercover police officer who was sitting on a French Quarter stoop $20 for oral sex,” there was ample evidence showing Smith committed the requisite “overt acts” in furtherance of the crime.

Unlike the defendant in Baxley who merely solicited oral sex, Smith did several acts in his attempt to engage in oral sex with his son. He entered his sons’ room. He lay on Chad’s bed, and he asked Chad to engage in oral sex with him. The nature of the act requested by defendant required compliance by his son, not action by defendant. Furthermore, in Baxley, the illegal solicitation took place on a public street between two adult strangers. An adult on a public street can reject unwanted sexual suggestions from strangers by ignoring the remarks and walking away. In the present case, the encounter occurred between father and son in the child’s bedroom where the child was subject to the authority of his father and not free to leave.

Id. at 444-45.

Although the majority claims that there is no “rational basis” for distinguishing this case from Smith, the reported facts of that case reflect a significantly more coercive environment and a defendant who, unlike the instant defendant, went beyond mere words and actually committed physical overt acts in furtherance of indecent behavior with his own child. In Smith, we identified several factors which, taken in concert, constituted an overt act beyond mere | ^solicitation. Smith entered his minor children’s bedroom late at night, unbidden and unwelcome, and climbed into his child’s bed in the dark. Smith was the only adult in the house, so there was no one who the child could call for help. He told, rather than asked, the victim to sit on his chest. Id. at 443. Given the natural authority and power which any parent has over his children, this was not a mere request but an order.

In my mind, this language is more than a solicitation or an asking, but rather constitutes an order or a telling by a person in a greatly superior position, i.e., adult vis-a-vis child; father vis-a-vis son; and is clearly distinguishable from the Baxley analysis.

State v. Smith, 94-388 (La.App. 3 Cir. 11/9/94) 645 So.2d 817, 821 (Saunders, J., dissenting).

Similarly, in State v. Peloquin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d 393, writ denied, 04-3170 (La.4/8/05), 898 So.2d 1280, the court of appeal followed this rule by requiring evidence of some overt act in furtherance of the crime. The defendant asked a fourteen-year-old girl if she wanted to see his penis. The girl said no and walked away. Id. at 396. Asking this question, while obviously inappropriate, was not attempted indecent behavior or attempted obscenity: “There was no testimony that Defendant did an act in furtherance of revealing his penis to K.P. The question was preparatory and not an overt act similar to that in Baxley.” Id. at 396.

With this background in mind, it-is clear that defendant Jones did not commit an “overt act” under Louisiana law. Jones’s request for J.D. to put his penis in his face was, as stated in Baxley, “[mjere discussion or solicitation without a financial aspect [which] cannot constitute an attempt.” Baxley, 633 So.2d at 145.

Notably, Jones did not try to touch J.D. or make any movements towards him. He did not remove his own clothes or try to remove J.D.’s clothes. When J.D. left the room, Jones made no effort to stop him. Nothing in the record suggests that 17J.P. felt physically threatened or was under any duress; J.D. testified he responded to Jones’s comment by becoming offended, not scared.

Unlike Smith, Jones did not enter J.D.’s bedroom in the dark and order him to perform a sexual act. Instead, J.D. entered the room where Jones and Whatley were sitting, and J.D. was free to (and eventually did) leave the room. J.D. and Jones were not alone in the room, the lights were on, and other people in the house were awake. In Smith, the defendant’s position as the victim’s father, the young age of the child, and the other circumstances of the crime made the defendant’s statement more in the nature of an order than a request. In Smith, we placed great importance on the finding that the “child was subject to the authority of his father and not free to leave.” Smith, 661 So.2d at 445. Jones was not in a position of power over J.D., and J.D. felt free to ignore Jones and leave the room. The most important distinction, however, is that the Smith defendant committed several overt, physical acts in furtherance of his attempted crime, while Jones did not.

In finding that a verbal request, without any accompanying physical action, qualifies as an “overt act,” the majority effectively renders the “overt act” requirement meaningless. This holding goes against the weight of Louisiana jurisprudence and scholarly commentary and blurs the current bright line distinction between solicitation and attempt.

The majority justifies this result by reasoning that, because La.Rev.Stat. § 14:81 was enacted with a “protectionist goal” regarding juveniles, it should be construed broadly to give effect to the “legislative intent to protect children from sexual predators.” A liberal interpretation of criminal statutes is forbidden by the rule of lenity, which requires this court to resolve any ambiguity in a criminal |8statute in favor of the accused. State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271, 1274. This is no mere canon of statutory interpretation; but a Constitutional right arising from “fundamental principles of due process,” which mandate that “courts must decline to impose punishment for actions that are not ‘plainly and unmistakably’ proscribed” by the relevant statute. Dunn v. U.S., 442 U.S. 100, 112-13, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), quoting U.S. v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). This rule requires us to construe a criminal statute strictly in favor of the defendant, and legislative intent cannot overrule the principles of due process recognized by the U.S. Supreme Court.

For this same reason, I cannot approve of the majority’s reasoning that, because the prior version of La.Rev.Stat. § 14:81 criminalized lewd electronic communications towards juveniles, it also applies to lewd verbal communications. This construction is unsupported by the plain text of the statute, which explicitly refers only to “an electronic textual communication or an electronic visual communication.” “The starting point in the interpretation of any statute is the language of the statute itself.” Red Stick Studio Dev. v. State, 2010-0193 (La. 1/19/11), 56 So.3d 181, 188. We must assume every word of the statute serves a purpose: “it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless.” ABL Management, Inc. v. Board of Sup’rs of Southern Univ., 2000-0798, (La.11/28/00), 773 So.2d 131, 135. If the statute is applied to all communications, the word “electronic” is effectively rendered meaningless.

Moreover, if the legislature had wished to make non-electronic communication illegal, it could have done so. Indeed, the Legislature has since broadened the scope of La.Rev.Stat. § 14:81(A)(2) to include not only electronic | acommunications but also the “transmission, delivery, or utterance of any textual, visual, written, or oral communication depicting lewd and lascivious conduct, text, words, or images.” See Acts 2009, No. 198. This is strong evidence that at the time of the alleged offense, such communications were not covered by the statute. When the legislature amends a statute, it is presumed to have intended to change the preexisting law. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 889. Applying the post-amendment language to punish the defendant’s pre-amendment conduct would violate the ex post facto provisions of the U.S. and Louisiana Constitutions.

This Court is also expressly forbidden from creating crimes by analogy: “the articles of this Code cannot be extended by analogy so as to create crimes not provided for herein.” La.Rev.Stat. § 14:3. The import of this section is simple: “[t]he scope of a penal statute may not be enlarged by implication, or changes in social legislation, so as to include acts or persons not provided for therein.” State v. Gonzales, 129 So.2d 796, 799 (La.1961). Accord, State v. Truby, 29 So.2d 758, 765, 211 La. 178 (1947)(“the determination or definition of acts which are punishable as crimes is a purely legislative function which cannot be delegated to, or exercised by, the courts.”) I believe the majority’s decision to expand the reach of the statute beyond the relatively narrow category of electronic communications sets a potentially harmful precedent.

Finally, as a practical matter, the rationale behind this holding may affect many other statutes besides La.Rev.Stat. § 14:81(A)(2). Numerous Louisiana criminal statutes are specifically geared to electronic or computerized forms of communication. If the reasoning of the majority opinion is correct, each of these | instatutes would also apply in a non-electronic context, thus vastly expanding their scope.

The facts of this case do not support a conviction of attempted indecent behavior with a juvenile. For the foregoing reasons, I would affirm the judgment of the court of appeal.

WEIMER, J.,

dissenting.

Iil dissent for the reasons assigned by Justice Knoll.

      . This Court has previously defined "lewd and lascivious” in the context of La. R.S. 14:81(A) as an act which is "lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.” State v. Interiano, 03-1760 (La.2/13/04), 868 So.2d 9, 15; State v. Holstead, 354 So.2d 493, 498 (La. 1977). Oral sex with a juvenile victim would meet this definition.

      . Since the trial, the Legislature has broadened the scope of subsection (A)(2) to include not only electronic communications but also “any textual, visual, written, or oral communication depicting lewd and lascivious conduct, text, words, or images.”

      . Baxley is an unusual case, as the customary positions of the defendant and the prosecution were reversed. The defendant argued his alleged actions did constitute a crime, while the State argued they did not.

      . Although the majority claims that the defendant's position as Assistant Police Chief of LeCompte makes him an "authoritative figure” per se, Jones was not in uniform on the night in question, and he made no pretense of speaking in his official capacity as a police officer. There was no evidence showing J.D. felt particularly intimidated or submissive toward either Jones or Whatley.

      . U.S. Const, art. 1, sec. 10; La Const., Art. 1, § 23.

      . See, e.g., La.Rev.Stat. § 14:40.3 (cyberstalk-ing); La.Rev.Stat. § 14:40.7 (cyberbullying); La.Rev.Stat. § 14:73.4 (wrongful denial of access to computer users); La.Rev.Stat. § 14:73.5 (computer fraud); La.Rev.Stat. § 14:73.6 (unlawful use of email service provider, i.e., anti-Spam act); La.Rev.Stat. § 14:73.7 (computer tampering); La.Rev.Stat. § 14:73.8 (unauthorized use of wireless system regarding pornography against juveniles); La.Rev.Stat. § 14:73.9 (criminal use of Internet map); La.Rev.Stat. § 14:81.1.1 (“sex-ting”); La.Rev.Stat. § 14:81.3 (computer-aided solicitation of a minor); La.Rev.Stat. § 14:90.3 (gambling by computer); La.Rev. Stat. § 14:323 (unauthorized use of electronic tracking device).


source: Caselaw Access Project

author: PER CURIAM. WEIMER, J.,

license: Public Domain

text:
    TRANS PACIFIC INTERACTIVE, INC. v. U.S. TELEMETRY CORPORATION; U.S. Telemetry Network, Inc.; U.S. Telemetry-Bakersfield, LLC; Datex Spectrum, LLC; Thomas L. Siebert, K. Steven Roberts, Robert S. Miller, Don M. Clarke, James K. Gable, Charles M. Bruce, John J. Broussard, Henry (Hank) Mills, Clay M. Allen, and Stephen D. Gavin.
    No. 2011-C-0205.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   PER CURIAM.

liWe granted defendants’ application for a writ of certiorari in this case on April 8, 2011. After hearing oral arguments and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of April 8, 2011 as improvidently granted, and we deny defendants’ writ application.

GUIDRY, Justice, dissents.

WEIMER, Justice, dissents with reasons.

WEIMER, J.,

dissents.

|2I respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits.


text:
    In re Ramsey T. MARCELLO.
    No. 2011-OB-1539.
    Supreme Court of Louisiana.
    Nov. 16, 2011.
   ORDER

| iConsidering the record of this matter, the findings and recommendation of the hearing committee, and the response thereto filed by respondent,

IT IS ORDERED that respondent’s conditional admission to the practice of law in the State of Louisiana be revoked, effective immediately. Respondent may not submit an application for readmission until he can demonstrate compliance with the recommendations made by Bradford Health Services in its August 15, 2011 report, and in no event less than thirty months from the date of this order. In the event respondent chooses to submit an application for readmission, it shall be filed with the Disciplinary Board, which shall appoint a hearing committee to take evidence and report to this court whether respondent should be readmitted to the bar and allowed to practice law in Louisiana. The Office of Disciplinary Counsel shall participate in the hearing and provide such information, evidence, and recommendations to the hearing committee as may be appropriate.

GUIDRY, J., dissents and assigns reasons.

FOR THE COURT:

/s/ Jeannette Theriot Knoll /s/ Justice, Supreme Court of Louisiana

GUIDRY, J.,

dissents.

| J would permanently revoke the conditional admission and prohibit respondent from seeking readmission for five years.


text:
    Eleni ANTONOPOULOS v. Scott PERRILLOUX, in his Official Capacity as District Attorney for the 21st Judicial District.
    No. 2011-C-1439.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Scott Perrilloux, District Attorney for the 21st Judicial District; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 2009-4263; to the Court of Appeal, First Circuit, No. 2010 CA 2294.

Denied.


text:
    MANH AN BUI v. FARMER’S INSURANCE EXCHANGE.
    No. 2011-C-1505.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Farmer’s Insurance Exchange;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 581984; to the Court of Appeal, First Circuit, No. 2010 CA 1571.

Denied.

KNOLL and CLARK, JJ., would grant.


text:
    James P. WELLS, Jr. v. Donald J. ZADECK, Zadeck Energy Group, Inc., Oleum Operating Company, L.C., T.M. Hopkins Operating, Inc. and T.M. Hopkins, Inc.
    No. 2011-C-1232.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Wells Jr., James; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 71,062; to the Court of Appeal, Second Circuit, Nos. 46,-138-CA, 46,138-CA.

Granted.

VICTORY, J., recused.


text:
    FIRST NATIONAL BANK, USA v. DDS CONSTRUCTION, LLC.
    No. 2011-C-1418.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re First National Bank USA; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 55623; to the Court of Appeal, Fifth Circuit, No. 10-CA-204.

Granted.


text:
    Robert DAVENPORT v. FOSTER FARMS, L.L.C., and Ohio Casualty Insurance Company.
    No. 2011-C-1781.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Foster Farms, L.L.C. et al.; Ohio Casualty Insurance Company; — Defendants); Applying For, Parish of Ouachita, Office of Workers’ Compensation District 1 E, No. 09-07211; to the Court of Appeal, Second Circuit, No. 46,430-WCA.

Denied.


text:
    DIXIE ROOFING & SHEET METAL COMPANY, INC. v. Anita Holmes Reeves SIMON.
    No. 2011-C-1785.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Simon, Anita Holmes Reeves;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 232,908; to the Court of Appeal, Third Circuit, No. 11-6.

Denied.


text:
    Deborah LEBLANC and Teri Shirey v. Ray PYNES, Sr. and Linda Mills.
    No. 2011-C-1792.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Mills, Linda; Pynes Sr., Ray et al; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. D, No. 119984; to the Court of Appeal, Second Circuit, No. 46,393-CA.

Denied.


text:
    Carrie Burse MERRILL v. GREYHOUND LINES, INC.
    No. 2011-C-1712.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Greyhound Lines Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District No. 07-5344; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0834.

Denied.


text:
    Kent W. HALL, Sr. v. Tina Williams HALL.
    No. 2011-C-1752.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Hall Sr., Kent W.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 62,994; to the Court of Appeal, Fifth Circuit, No. 11-CA-60.

Denied.


text:
    Ashley Albert KELLER v. Kevin Andrew KELLER.
    No. 2011-C-1761.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Keller, Ashley Albert; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2007-12932; to the Court of Appeal, First Circuit, No. 2010 CA 2101.

Denied.


text:
    SOUTHERN INSURANCE COMPANY v. The METAL DEPOT and United Fire and Casualty Company.
    No. 2011-C-1763.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Southern Insurance Company;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 2009-0003555; to the Court of Appeal, First Circuit, No. 2010 CA 1899.

Denied.


text:
    Judy LYONS v. Ann KNIGHT, Mark Knight, Kelly Knight, and Knight Oil Tools, Inc.
    No. 2011-C-1229.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Knight Oil Tools Inc.; Knight, Ann et al.; Knight, Mark; Sobiesk, Kelly Knight; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 2010-0734; to the Court of Appeal, Third Circuit, No. 10-1470.

Denied.

KIMBALL, C.J., would grant.

KNOLL, J., recused.


text:
    TEXANS CREDIT UNION v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Louisiana State Cypress, LLC, Louisiana State Market Commission and Louisiana Agricultural Finance Authority.
    No. 2011-C-1482.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Louisiana Agricultural Finance Authority; Louisiana Department of Agriculture and Forestry, et al.; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 583476; to the Court of Appeal, First Circuit, No. 2010 CA 1476.

Denied.

JOHNSON, VICTORY and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. Derunn HENDERSON.
    No. 2011-K-0674.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Henderson, Derunn; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. C, No. 80128; to the Court of Appeal, Second Circuit, No. 46,-057-KA.

Denied.


text:
    STATE of Louisiana v. Wayne ODOMS.
    No. 2011-K-0740.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Odoms, Wayne; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 497-525; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1278.

Denied.


text:
    STATE of Louisiana v. Joseph Anthony ROMERO.
    No. 2011-KO-0741.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Romero, Joseph Anthony; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, No. 07-623; to the Court of Appeal, Third Circuit, No. 09-1507.

Denied.


text:
    STATE of Louisiana v. James Lyndal FOSTER.
    No. 2011-KO-0765.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Foster, James Lyndal; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 297,291; to the Court of Appeal, Third Circuit, No. 10-615.

Denied.


text:
    STATE of Louisiana v. Edward P. WILLIAMS.
    No. 2011-KO-0799.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Williams, Edward P.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 483-903; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1023.

Denied.


text:
    STATE of Louisiana v. Kenneth Demario McCLAIN.
    No. 2011-KO-0832.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re McClain, Kenneth Demario;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 07-CR3-97401; to the Court of Appeal, First Circuit, No. 2010-KA-1380.

Denied.


text:
    STATE of Louisiana v. Katherine CONNER.
    No. 2011-K-0836.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Conner, Katherine; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 21756; to the Court of Appeal, First Circuit, No. 2010 KA 1258.

Denied.


text:
    STATE of Louisiana v. Arthur “Butch” GAINES, IV.
    No. 2011-KO-0851.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Gaines IV, Arthur “Butch”; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 23,471; to the Court of Appeal, First Circuit, No. 2010 KA 1762.

Denied.


text:
    STATE of Louisiana v. Freddie WASHINGTON, Jr.
    No. 2011-KO-852.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Washington Jr., Freddie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 03-07-1093; to the Court of Appeal, First Circuit, No. 2010 KA 1682.

Denied.


text:
    STATE of Louisiana v. Aaron W. ARDOIN.
    No. 2011-K-0653.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Ardoin, Aaron W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 75984F; to the Court of Appeal, Third Circuit, No. KA 10-1018.

Denied.


text:
    Toni Swain ORRILL, et al. v. LOUISIANA CITIZENS FAIR PLAN, et al.
    No. 2011-CC-1711.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Orrill, Toni et al.; — Plaintiff; Applying for Reconsideration of this Court’s action dated August 11, 2011; Parish of Orleans, Civil District Court Div. L, No. 05-11720; to the Court of Appeal, Fifth Circuit, No. 2011-C-0939.

Not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    STATE ex rel. Jason AUSTIN v. STATE of Louisiana.
    No. 2009-KH-1762.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Austin, Jason — Plaintiff; Applying for Motion to Enforce this Court’s action dated July 29, 2011, Parish of Orleans, Criminal District Court Div. J, No. 393-153; to the Court of Appeal, Fourth Circuit, No. 2009-K-0809.

Denied. Moot. The district court has acted.


author: MICHAEL E. KIRBY, Judge.

text:
    Patrick JOUVE and Elizabeth Jouve v. STATE FARM FIRE AND CASUALTY COMPANY, Carl W. Mixon and Michail Whittle.
    No. 2010-CA-1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 17, 2011.
    Rehearing Denied Sept. 13, 2011.

      Joseph S. Piacun, Reid S. Uzee, Gennu-sa Piacun & Ruli, Metairie, LA, for Plaintiffs/Appellants.
    Wm. Ryan Acomb, Michele L. Trow-bridge, Porteous Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellee, State Farm Fire and Casualty Company.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

| t This matter involves a disputed claim under a homeowners insurance policy for property damage that occurred during Hurricane Katrina. Plaintiffs, Patrick and Elizabeth Jouve (“plaintiffs”), appeal the parts of the April 7, 2010 trial court judgment in favor of defendant, State Farm Fire and Casualty Company (“State Farm”), which granted a motion in limine to exclude the testimony and report of plaintiffs’ expert, A. Vincent Caracei; summarily dismissed plaintiffs’ bad faith claims against State Farm; and limited plaintiffs’ recovery to the actual cash value at the time of the loss of the wind damaged part of their property. Plaintiffs also appeal from the June 80, 2010 trial court judgment that denied their motion for new trial. For the reasons that follow, we affirm.

In August 2005, plaintiffs owned a house located at 3822 Octavia Street in New Orleans, which was insured under two separate insurance policies: (1) a flood insurance policy issued under the National Flood Insurance Program (“NFIP”); and, (2) a homeowners policy issued by State Farm, which provided coverage in the amount of $151,400.00 for dwelling; $15,140.00 for dwelling 12extension; $113,550.00 for contents; and actual loss sustained for loss of use. On August 29, 2005, Hurricane Katrina hit Louisiana, causing levee breaches that resulted in flooding throughout the New Orleans area. As a result, plaintiffs’ Octavia Street home sustained catastrophic damages.

Plaintiffs filed a flood claim with the NFIP, and were paid $145,000.00 for building loss under the flood policy. They also filed a property damage claim with State Farm under their homeowners policy. After adjusting the claim, State Farm paid plaintiffs $41,346.89 for windrelated damages under the homeowners policy.

On August 26, 2006, plaintiffs filed a petition in the district court alleging that State Farm arbitrarily and capriciously failed to properly adjust their claim and pay the full amount due under their homeowners policy. They allege that State Farm acted in bad faith and failed to timely satisfy the claim after receiving satisfactory proof of loss, entitling them to statutory penalties and attorney fees and costs pursuant to La. R.S. 22:658 and La. R.S. 22:1220. State Farm answered the petition, and discovery commenced.

|3On December 7, 2009, State Farm filed several pre-trial motions, including the three at issue in this appeal: (i) Motion in Limine to Exclude Plaintiffs’ Expert Witness A. Vincent Caracci; (ii) Motion for Partial Summary Judgment as to Plaintiffs’ Bad Faith Claims; and, (iii) Motion for Partial Summary Judgment as to Plaintiffs’ Dwelling Claims.

Following a hearing, the trial court rendered a judgment on April 7, 2010, on the motions at issue as follows: (i) granted Stated Farm’s Motion in Limine to Exclude the testimony and estimate of A. Vincent Caracci; (ii) granted State Farm’s Motion for Partial Summary Judgment dismissing with prejudice plaintiffs’ bad faith claims; and, (iii) granted, in part, State Farm’s Motion for Partial Summary Judgment as to Plaintiffs’ Dwelling Claims, limiting plaintiffs’ claim to actual cash value minus depreciation, and dismissing with prejudice the dwelling claim for replacement cost with full value. The April 7, 2010 judgment specifically designated the partial summary judgments as final judgments and expressly determined there was no just reason for delay pursuant to La. C.C.P. art. 1915(B)(1).

On April 16, 2010, plaintiffs filed motion for new trial based on newly discovered evidence, citing La. C.C.P. art. 1972(2). Following a hearing, the trial court rendered a judgment on June 30, 2010, denying the motion. Plaintiffs timely appealed.

| .(Plaintiffs raised five assignments of error in this appeal.

1. The trial court erred in considering the availability of a legal malpractice remedy as an alternative to a new trial, necessitating a de novo review of the trial court’s decision.
2. The trial court abused its discretion by not granting plaintiffs a new trial and allowing Mr. Caracci to testify as an expert witness at trial.
3. The trial court abused its discretion by not granting plaintiffs a new trial and allowing the introduction of the expert report (estimate) prepared by Mr. Caracci.
4. The trial court erred in granting partial summary judgment on the issue of penalties and attorney fees and denying the motion for new trial on this issue.
5. The trial court erred in granting partial summary judgment limiting the plaintiffs’ property damage recovery to actual cash value rather than replacement cost and denying the motion for new trial on this issue.

We will consider the assignments of error by addressing the trial court’s rulings on the underlying motions and then its judgment denying the plaintiffs’ motion for new trial.

Motion in Limine to Exclude Plaintiffs’ Expert Witness A. Vincent Caracci

Following the Hurricane, the plaintiffs hired Mr. Caracci, owner of Gulf Coast Construction, to inspect their home for both wind and flood damage and to give them an estimate to repair the damages. Based on Mr. Caracci’s estimate, the plaintiffs claimed State Farm underpaid their wind damages by $70,000.00. The plaintiffs listed Mr. Caracci as a witness on their pre-trial witness list. After deposing Mr. Caracci, State Farm sought to exclude him from testifying as an expert, arguing that his opinion failed to meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Specifically, State Farm argued that Mr. Caracci was not qualified to testify as an expert because he was not a licensed engineer, contractor or insurance adjuster. State Farm also emphasized that Mr. Caracci never prepared the actual wind and flood damage estimates on the Jouve property, but rather A. Vincent Car-acci, IV, Mr. Caracci’s grandson, prepared the estimates using “Xactimate,” a computer program, while assisting his grandfather at the inspection.

The Louisiana Code of Evidence allows a witness to qualify as an expert witness by knowledge, skill, experience, training or education. La. C.E. art. 702. The admissibility of expert testimony turns upon whether the trier of fact will be assisted in understanding the evidence or determining a fact in issue. Comment (a) to La. C.E. art. 702.

In Cheairs v. State ex rel. Dept. of Transp. And Dev., 2003-0680, pp. 1-2 (La.12/3/03), 861 So.2d 536, 538, the Louisiana Supreme Court recognized that Dau-bert addressed only the issue of the reliability of an expert’s methodology and not whether an expert possessed the proper qualifications to testify. The Court, therefore, adopted three-part inquiry set forth in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), concluding it “provides more comprehensive guidance to district courts determining the admissibility of expert | (¡testimony.” Id., 2003-0680 at 10, 861 So.2d at 543. Thus, the admission of expert testimony is proper only if all three of the following guidelines are met: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue. Id., 2003-0680 at 9, 861 So.2d at 542, citing Harcros Chemicals, 158 F.3d at 562.

“A trial court is accorded broad discretion in determining whether expert testimony should be admissible and who should or should not be permitted to testify as an expert.” Everhardt v. Louisiana Department of Transportation and Development, 2007-0981, p. 15 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 (citations omitted). Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in a specialized area is within the sound discretion of the trial court. Id. A trial court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Id.

In support of its motion in limine, State Farm submitted the deposition testimony of Mr. Caracci, who testified that he was neither a licensed engineer nor licensed insurance adjuster. Although he referred to himself as a contractor, Mr. Caracci acknowledged that he had not held a valid contractor’s license in fifteen years. Mr. Caracci testified that he had never taken any insurance adjusting classes 17to determine wind versus flood damage, but rather relied on his past experience evaluating property damage following Hurricane Betsy in 1965 to prepare his Hurricane Katrina related estimates.

Regarding the inspection of the Jouve property, Mr. Caracci recalled that his son (grandson) and Jose Terwought, a roofer, accompanied him on the inspection. According to Mr. Caracci, they walked throughout the house and his son (grandson) prepared the actual damage estimates using the Xactimate computer program. Mr. Caracci admitted that due to his poor health he was unable to complete the inspection. He acknowledged that he never inspected the attic or the roof. Mr. Carac-ci also verified that he had no knowledge of the condition of the Jouve property prior to Hurricane Katrina.

Plaintiffs opposed the motion, arguing that Mr. Caracci qualified as an expert because he had extensive experience estimating property damage. They pointed out that he had been in the contracting business since 1965 and had prepared property damage estimates for both homeowners and insurance companies over the years.

Following the motion hearing, the trial court concluded that Mr. Caracci did not qualify as an expert because he lacked a viable methodology for his opinion, failed to properly inspect the Jouve property, and never prepared the damage estimate at issue. After reviewing Mr. Caracci’s deposition and other evidence in the record, we cannot say the trial court abused its discretion by granting State |8Farm’s motion in limine to exclude the testimony and damage estimate of Mr. Caracci from the trial.

Motion for Partial Summary Judgment as to Plaintiffs’ Bad Faith Claims

Plaintiffs alleged that were entitled to penalties and attorney fees because State Farm acted in bad faith and failed to timely satisfy their claim after having received satisfactory proof of loss. Plaintiffs characterized State Farm’s failure to properly adjust their claim and pay the full amount under their homeowners policy, as arbitrary, capricious and without probable cause.

Both La. R.S. 22:658 and La. R.S. 22:1220 provided for penalties and attorney fees for the insurer’s failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Sher v. Lafayette Insurance Company, 2007-2441, p. 26 (La.4/8/08), 988 So.2d 186, 206. The primary difference is the time periods allowed for payment; La. R.S. 22:658(B)(1) requires payment to be made within thirty (30) days after receipt of satisfactory proof of loss while La. R.S. 22:1220(B)(5) requires payment to be made within sixty (60) days. Id.

One who claims entitlement to penalties and attorney fees has the burden of proving: (1) the insurer received satisfactory proof of loss; (2) the insurer failed to pay the claim within the applicable statutory period; and, (3) the insurer’s failure to pay was arbitrary, capricious and without probable. See Louisiana Bag Company, Inc. v. Audubon Indemnity Company, 2008-0453, pp. 11-12 (La.12/2/08), 999 So.2d 1104, 1112-13; Sher, 2007-2441, pp. 26-27, 988 So.2d at 206.

|9The phrase “ ‘arbitrary, capricious, or without probable cause,’ ... is synonymous with ‘vexatious’ [and] ‘a vexatious refusal to pay’ means unjustified, without reasonable or probable cause or excuse. Both phrases describe an insurer whose willful refusal of a claim is not based on good-faith.” Sher, 2007-2441, p. 27, 988 So.2d at 206-07, quoting Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012, 1020-21. When “there are substantial, reasonable and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, [the insurer’s] failure to pay within the statutory time period is not arbitrary, capricious or without probable cause.” Louisiana Bag Company, Inc., 2008-0453, pp. 14-15, 999 So.2d at 1114. Whether an insurer’s action was arbitrary, capricious or without probable cause is essentially a fact issue to be determined by the trial court and not to be disturbed on appeal absent manifest error. Id., 2008-0453, p. 25, 999 So.2d at 1120.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. A motion for summary judgment will be granted “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.” La. C.C.P. art. 966 B. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall Lobe construed to accomplish these ends.” King v. Parish Nat’l Bank, 2004-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)). When, as in the instant case, the party bringing the motion is not the party that will bear the burden of proof at trial, “the movant’s burden on the motion does not require him to negate all essential elements 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.” La. C.C.P. art. 966 C(2).

The evidence submitted by State Farm in support of its motion for partial summary judgment indicates that the plaintiffs notified State Farm of a loss under their homeowners policy on September 14, 2005. On September 18, 2005, State Farm paid the plaintiffs $2,500.00 for prohibited use. On October 26, 2005, Charles Bradley, a State Farm claims representative, spoke to Mrs. Jouve, who informed him that plaintiffs’ flood claim had been handled. At that time, Mr. Bradley scheduled an appointment to inspect the plaintiffs’ home for the purposes of adjusting the homeowners claim. State Farm inspected the property on November 5, 2005, and issued a check to plaintiffs on November 14, 2005, for wind damage to their home. On December 9, 2005, State Farm received a letter with enclosed documentation from Mrs. Jouve, evidencing additional prohibited use expenses incurred by Mr. Jouve during emergency evacuation. On January 10, 2006, State Farm paid plaintiffs an additional $491.35 for prohibited use.

|nOn May 25, 2006, plaintiffs submitted to State Farm an estimate of $111,535.45 prepared by Mr. Caracci, reflecting the wind damage to the plaintiffs’ property. In response, State Farm arranged a joint inspection of the property with the plaintiffs’ contractor (Mr. Caracci). On June 15, 2006, a State Farm adjuster and Mr. Caracci re-inspected the property. Based on the re-inspection, State Farm paid plaintiffs an additional $35,076.72 on July 7, 2006.

In August 2006, plaintiffs retained counsel to represent them in filing a suit against State Farm. On August 25, 2006, State Farm contacted plaintiffs’ counsel and scheduled yet another inspection of the property for the following day. Several hours later, plaintiffs’ counsel contacted State Farm again to cancel the scheduled re-inspection because the plaintiffs’ had sold the house. State Farm eventually reinspected the property and, on October 4, 2006, paid plaintiffs an additional $6,207.63 for wind damage.

Plaintiffs also made a claim under the State Farm homeowner’s policy for damaged contents, but did not provide State Farm’s counsel with a list of the purported damaged contents until October 27, 2009, more than three years after filing suit. State Farm disputed that these items were covered losses under the policy.

The evidence submitted indicates State Farm timely initiated the loss adjustment of plaintiffs’ property and made an unconditional tender based on the 112fírst inspection within the statutory time period. When plaintiffs’ counsel submitted Mr. Caracci’s estimate to State Farm, State Farm arranged for a re-inspection of the property with Mr. Caracci. Based on the re-inspection, State Farm made a second timely unconditional tender.

Plaintiffs offered no evidence in opposition to State Farm’s motion for partial summary judgment that shows State Farm acted arbitrarily, capriciously or without cause in adjusting their homeowners claim. Given that plaintiffs will have the burden of proof at trial, and thus far have offered no evidence of bad faith on the part of State Farm to create a genuine issue of material fact, we find no error in the trial court’s granting a partial summary judgment dismissing the bad faith claims against State Farm.

Motion for Partial Summary Judgment as to Plaintiffs’ Dwelling Claims

Plaintiffs alleged that State Farm’s payment of $41,346.89 under the homeowners policy for wind damage to their dwelling was insufficient, in part, because Mr. Caracci’s estimate of replacement costs was higher. State Farm filed a motion for partial summary judgment arguing that plaintiffs are not entitled to replacements costs under the terms of them policy because they sold their home to a third party in 2006 in “as is” condition without effecting any repairs. Thus, State Farm contends plaintiffs are only entitled to the actual cash value as of August 28, 2005 of the damaged part of the property.

|13In support of the motion for partial summary judgment on the dwelling claims, State Farm submitted a copy of plaintiffs’ homeowners policy, which provided, in pertinent part:

SECTION I — LOSS SETTLEMENT
Only the Loss Settlement provisions shown in the Declarations apply. We will settle covered property losses according to the following:
COVERAGE A — DWELLING
1. Al-Replacement Cost Loss Settlement — Similar Construction
a. We will pay the cost to repair or replace with similar construction and for the same use on the premises shown in the Declarations, the damaged part of the property covered in Section I — COVERAGES, COVERAGE A — DWELLING, except for wood fences, subject to the following:
(1)until actual repair or replacement is completed, we will pay only the actual cash value at the time of the loss of the damaged part of the property, up to the applicable limit of liability shown in the Declarations, not to exceed the cost to repair or replace the damaged part of the property;
(2) when the repair or replacement is actually completed, we will pay the covered additional amount you actually and necessarily spend to repair or replace the damaged part of the property, or an amount up to the applicable limit of liability shown in the Declarations, whichever is less;
(3) to receive any additional payments on a replacement cost basis, you must complete the actual repair or replacement of the damaged part of the property within two years after the date of loss, and notify us within 30 days after the work has been completed....

|14An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in articles 2045 to 2057 of the Louisiana Civil Code. Sims v. Mulhearn Funeral Home, Inc., 2007-0054, p. 7 (La.5/22/07), 956 So.2d 583, 588-89. The responsibility of the court in interpreting insurance contracts is to determine the parties’ common intent. See, La. C.C. art. 2045; Sims, 2007-0054, p. 7, 956 So.2d at 589. “The words of a contract must be given their generally prevailing meaning.” La. C.C. art. 2047. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and courts must enforce the contract as written. See, La. C.C. art. 2046; Sims, 2007-0054, p. 8, 956 So.2d at 589.

It is undisputed that after Hurricane Katrina plaintiffs never repaired or replaced the dwelling before selling to it to a third party in 2006. Thus, under the clear and unambiguous terms of plaintiffs’ homeowners policy, plaintiffs’ recovery was limited to the actual cash value on August 28, 2005 of the independent wind damaged part of the property. Under Louisiana law, actual cash value is equal to replacement cost value less depreciation. See, e.g. Real Asset Management. Inc. v. Lloyd’s of London, 61 F.3d 1223, 1228 n. 7 (5th Cir.1995).

Considering the appellate standard of review for summary judgment, we find the trial court properly granted State Farm’s motion for partial summary judgment as to the plaintiffs’ dwelling claims. The April 7, 2010 judgment, however, must be amended to delete the words “minus depreciation.” See n. 5, supra.

| plaintiffs Motion for New Trial

After the trial court rendered the April 7, 2010 judgment, plaintiffs retained a new attorney who filed a written motion for new trial based on newly discovered evidence pursuant to La. C.C.P. art. 1972(2). At the June 18, 2010 hearing on the motion, plaintiffs, for the first time, also requested a new trial based on La. C.C.P. art. 1973 .

Specifically, plaintiffs argued they are entitled to a new trial because their former attorney failed to inform them of State Farm’s pre-trial motions and the scheduled hearing date. They claimed that they were unable to present evidence in opposition to State Farm’s Daubert motion, and had they known, would have submitted the affidavits of Ms. Jouve, Donald Coco (a licensed general contractor), and Clinton Bowen (a licensed public adjuster). Plaintiffs also claimed that A. Vincent Car-acci, IV, (grandson) would have appeared at the hearing to testify that he had assisted Mr. Caracci in preparing the property damage estimate.

The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Guillory v. Lee, 2009-0075, p. 38 (La.6/26/09), 16 So.3d 1104, 1131. A party seeking a new trial on the basis of newly discovered evidence must demonstrate that it has done all that is reasonable to lead to timely discovery of the evidence. McGhee v. Wallace Drennan, Inc., 2004-0950, p. 10 (La.App. 4 Cir. 4/20/05), 904 So.2d 3, 9, citing Barker v. Rust Engineering Co., 428 So.2d 391 (La.1983). Newly discovered evidence justifies [ 1fia new trial only if evidence: (1) is discovered after trial; (2) could not, with due diligence, have been discovered before or during the trial; and (3) is not merely cumulative, but instead would tend to change the result of the case. Turner v. Dameron-Pierson Co., Ltd., 95-0143, p. 2 (La.App. 4 Cir. 11/16/95), 664 So.2d 739, 740.

After reviewing the aforementioned affidavits, we find no abuse of the trial court’s discretion in denying plaintiffs motion for new trial. Plaintiffs have not demonstrated any of the four criteria required for the granting of a motion for new trial based on newly discovered evidence.

The submitted affidavits indicate they were generated after the initial hearing and before the hearing on the motion for new trial. However, nothing in the affidavits contain “new evidence” that was discovered after the initial hearing. In fact, the affiants reviewed Mr. Caracci’s report and provided opinions regarding the accuracy and the methodology that was used to generate the report. However, none of the information appears to be “newly discovered evidence.” The alleged new evidence is cumulative, because it includes nearly identical evidence that is included in Mr. Caracci’s deposition testimony, and would not change the result of this case. Lastly, the alleged new evidence certainly could have been discovered, with due diligence, before the trial was completed.

Furthermore, we find plaintiffs have not offered any new evidence that would support the granting of a new trial on the issues of bad faith penalties and attorney fees or dwelling claim damages.

Finally, we find no merit to plaintiffs’ argument that they should be granted a new trial pursuant to La. C.C.P. art. 1973, because the trial court “erred in giving weight to the availability of a malpractice remedy (against plaintiffs’ former | i7attorney) as an alternative to a new trial.” Nothing in the record indicates the trial court suggested that plaintiffs pursue a legal malpractice claim against their former attorney rather than seek a new trial. In fact, at the hearing on the motion for new trial, the trial court responded to plaintiffs’ contention that their former attorney was ineffective by pointing out that the attorney had filed written oppositions to State Farm’s pre-trial motions and appeared at the hearing to argue against them. The trial court also stated that the result could have been the same even if the attorney had notified plaintiffs of the pretrial motions and the hearing.

For the foregoing reasons, the April 7, 2010 judgment is amended to delete the words “minus depreciation” and, as amended, is affirmed. The June 30, 2010 judgment of the trial court is affirmed.

AMENDED AND AFFIRMED

      . Plaintiffs' received two checks from the NFIP for their building loss: the first dated December 12, 2005 in the amount of $113,761.30 and the second dated June 12, 20006 in the amount of $31, 238.70. In addition to their building loss, plaintiffs received two payments, totaling $15,000.00, for contents loss under their flood policy.

      . In addition to State Farm, the plaintiffs sued Carl Mixon, their State Farm agent, and Michael Whittle, the State Farm claims adjuster, but subsequently dismissed their claims against them.

      .The version of La. R.S. 22:658 in effect at the time that plaintiffs’ property was damaged and when the claim was filed with State Farm provided for a twenty-five percent (25%) penalty in cases involving an insurer’s failure to make payment within thirty days of receiving satisfactory written proof of loss. The statute was amended by Acts 2006, No. 813, § 1, effective August 15, 2006, to mandate a fifty percent (50%) penalty in such cases, as well as attorney fees and costs. La. R.S. 22:658 was renumbered as La. R.S. 22:1892 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . La. R.S. 22:1220 was renumbered as La. R.S. 22:1973 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . The April 7, 2010 judgment reads, in pertinent part, "The Motion for Partial Summary Judgment as to Plaintiffs’ claims for Dwelling is GRANTED IN PART, limiting the Plaintiffs' claim to actual cash value minus depreciation,” which State Farm concedes in its appeal brief is incorrect. The words “minus depreciation” should have been omitted.

      . Plaintiffs also filed an application for supervisory writs on July 30, 2010, which this court denied on September 21, 2010. See Jouve v. State Farm Fire and Casualty Co., 2010-C-1104 (La.App. 4 Cir. 9/21/10) unpub.

      . In Daubert, the U.S. Supreme Court established factors for evaluating the methodology employed by expert witnesses, including (1) the "testability” of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (3) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469. The Louisiana Supreme Court, in State v. Foret, 628 So.2d 1116, 1123 (La. 1993), characterized the Daubert factors as “observations" which provide a helpful guide for lower courts in considering the admissibility of expert testimony.

      . A. Vincent Caracci, IV, is Mr. Caracci’s grandson by birth and son by adoption and, in some places in the record, is referred to as A. Vincent Caracci, III. Mr. Caracci also has a son, A Vincent Caracci, Jr., who worked with him in the construction business.

      . State Farm filed a motion for partial summary judgment on plaintiffs' claims for contents and additional living expenses. In the April 7, 2010 judgment, the trial court granted the motion, in part, dismissing with prejudice the additional living expenses claim, and denied the motion, in part, as to the contents claim. The trial court's rulings on those claims are not at issue in this appeal.

      .La. C.C.P. art. 1972(2), provides: A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

      . La. C.C.P. art. 1973 provides, "A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

      . The affidavits along with the affidavit of A. Vincent Caracci, IV, were submitted with the motion for new trial.

      . See Assignment of Error No. 1, supra.