author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Lee VIDRINE.
    No. 08-1059.
    Court of Appeal of Louisiana, Third Circuit.
    April 29, 2009.

      Glen D. Vamvoras, Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, Daniel James Stanford, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Lee Vidrine.
    Earl B. Taylor, District Attorney, 27th J.D.C., Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

hThe Defendant, Lee Dwayne Vidrine, was indicted on two counts of sexual battery of a juvenile under the age of fifteen, in violation of La.R.S. 14:43.1, and five counts of indecent behavior with a juvenile under the age of fifteen, in violation of La.R.S. 14:81. Following a trial by jury, held on March 19-20, 2008, the Defendant was found guilty as charged.

The Defendant was sentenced on June 19, 2008. For each count of sexual battery, the Defendant was ordered to serve concurrent sentences of one year in the parish jail without benefit of parole, probation, or suspension of sentence.

On each count of indecent behavior with a juvenile, the Defendant was sentenced to foui years at hard labor, with the sentences suspended. The trial court also ordered all of the sentences to run concurrently with each other and with each count of sexual battery. The Defendant was also sentenced to three years of active supervised probation. General conditions for probation as set forth in La.Code Crim.P. art. 895 were ordered, as well as the following special condition: one year in the parish jail on each count, to run concurrently with work release and with the counts of sexual battery.

The Defendant did not file a motion to reconsider his sentences. He is now before this court on appeal, asserting that the evidence at trial was insufficient to sustain the convictions on counts four through seven. Additionally, the Defendant asserts that the trial court erred in refusing to conduct a hearing, testing the reliability of expert testimony. Lastly, the Defendant alleges that the trial court erred in allowing the expert witness to express opinions regarding the testimony of the victim being consistent with patterns of sexual abuse and that statistically the victim was telling the truth. We find that the evidence was sufficient to support the Defendant’s 12convictions; however, the remaining two assignments of error have merit. As such, we vacate the Defendant’s convictions and remand the case for a new trial.

FACTS:

Between the months of August and November of 2004, the Defendant participated in various sexual activities involving the teenaged victim, B.M., his neighbor, including touching of B.M.’s penis; viewing pornography; having sex with his live-in partner and accomplice, Curt Fontenot, in front of B.M.; and watching Fontenot perform oral sex on B.M. on six or seven occasions.

ASSIGNMENT OF ERROR NO. 3:

The Defendant challenges the sufficiency of the evidence in his third assignment of error. Thus, we will proceed with an analysis of whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support the conviction. We do so due to the following:

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has |3been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

State v. Hearold, 603 So.2d 731, 734 (La.l992)(footnote omitted).

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

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

State v. Freeman, 01-997, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

The Defendant was found guilty of five counts of indecent behavior with a juvenile and two counts of sexual battery on a juvenile under the age of fifteen. Louisiana Revised Statutes 14:81 reads in pertinent part:

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.

In State v. Cloud, 06-877, p. 9 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, 272, writ denied, 07-86 (La.9/21/07), 964 So.2d 331, this court adopted the definition of a lewd or lascivious act as “ ‘one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner,’ ” quoting State v. Rollins, 581 So.2d 379, 382 (La.App. 4 Cir.1991). See also State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (La.1950).

Sexual battery is defined in La.R.S. 14:43.1, which reads in pertinent part:

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

In State v. Rideaux, 05-446, p. 2 (La. App. 3 Cir. 11/2/05), 916 So.2d 488, 491, the court observed the following ruling in State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La.7/2/04), 877 So.2d 143:

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 finding. State v. Stee, 99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense.

At trial, the fifteen-year-old victim testified that he was born on August 19, 1991. B.M. testified that in 2004 he lived next door to the Defendant and |3co-defendant. He also stated that the Defendant had a pool and that he spent a lot of time at the Defendant’s home, especially on weekends and when he got home from school. B.M. testified that he even stayed overnight at the Defendant’s, house on one or two occasions.

B.M. testified that the first incident occurred at the Defendant’s pool. He explained that he and his neighbors often engaged in horseplay, which sometimes involved pulling down someone’s pants. B.M. testified that on one particular occasion the Defendant pulled B.M.’s pants completely down, exposing his penis and then touched his penis with his hands. B.M. explained that he did not remember exactly how it happened but stated that this was the first time he was touched by his neighbors. He also stated that he did not take the touching seriously and that he dismissed it as horseplay. B.M. testified that the pool incident only happened once.

Next, B.M. testified about a second occasion where the Defendant stuck his hands down B.M.’s pants while he was lifting weights on a weight bench. B.M. explained that the weight bench was located in the Defendant’s garage. When the prosecution asked whether the Defendant touched his penis, B.M. answered in the affirmative. B.M. testified that he was wearing short pants and a muscle shirt on this particular occasion. He also stated that during this particular incident, Fonte-not was not present but that he was possibly somewhere in the house.

B.M. also testified about a third incident that occurred one night when he stayed at the Defendant’s home while his mother had gone out for the night. B.M. testified that after he arrived at their home, his neighbors put pornography on the TV, which was located in the living room. B.M. explained that he was sitting in the living room on a chair while his neighbors, who were completely naked, were sitting on the |fiSofa. B.M. testified that he then observed the Defendant having anal sex with Fontenot in the living room. During this time, the TV was still on. When the prosecution asked B.M. whether he was wearing his clothes, he responded, “Yes, sir, at the time,” and then explained that later on Fontenot came over and removed his clothes. B.M. testified that Fontenot then performed oral sex on him. He also stated that Fontenot was naked at the time and that the Defendant was also present. The prosecution asked B.M. if he had an orgasm in response to the oral sex, and he responded in the affirmative.

The prosecution then questioned B.M. about the last incident that he remembered. B.M. testified about an incident where he looked at pornography on the Defendant’s computer. The prosecution then tried to pinpoint a time frame in which these crimes occurred, as follows:

Q. Over what kind of period, how long from the first panting [referring to the act of pulling down someone’s pants], when he panted you, until the last incident which you just said was the computer, was that more than a year or was that just several months?
A. I think that was a lil [sic] more than a year.
Q. All right. How old were you when the computer thing happened?
A. Thirteen (18) or fourteen (14).
Q. Let me tell you what our parameters are, okay.
A. Okay.
Q. We start in June of 2004. Your dad left in May, right? That’s kind of an easy thing for you to remember, right? A. Right.
Q. So it happened shortly after, — the first time happened, — the panting started shortly after your dad had left?
17A. Yes, Sir.
Q. And we’re gonna go until November which is the end of that year. You turned thirteen (18) in August, is that right?
A. Yes, sir.
Q. So we’ll go till November. We don’t want to go past that November. You understand what I’m saying. So
we’re talking essentially about a six (6) to seven (7) month period?
Q. All right. Now, the computer, the computer incident, did that happen in that six month period or do you know? A. I don’t know. It was the last incident. That’s all I can remember.
Q. That’s all you can remember?
A. Yes, sir.
Q. I mean, months, or what?
A. Yes, sir, months.
A. I guess it was before May of 2005.
Q. Could it be in November of 2004?
A. No, sir.
Q. Okay. What’s the last thing you remember in 2004?
A. Um — I guess it would have to be the whenever I went spend the night over there?

B.M. further testified that he received fellatio from Fontenot seven or eight times and that the Defendant was always present. He stated that the Defendant tried to stop Fontenot a couple of tunes and told him that it was wrong, but that Fontenot |swould do it anyway. B.M. also indicated that on these seven or eight occasions the Defendant and Fontenot were naked most of the time. B.M. testified that he often told them to leave him alone but that it did not really faze them. B.M. further stated that he looked at pornography with the Defendant on the computer once and two or three times on TV. He also stated that they had a couple of pornographic magazines.

In conclusion, the prosecution questioned B.M. as follows:

Q. So it’s your testimony that this defendant touched you twice and it’s your testimony that you received fellatio-it’s the right, appropriate, it comes from Latin, meaning blow jobs, while this defendant was present naked?
A. Yes, sir.
Q. Six (6) or seven (7) times?
A. Yes, sir.

On appeal, the Defendant contends that “[t]he evidence was virtually nonexistent on direct examination as no alleged incidents were testified to have taken place during the requisite time periods.” In particular, the Defendant asserts that the State failed to meet its burden of proof with regard to counts four through six, as B.M.’s testimony on direct did not reveal facts relating to a fourth, fifth, or sixth incident. The only testimony relating to either count was given on cross-examination when B.M. was specifically questioned by defense counsel. The Defendant further contends that the incidents B.M. testified to on cross-examination were never reported to the police.

Count four of the indictment charges the Defendant with committing indecent behavior with B.M. on or about the end of August or the beginning of September 2004. On cross-examination, defense counsel asked B.M. to testify about what | happened after the third incident in relation to the dates asserted in count four, and B.M. testified to the following:

A. I can’t remember.
Q. Okay, what happened the fourth time that’s alleged in the indictment? A. The fourth time, I’m not sure.

Thus, the Defendant argues that B.M.’s testimony is insufficient to prove the elements of count four. While the Defendant acknowledges that B.M. testified to receiving oral sex about six or seven times in the Defendant’s presence, he argues that this testimony was “not tied to any count in the indictment and may have been even repetitive of Counts I to III.”

Count five of the indictment charges the Defendant with committing indecent behavior with B.M. on or about the latter part of September or the first part of October 2004. When defense counsel asked B.M. to testify about count five, B.M. stated that he and his neighbors looked at pornographic magazines and that Fontenot performed oral sex on him. The Defendant contends that B.M. did not report this “fifth” incident to the police during the initial investigation.

Count six of the indictment charges the Defendant with committing sexual battery upon B.M. on or about the latter part of September or the first part of October 2004. When asked to testify about count six, B.M. told defense counsel that a second “weight bench incident” took place, presumably referring to his prior testimony relating to count two. Defendant notes in brief that B.M. “does not say what happened or how a sexual battery took place.” Further, the Defendant contends that this “weight bench episode” was never reported to the police.

Imln addition to challenging the sufficiency of evidence on counts four through six, the Defendant attacks B.M.’s credibility on all counts. The Defendant points out several inconsistencies between B.M.’s testimony and the testimony of the Defendant. At trial, the Defendant testified that his weight bench was not located in their garage, as B.M. indicated on direct examination, but was stored in a shed and was not used by anyone. The Defendant also notes that the investigating officer testified that she did not see a weight bench anywhere in the Defendant’s home or garage. According to the Defendant, the officer’s testimony also “confirmed that there were in fact no incriminating or pornographic video tapes” found in the Defendant’s home. Review of the officer’s testimony reveals that the Defendant is correct in this assertion.

Angela Roberts is a juvenile investigator at the St. Landry/Evangeline Sexual Assault Center. According to her testimony, she was called out to investigate this matter on September 16 or 17, 2005. Her report from that investigation indicates that B.M. told her that the abuse began in 2003 and ended in 2005, about a month before he reported it. She testified that B.M. never told her about the incident where the Defendant touched his penis at the pool, nor did he mention anything about the Defendant sticking his hands down his pants or anything else involving a weight bench. She testified that she searched the Defendant’s home. When asked about the weight bench in the garage, she stated, “I mean, I’m not saying it wasn’t one. I don’t remember[,] I don’t recall one.” She also stated that B.M. told her that there were ten occurrences. She indicated that B.M.’s description of the events was that pornographic videos were put on and then masturbation and oral sex occurred. B.M. also stated that the same thing happened ten times and that after each incident he went home and took a shower. Ms. Roberts searched the entire home of the Defendant and | n seized twenty-six video tapes and the Defendant’s computer. She stated that no other computer was found in the home. Her testimony also revealed that the computer was ordered by the Defendant on August 11, 2005. Ms. Roberts testified that, based on her investigation, the video tapes contained no pornographic material.

Next, the Defendant challenges B.M.’s memory and inability to recall details and argues that B.M. was unsure about when he viewed pornography on the Defendant’s computer. As previously stated, B.M. testified that this was the last incident of abuse. When the victim initially gave his statement to the police in September 2005, he reported that the last incident occurred about a month prior. Thus, this allegation regarding when the last incident occurred is supported by the record, as the Defendant’s computer was purchased on August 11, 2005.

We also note the testimony of Roy Mallet, the officer who investigated the content on the Defendant’s computer. According to his testimony, the Defendant’s computer contained an internet history with a list of sites he claimed suggested homosexual pornography. He could not, however, remember the names of the sites or state how they suggested pornography. He also testified that he did not write a report documenting these sites.

In response to the Defendant’s attack on the victim’s credibility, the State contends that B.M.’s failure to report each incident does not mean that those acts did not occur. The State argues that B.M. admitted that he did not state everything that happened to him in his report to the police. He explained that he “thought Ms. Roberts [the detective] was looking for one incident. I didn’t know she wanted all of them.”

| 12The State further contends that “dates are not essential to the crimes of indecent behavior with a juvenile and sexual battery; therefore, the fact that the time frames were not specifically satisfied by B.M.’s testimony is not an essential issue.” La.Code Crim.P. art. 468. As the State has pointed out in its brief, La.Code Crim.P. art. 468 provides in pertinent part:

The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.

Further, it is well settled in Louisiana jurisprudence that the State is not required to present evidence proving the date of the offense when it is not an essential element of the crime. State v. Yossett, 41,926 (La.App. 2 Cir. 4/25/07), 956 So.2d 109, writ denied, 07-1110 (La.11/21/07), 967 So.2d 1155.

We note that any inconsistent statements made by B.M. were also explained by the testimony of the State’s expert witness, Ms. Judy Benitez. Although the Defendant challenges the admissibility of Ms. Benitez’s testimony in his second assignment of error, under Hearold, 603 So.2d 731, we are required to consider the entirety of the evidence in the sufficiency review. Thus, we will present a brief description of the expert testimony given by Ms. Benitez.

Immediately following B.M.’s testimony, and over defense counsel’s objection, Ms. Benitez was accepted as an expert in “the field of social work with a specialty in the dynamics of victimization.” She testified about the general characteristics of sexual abuse victims and explained that delayed disclosures and inconsistent statements are common among child victims. She also testified about the statistical | ^probability of false reporting with respect to rape cases and stated that B.M.’s testimony in this case did not have the characteristics of false allegations. Ms. Benitez explained to the jury that B.M.’s testimony about the Defendant pulling down his pants and touching his penis was an example of a behavioral characteristic of sex offenders called “grooming,” which is a term used to describe the initial stages of abuse where the offender tests the boundaries of his victim. When questioned on cross-examination about B.M.’s inconsistent statements, Ms. Benitez explained that B.M. described several incidents of abuse that happened in the same manner and stated that “he may have just mixed up a couple of incidents in his mind.” She also explained that B.M. may not have understood whether the officer was asking about the first incident or the last incident of abuse. Thus, if admissible, we find that Ms. Benitez’s testimony vouched for B.M.’s credibility.

In summation, the Defendant was convicted of five counts of indecent behavior with a juvenile and two counts of sexual battery of a juvenile under the age of fifteen. At trial, B.M. testified that the Defendant touched his penis on three separate occasions. B.M. testified that he received oral sex from Fontenot about six or seven times and that the Defendant was always present and usually naked. B.M. also testified about viewing pornographic magazines and indicated that the last incident of abuse involved viewing pornography with the Defendant on his computer.

When B.M. initially reported these events to the police, his description involved pornography, masturbation, and oral sex and indicated that this pattern of abuse occurred about ten times. His report to the police did not include any incident where the Defendant touched him on his penis or mention of any facts relating to his neighbors having sexual intercourse in his presence. He reported that his neighbors |uplayed pornographic videos; however, no such videos were found in the Defendant’s home. The State’s expert witness, Ms. Benitez, explained that inconsistent statements are common among sexually abused children. She testified to the statistical probability of false reporting and stated that B.M.’s testimony did not show signs of being a false report. Ms. Benitez also explained how the Defendant’s behavior fit the pattern of sexual offenders.

With respect to the Defendant’s argument that B.M. failed to mention several of these events in his initial report to the police, we find that this is an attack on the victim’s credibility, which is outside the purview of this court. The State, in its very well-written brief, argues that the victim admitted that he did not state everything that happened to him in his report to the police. He explained that he “thought Ms. Roberts [the detective] was looking for one incident. I didn’t know she wanted all of them.”

Credibility determinations are reserved for the fact-finder. The jury heard the testimony of the victim and the Defendant at trial and, apparently, found the victim more credible. After reviewing the entirety of the evidence, both admissible and inadmissible, we find that it supports the Defendant’s convictions on all counts of sexual battery and indecent behavior with a juvenile. As such, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 1:

The Defendant’s first assignment of error is that “the trial court erred as a matter of law in refusing to conduct a hearing testing the reliability of the expert opinions and testimony of Ms. Judy Beni-tez prior to her testimony at trial.” Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995), [15the Defendant asserts that he has a right to an evidentiary hearing. He further contends that because he specifically and timely moved for a Daubert hearing at trial, his motion was wrongfully denied.

The State argues that a pre-trial hearing was held to determine the qualifications of the expert witnesses, and, thus, the Defendant had ample opportunity to question Ms. Benitez about the reliability of her opinions. The State further contends that the Daubert standards are “not applicable in all cases or with all experts” and that the trial court has broad discretion in how it determines expert reliability, citing State v. Brannon, 07-431 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689; State v. Esteen, 02-1241 (La.App. 5 Cir. 4/29/03), 846 So.2d 167, writ denied, 03-1486 (La.1/9/04), 862 So.2d 978, as examples of the trial court’s broad discretion regarding the use of Daubert hearings to determine the qualifications of expert witnesses.

Toward the end of the State’s case-in-chief and prior to Ms. Benitez’s testimony, the Defendant requested the trial court to conduct a Daubert hearing. The relevant discussion is as follows:

MR. STANFORD: Can I just note for the record that I request a Daubert hearing on the State’s expert to determine whether or not the State’s experts uh — have scientific — whether the test that’s [sic] she’s using to determine whatever she’s gonna determine is based on scientific fact and whether or not it’s been proven in any cases in which she’s relying on. We make that request for a Daubert hearing to determine it.
MR. RICHARD: I think she’s already been qualified as an expert, Judge. I think — this is not like a piece of equipment. This is gonna be testimony based on her experience so—
THE COURT: Yeah, the motion is denied.. I’ve already accepted the witness as an expert before we started trial.

_JjeMR. STANFORD: We just lodge an objection to that, Judge.

When denying the Defendant’s motion, the trial court referred to a hearing that was held earlier that day before the commencement ' of trial. In particular, the hearing was held in response to the State’s request to have expert witnesses excluded from the rule of sequestration. When the Defendant objected on the grounds that the witnesses had not been qualified as experts, the trial court held a hearing, outside the presence of the jury, to consider the qualifications of each witness.

At that hearing, Ms. Benitez attested to her qualifications as an expert in the “dynamics of victimization.” Ms. Benitez has a Masters Degree in Counseling and has served as the Executive Director of the Louisiana Foundation Against Sexual Assault (LFASA) for the past fourteen years. She has worked with sexual assault victims for the past seventeen years and has counseled between four and five hundred victims and their family members. She has qualified twice before as an expert in the dynamics of victimization in sexual assault and domestic violence. She has given over two-hundred professional presentations in twenty-six different states to others involved in this line of work.

According to Ms. Benitez’s testimony on cross-examination, she had never met or interviewed B.M. She only reviewed the documents included in the District Attorney’s case file, which included statements from B.M., his mother, his aunt, his school principal, and the indictment. She did not review any school or counseling records. When asked about the previous cases where she testified as an expert, Ms. Beni-tez testified that she did not interview the victim in those cases either. She explained:

|17I reviewed the witness [sic] statements. The same as in this case. And it was um-what I spoke to was not the act-the case that was in question but in terms of does it fit with what often happens in these types of cases.

Defense counsel attempted to question Ms. Benitez regarding her proposed testimony at trial, but he was interrupted each time by the State’s objection. Their exchange is as follows:

Q. Okay. And so you’re [sic] testimony or your opinion in this case would be—
MR. RICHARD: I’m gonna object. Let me object. He’s asking for her opinion. At this point it’s not about her opinion. This goes for expertise. I object to any questioning that goes to her opinion at this point in time. We’re just here to decide—
MR. STANFORD: Okay. I’ll withdraw it.
MR. STANFORD CONTINUES:
Q. Your testimony then would be to generalize traits of what victims encounter in these types of cases?
MR. RICHARD: Again, that’s asking her what she’s gonna testify to. It’s not going to whether or not she’s and [sic] expert.
MR. STANFORD: I’m trying to find out what she would be qualified as.
MR. RICHARD: No. She’s being qualified as an expert. She doesn’t know what questions I’m gonna ask. I haven’t told Ms. Benitez what I’m gonna ask her.
THE COURT: Sustained.
MR. STANFORD CONTINUES:
Q. So Ms. Benitez, when you were qualified as an expert before, you were allowed to answer any questions that the District Attorney asked you regarding what may or may not have happened in that particular case and how it affected the victim?
118A. No. In those cases it had to do with whether how the victim reacted, specific actions that were taken by the victim were typical of a sexual assault victim or not.
Q. Um-huh. And you were allowed to qualify as an expert without ever having talked to the victim?
A. Yes.

After questioning Ms. Benitez, defense counsel then objected to her being permitted to testify as an expert witness, contending that: 1) she had not talked to any of the witnesses or B.M.; 2) her testimony would consist of generalized opinions about how victims react; 3) he was not provided with her curriculum vitae prior to trial with an opportunity to traverse it, nor was he given notice prior to the day of trial that an expert would be called; and 4) her testimony would not be relevant, since she had only reviewed the witnesses’ statements contained in the case file.

In response, the State asserted that the nature of her testimony would be based on “hypothets [sic] in line with the testimony that’s elicited.” After recognizing Ms. Benitez’s education, training, and experience, the trial court accepted her as an expert in “sexual assault and victim abuse.”

Whether the trial court erred in its refusal to conduct a Daubert hearing at trial:

On appeal, the Defendant contends that the trial court “mistakenly” relied on the pre-trial hearing when it denied his motion for a DaubeH hearing. The Defendant asserts that the pre-trial hearing had “nothing to do with the defense’s right to test the scientific and/or factual basis and reliability of the expert’s opinion(s).” He further contends that the pre-trial hearing did not fall within the standards of a Dau-bert inquiry because the trial court “refused to allow defense counsel to ask questions about Ms. Benitez’s opinion.”

BJn State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. Art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four DaubeH factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. 142, 119 S.Ct. 1167, 143 L.Ed.2d 238.
State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55, writ denied, State ex rel. Allen v. State, 07-530 (La.12/7/07), 969 So.2d 619.

Brannon, 971 So.2d at 517-18.

l2nThe purpose of a Daubert hearing is to determine the reliability of an expert’s methodology, not whether the expert has the proper qualifications to testify. Cheairs v. State ex rel. Dep’t of Transp. & Dev., 03-680 (La.12/3/03), 861 So.2d 536. The pre-trial hearing that was held in this case was for the purpose of determining Ms. Benitez’s qualifications as an expert. Both the State and the Defendant questioned Ms. Benitez about her background, training, and professional experience. She even discussed the nature of her testimony as an expert in previous cases involving victims of sexual abuse. However, she did not state what methodology or reasoning she applied to make that determination. When defense counsel attempted to question her more specifically about the nature of her testimony in this case, he was limited to discussing only her qualifications as an expert as a result of the sustainment of the State’s objection. Consequently, this pre-trial hearing did not reach the level of a Daabert inquiry, as it did not address the reliability of Ms. Benitez’s testimony nor did it address the methodology upon which she would base her opinion.

We find that the trial court should have made this inquiry and allowed Ms. Beni-tez’s testimony for the limited purposes of explaining any delays in reporting, recantations, and omissions of details. See State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697 and Foret, 628 So.2d 1116. Because the trial court never made any determination regarding the admissibility of Ms. Benitez’s testimony and then denied the Defendant a DaubeH hearing, the State was permitted to present the expert’s testimony which exceeded the above-described limitations. Thus, under DaubeH and Foret, the trial court failed to perform its “gatekeeping function.” As such, under the circumstances of this case, we find that the trial court’s denial of the Defendant’s request for a Daubert hearing was an abuse of its discretion.

\„ ASSIGNMENT OF ERROR NO. 2:

Defendant’s second assignment of error is that the trial court committed reversible error, as its failure to hold a DaubeH hearing resulted in damaging testimony that affected the substantial rights of the accused. In support of this contention, the Defendant contends that Ms. Benitez made impermissible statements when she testified that the testimony of B.M. was consistent with patterns of sexual abuse and that, statistically, B.M. was telling the truth.

First, the Defendant argues that Ms. Benitez’s testimony was unreliable under La.Code Evid. art. 702. The Defendant also complains that no proper foundation was offered for Ms. Benitez’s opinions, as her testimony was based solely on her experiences and observations with victims of sexual abuse. Louisiana Code of Evidence Article 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. As such, the State contends that once Ms. Benitez was accepted as an expert witness, her opinion testimony was admissible under the Louisiana Code of Evidence. In his reply brief, the Defendant contends that “the law does not provide for the admissibility of expert opinions merely because the expert ‘says it is so.’ ”

Next, the Defendant contends that Ms. Benitez’s testimony lacks any reasonably-based foundation, as she did not interview B.M. or the witnesses prior to hearing their testimony at trial. The State contends that under La.Code Evid. art. 703, an expert can base his/her opinion on facts or data which are perceived or made known to him at or before the hearing. In his reply brief, the Defendant contends that|22“[s]ince the trial court did not allow a Daubert hearing, we do not have Ms. Benitez’s testimony as to whether it is normal to give opinions without any testing, interviews or preparatory work whatsoever, a proposition that should give the courts considerable pause with regard to its impact on the integrity of the courts.” The Defendant also asserts that “[i]n reference to the concert of Article 703, the comments written in 1988 make it clear that the article speaks to an expert being able to answer hypothetical questions based upon testimony elicited at trial.” The Defendant further asserts that there is “absolutely no testimony or foundation to support Ms. Benitez’s opinion as passing muster under the second sentence of Article 703,” which states that if the facts or data is the type that is “reasonably relied upon by experts in a particular field in forming opinion or inferences on the subject, the facts or data need not be admissible in evidence.”

In this case, Ms. Benitez testified as to the general characteristics of sexual abuse victims, such as delayed disclosures and inconsistent statements. In Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, our supreme court stated similar expert testimony “should be admissible for the limited purpose of explaining, in general terms, certain reactions of a child to sexual abuse like delayed reporting and recantation, when the child victim/witness’ credibility is attacked.” Id. at 215.

In State v. Torregano, 03-1335, pp. 6-7 (La.App. 5 Cir. 5/11/04), 875 So.2d 842, 847, the court stated:

The trial court is vested with wide discretion in determining the competence of an expert witness and its ruling on the qualification of the witness will not be disturbed absent an abuse of discretion. State v. Craig, 95-2499, p. 9 (La.5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). See also, State v. Qutoum, 02-780, p. 7 (La.App. 5th Cir.1/28/03), 839 So.2d 323, 327, writ denied, 03-595 (La.5/30/03), 845 So.2d 1059, citing State v. Craig. In reviewing the decision of the trial court to qualify a witness as an Inexpert, the appellate courts will also consider whether a witness has previously been qualified as an expert. Craig, 95-2499 at 9, 699 So.2d at 870.

Thus, we find that based on Ms. Beni-tez’s training, background, and experience, as well as her prior testimony as an expert witness, the trial court did not abuse its discretion in finding her qualified as an expert at trial. Furthermore, under Chauvin and other Louisiana jurisprudence, Ms. Benitez’s testimony would generally be found admissible.

Additionally, despite a lengthy cross-examination, the Defendant did not raise these specific objections at trial. Thus, under the contemporaneous objection rule, this court finds that these issues were not properly preserved for appellate review. State v. Potter, 591 So.2d 1166 (La.1991); La.Code Crim.P. art. 841.

Lastly, the Defendant contends that Ms. Benitez’s testimony bolstered the victim’s credibility. In this argument, the Defendant challenges Ms. Benetiz’s testimony regarding B.M.’s characteristics being consistent with sexual abuse victims and that B.M. was statistically telling the truth. The State contends that “Ms. Benitez testified in general to the statistics of false reporting” and to the patterns of sexual abuse victims. In State v. Foret, 628 So.2d 1116 (La.1993), our supreme court addressed the issue of whether similar expert testimony could be used to bolster the credibility of sex abuse victims. The court found it improper for the expert to testify that he felt the witness was telling the truth regarding the occurrence of sexual abuse. The court stated, “[t]his expert assessment of the witness’ credibility was improper....” Id. at 1130. However, the court found the expert testimony would be proper as “long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omission of details....” Id. The court ^explained that such testimony will not “substitute [the expert’s] estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the complainant’s testimony for itself.” Id. (quoting Goldstein, Credibility and Incredibility: The Psychiatric Examination of the Complaining Witness, 137 Am.J.Psye-hia. 1238,1240 (1980)).

In the present case, Ms. Benitez testified as to the general characteristics of delayed reporting and inconsistencies in the testimony of child sexual abuse victims, and, to that extent, her testimony was admissible under Foret. However, she also testified to the statistical probability of false reporting. The following exchange occurred between Ms. Benitez and the prosecutor:

Q. You and I talked, Ms. Benitez, about the statistical probability of a false report. And you gave me some statistics from the FBI; is that correct?
A. That’s correct.
Q. Would you tell the Jury what the statistical-what the FBI finds as the percentages of false reports in all of these reports of sexual abuse?
MR. STANFORD: I’m gonna object to that, Judge, because I don’t have any data to look at, to refute. She can get up there and say whatever she wants to say, and that’s part of this little charade that Mr. Richard-puts her up on a stand and she’s gonna say or go along with whatever he wants her to say.
THE COURT: Well, I qualified her as an expert and you know the rules on the expert. That’s overruled.
MR. STANFORD: I don’t think that’s part of the rules, Judge, that she can just make up information without any supporting documentation.
THE COURT: The objection is overruled.
MR. RICHARD CONTINUES:
Q. You’re making this up, Ms. Benitez? | gsA. I’m actually not, no. According to the FBI when they’re asked, and the reason that the FBI is relevant is that they gather statistics from local law enforcement in the Uniform Crime Report and they release reports periodically.
A. And there is always a lot of question around false allegations of sexual assault because it generally is not something that is done in front of witnesses. So it is usually, you know, that the victim says something happened and the offender says that it doesn’t, that it didn’t. Or they may say, “well, it did, but it wasn’t me”. The FBI says that false allegations of rape or [sic] about the same as false allegations of any other class of violent crime which they estimate to be between two and five percent.
Q. So ninety-five to ninety-eight percent of the allegations of sexual abuse are found by the FBI to be valid. You’re not talking about this case, we’re just talking about statistics?
A. Right. That’s what the FBI says.

Also on direct examination, Ms. Benitez explained that “grooming” is a term used to describe the initial stages of abuse when the offender is “testing the waters” or trying to gain the trust of the victim. She then related the victim’s testimony about the Defendant pulling his pants down and touching his penis as an example of “grooming” behavior. The prosecutor then questioned Ms. Benitez, as follows:

Q. So not only does the victim’s ... behavior fit a pattern, but what he reports as being the pattern of behavior of the offenders, it also fits the pattern, doesn’t it?
A. Yes.
Q. Is there anything that you can tell us that doesn’t fit that you heard?
A. No, I really can’t think of anything that doesn’t fit. Um-single mothers are also in particular-sort of a specially venerable [sic] population because of the fact that, you know, they’re harried, they’re trying to work and made [sic] ends meet. You know, whether-whatever the situation is with the father, the fact that the father is not there on a day-to-day basis make-in particular little boys, you know, there’s a |2svacuum there for positive attention from a male authority figure. So that’s also something that fits a pattern.
Q. Is there anything in the literature that shows or explains the two to five percent false reporting? Is there anything that you saw in here that would be a warning flag or tell us, well, no, that might be one of the ones that might come up in the two to five percent of false reports?
A. No. There was nothing that really-there’s a few hallmarks of false allegations and there’s not a lot of research on this but there’s been a little bit, but there wasn’t anything like that here.

On cross-examination, Ms. Benitez was questioned as to why her testimony regarding the percentage of false reporting only related to incidents of rape. Ms. Benitez explained that the FBI has their own definition of rape and does not track other kinds of sexual abuse. When defense counsel asked how the statistic applied to the crime in this particular case, she replied, “it’s not an exact fit but it’s-I think it’s as close a parallel as we’re able to get. To my knowledge ... there’s been no study on how many cases of childhood sexual abuse were proven to be false.” Ms. Benitez was then asked to explain how the FBI statistic could be a “close fit” since there have been no other studies. She responded by stating, “I believe that folks who are in support groups and people who have had similar experiences comparing rape with childhood sexual abuse ... the dynamics are very much the same.” She then stated that this opinion was based on her experience, education, and training. Defense counsel then asked Ms. Benitez if victims lie. She replied, “Yes. Do they lie about having been sexually assaulted.... I don’t believe that very many do.”

Also on cross-examination, Ms. Benitez testified that it is very common for children to remember additional details after giving them initial report. Defense counsel then questioned Ms. Benitez about B.M.’s inconsistent statements, and she replied, as follows:

|27I also think though that it sounded like there were several incidences that were quite similar in terms of what happened, how it started, what kind of porn was involved, and that he may have just mixed them up or he may not have understood when you say the first time or was it the last time, I mean, you know. I — well, I’m not gonna make an analogy, but — I think he may have just mixed up a couple of incidents in his mind.

We find that Ms. Benitez’s statements went beyond merely providing a scientific perspective from which the jury could evaluate B.M.’s testimony and spoke directly to B.M.’s credibility and to the specific facts of this case. In particular, her testimony regarding the statistical probability of false reporting of rape cases was irrelevant to the charges at hand and was clearly offered for the sole purpose of bolstering the credibility of B.M. Her opinion regarding the conduct of the Defendant, which she classified as “grooming,” was unduly prejudicial because it suggested Defendant’s conduct fit the pattern of a sexual offender. We further find that Ms. Benitez’s testimony on cross-examination conveyed to the jury that she believed the B.M.’s testimony. See Hearold, 603 So.2d 731.

Accordingly, under Foret, Ms. Ben-itez’s statements were inadmissible as her testimony impermissibly bolstered B.M.’s testimony and, in all probability, made it more believable to the jury. Moreover, we find that the admission of the expert’s testimony affected substantial rights of the accused. For these reasons, we find that the erroneous admission of the expert’s testimony was not harmless error. The Defendant’s convictions are reversed, and the matter is remanded for a new trial.

We further note that, in its brief, the Defendant sets forth two additional grounds to challenge the reliability of Ms. Benitez’s testimony. First, the Defendant points out that at the pre-trial hearing, the trial court accepted Ms. Benitez as an expert in “sexual assault and victim abuse.” However, at trial, Ms. Benitez was ^qualified as an expert in “social work with a specialty in the dynamics of victimization.” Second, the Defendant contends that there is no evidence in the record indicating that Ms. Benitez’s explanation of victimization is supported by scientific data or related to a recognized field of study. Although the Defendant objected to Ms. Benitez being accepted as an expert witness, we find that his failure to specifically state these grounds to the trial court precludes him from raising them on appeal. Potter, 591 So.2d 1166; La.Code Crim.P. art. 841.

CONCLUSION:

We find that the trial court’s denial of the Defendant’s request for a Daubert healing was an abuse of discretion. Further, we find that certain portions of the State’s expert’s testimony impermissibly bolstered B.M.’s testimony/credibility. Accordingly, the Defendant’s convictions are vacated, and the matter is remanded for a new trial.

CONVICTIONS VACATED; REMANDED FOR A NEW TRIAL.

      . Use of initials is in compliance with La.R.S. 46:1844(W).


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brian A. VERRET.
    No. 08-1335.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    Michael Harson, District Attorney, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Brian A. Verret.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.
   AMY, Judge.

liThe defendant was charged with four counts of negligent homicide, violations of La.R.S. 14:32. A jury found him guilty as charged, and the trial court sentenced him to serve five years at hard labor on each count, to run concurrently. One year of the sentence was suspended, Further, it ordered the defendant to pay restitution in an amount to be determined by the Division of Probation and Parole or after a hearing subsequent to his incarceration. The defendant appeals, arguing that the evidence is insufficient to support his convictions and that the restitution portion of his sentences is not founded in law. For the reasons that follow, we affirm the defendant’s convictions but vacate the defendant’s sentences and remand the matter to the trial court for resentencing.

Factual and Procedural Background

On September 30, 2006, the defendant, Brian A. Verret, was traveling in his Mustang on Ambassador Caffery Parkway in Lafayette toward Johnston Street. The State presented witnesses who testified that he appeared to be racing another vehicle, a black Honda CRX, as he approached the bridge on Ambassador Caf-fery. The State alleged that while on the bridge, the defendant lost control of his Mustang, entered a lane of oncoming traf-fie, and hit a vehicle, a white Honda Accord. The Honda Accord was occupied by James Thibodeaux, Danielle Thibodeaux, Jeremy Meche, and Sunshine Jasek. All four of the occupants died as a result of the automobile crash.

The defendant was charged with four counts of negligent homicide, violations of La.R.S. 14:32. A jury convicted him on all four counts, and the trial court ordered a presentence investigation. At the sentencing hearing, the trial court sentenced the defendant to five years at hard labor on each count, to run concurrently with one | .¿another. One year of the sentence was suspended, and as a condition of probation, the defendant was ordered to pay restitution in an amount to be determined. The defendant appeals, contending that “[tjhere was insufficient evidence to convict Defendant of negligent homicide,” and “[t]he sentence is not founded in law with respect to restitution ordered.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920 , all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an error patent requiring the sentences to be vacated.

At the sentencing hearing, the trial court stated:

For each count of negligent homicide, I am imposing a sentence of imprisonment at hard labor for five years. All of those will be concurrent sentences.
I am ordering that you serve four years of this sentence and that one year of the sentence be suspended. And I am suspending that year because I want to — During the term of probation, there are some conditions to be met, including some restitution payments to be made in that.
The suspension of the one year that’s going to be suspended after the first four years are served are going to be conditioned on the following:
_Ll- • • •
The period of probation is going to be four years, to give him time to make those restitution payments.

The trial court unequivocally imposed a five-year sentence on each count to run concurrently. When it ordered suspension of one year and discussed the terms and length of probation, however, the trial court only referred to one sentence. Insofar as the trial court failed to specify to what counts the suspension and probationary period applied, the trial court imposed indeterminate sentences.

This court addressed a similar issue in State v. Morris, 05-725, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107, 1113, wherein it found that “[t]he trial court imposed indeterminate sentences because it suspended the sentences and placed Defendant on five years of supervised probation without specifying to which count or counts the probation applied.” In Morris, 918 So.2d 1107, the court quoted from State v. Taylor, 01-680, p. 2 (La.App. 3 Cir. 11/14/01), 801 So.2d 549, 550:

After suspending five years of the defendant’s eight-year sentence and the totality of the six-year sentence, the trial court imposed a five-year supervised probation period. It is unclear, however, to which sentence this probation period applies or whether it applies to each. Thus, the sentences are indeterminate and in violation of La.Code Crim.P. art. 879, which provides: “If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.”
Finding the defendant’s sentences indeterminate, we vacate the sentences and remand this matter to the trial court for the imposition of determinate sentences. In doing so, we instruct the trial court to specify whether the periods of probation are to be served concurrently or consecutively and upon what point the probated sentences begin as to each count. See La.Code Crim.P. art. 883.

Accordingly, we vacate the sentences on the grounds they are indeterminate and remand the case for resentencing. Upon remand, if any periods of probation or | suspension are imposed, the trial court is instructed to specify to which count(s) they apply.

Insufficiency of Evidence

In his first assignment of error, the defendant argues that “[t]he evidence presented was insufficient to support the jury verdicts of negligent homicide.” Particularly, he asserts that the identity of the defendant as the driver who was driving erratically was never positively established, especially in light of the fact that there were allegedly two cars racing.

This court set forth the analysis for evaluating a claim of insufficient evidence:

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

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

A jury convicted the defendant of four counts of negligent homicide. Louisiana Revised Statutes 14:32 provides, “[njegli-gent homicide is the killing of a human being by criminal negligence.” “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the | ^standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12. In relation to causation, the fifth circuit stated:

The Louisiana Supreme Court has held it is not essential that the State prove the defendant’s action was the sole cause of the victim’s death. In a
case involving charges of negligent homicide arising from a “drag racing” accident, the supreme court found the proper test is whether the defendant’s conduct was a substantial factor in bringing about the ensuing death.” State v. Martin, 539 So.2d 1235, 1239 (La.1989), citing State v. Matthews, 450 So.2d 644, 646 (La.1984).

State v. Bellow, 08-259, pp. 11-12 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 314.

William Sandy Kaplan testified that he was stopped at the traffic light at the corner of Settlers Trace and Ambassador Caffery Parkway on the night of September 30, 2006. He testified that he was familiar with “high-performance motors” as he “was one of the founding members of the Porsche Club of America chapter here in Lafayette in the late '70’s.” He stated that on September 30, 2006, he “saw two cars racing down Ambassador Caffery towards the mall.” He continued, stating, “I thought to myself, oh, my God, man, somebody’s going to get hurt doing that. Because they were going very, very fast. And they were red-lining.” He explained that “[r]ed-lining is when an engine is revved up very, very fast, and it’s going at the top speed in that gear. It makes a whining sound.” Mr. Kaplan further explained that he thought one of the cars was a Mustang and that the other was either a Mustang or a Honda. Ultimately, he concluded that he had “no doubt” that one of the cars was a Mustang, and there was “absolutely, unequivocally no doubt in [his] mind” that the two cars were racing. The clay after the accident, Mr. Kaplan read about the crash and contacted the police.

Kristen Kahanek testified that on September 30, 2006, at 9:30 p.m., she was traveling in the left lane on Ambassador Caffery towards the mall. She heard “very, |fivery loud mufflers approaching from behind.” She stated that the cars passed her and that the Mustang switched lanes very quickly several times. When asked about the speed of the vehicles, she stated that “it seemed as if they were going about 100 miles an hour.” She indicated they were driving at an “extreme rate of speed” and appeared to be racing. She stated that the Mustang drove into oncoming traffic after switching lanes several times. Further, she testified that she saw the brake lights of the Mustang when it entered into oncoming traffic but never saw brake lights on the other vehicle.

In the statement she gave the night of the accident, Ms. Kahanek said she thought both of the cars were Mustangs. She testified that the car that almost hit her while changing lanes was a Mustang, and she recognized the car because her sister and her neighbor both drove Mustangs. Also, in her statement to the police, she explained that the cars appeared to be going 100 miles an hour but acknowledged that they could not have been driving that fast. She testified that “[i]t was definitely, definitely faster than 50.”

Pam Ballantyne and her husband were traveling on Ambassador Caffery toward Verot School Road on September 30, 2006. She testified that as they were getting onto the bridge, she noticed that headlights were coming toward her. She stated, “[i]n that instant, the car that was coming towards us slammed into the car that was in front of us.” Based on her observation of the crash, she indicated she did not think the driver of the Honda Accord could have done anything to avoid the collision.

Tyrone Cormier testified that he and his wife were driving on Ambassador Caffery toward Kaliste Saloom Road two cars behind the Honda Accord involved in the accident. He stated that he “noticed a vehicle that was coming across the double yellow, into [his] lane. And it was a loud— a loud collision.”

|7The State’s next witness was Corporal Michael J. Onezime, the traffic motor officer in charge of the investigation of this accident. He testified that he left the scene of the accident and went to the intensive care unit at Lafayette General to speak to the defendant. After personally determining that the defendant was lucid, alert, and able to converse, Corporal Onez-ime stated that he advised the defendant of his Miranda rights and he inquired about the accident. He testified that the defendant relayed to him that he and his girlfriend went to the Sonic on Kaliste Saloom Road, ate a Blizzard, and drove down Ambassador Caffery at about 60 miles an hour. When questioned about the events that transpired once he was on the bridge, the defendant told Corporal Onezime that he could not remember. Corporal Onezime explained that the defendant “kind of paused and glanced at his father, and then looked back at [him] and said he don’t [sic] remember or couldn’t recall.” The officer further stated that he asked the defendant “if there was any vehicle or anything that would have prevented him from operating his vehicle in a safe manner, and he stated no.” His testimony also indicated that the defendant’s father spoke with him privately and was aware of the issue of racing despite the fact that the officer never mentioned it previously.

Natalie Metrejean testified that she was driving the car immediately behind the Honda Accord. She described the collision as an “explosion” and stated that she did not see any reckless operation by the victim.

The State also called James Lee Hay-good, III to testify. The record indicates that Mr. Haygood was a passenger in the black Honda CRX driven by James Scott, the individual who was allegedly racing with the defendant. Mr. Haygood was traveling on Ambassador Caffery toward Johnston Street on the night of September |s30, 2006. He stated that they were traveling in the left lane and that the defendant drove past them on the right. He testified that nothing was said or gestured between the two cars and once the defendant passed them, they accelerated and got into the right lane. He claimed that he then saw “the Mustang coming up, you know, faster than normal[.]” Mr. Hay-good indicated that he checked the side mirror and noticed the defendant’s headlights go to the left. Then he heard what he called “an explosion,” and he looked behind him and saw the Mustang rotating. He told Mr. Scott that someone just wrecked. He stated that Mr. Scott did nothing to contribute to the accident; he testified that Mr. Scott maintained his speed and never slammed on the brakes while crossing the bridge. Mr. Haygood told the investigating officer the reason they did not return to the scene to talk to the police that night was because they were nervous and scared.

James Scott testified that he was driving a 1991 Honda CRX the night of the accident. He stated that the defendant “came up on the side of me really fast.” He explained that he accelerated to get in the right lane in order to pass the defendant. Further, his testimony reveals that he tried to return to the bridge after the crash, but police and emergency personnel were already there. He and Mr. Haygood then continued on to their friend’s house. He indicated that he did not immediately contact the police because he was scared, nervous, and had been in an accident once wherein he had almost been killed. The record shows that Mr. Scott had a history of traffic-related offenses.

Tracy Campbell, the defendant’s passenger and girlfriend, testified that she and the defendant were driving on Ambassador Caffery after having gone to eat ice cream at Sonic. She stated that while on Ambassador Caffery, a vehicle drove by them on lathe left, making a “whining noise.” She explained that the other car “stayed on the side of [them], kind of revving the engine, speeding up, slowing down.” She said it was possible that the defendant revved his engine in response. She stated that nothing about the defendant’s speed alarmed her. She testified that the “small black car on the — to the left of [them] sped up, got in the front of [them], and slammed on [its] brakes.” After the car slammed on its brakes, she stated that the defendant lost control of the vehicle. She indicated that while she visited the defendant at the hospital, the defendant appeared to be confused and did not seem to know that she was in the accident with him.

Richard L. Fox was accepted as an expert in traffic accident reconstruction. Regarding the speed of the vehicles involved in the crash, Mr. Fox testified as follows:

So from 32 to 37 is the post-impact speed for the Mustang. Delta-v was 52. If you add those together, he [the defendant] could have been going 89, looking at those figures.
Therefore, with the [victim’s] Honda doing 40 miles an hour, the Mustang was going between 72 and 82 just before the impact.

When asked about the possibility of Mr. Thibodeaux, the driver of the Honda Accord, reacting to avoid the collision, Mr. Fox testified that “[a]t 40 miles per hour, I calculated that Mr. Thibodeaux needed at least 2.232 seconds to take a meaningful reaction to the hazard that he was faced with.” He explained, however, that his investigation led to the conclusion that Mr. Thibodeaux only had .7136 seconds, assuming that he actually saw the Mustang while it was losing control. Had he not seen the Mustang spinning out of control, the reaction time as calculated by Mr. Fox would only have been .5 seconds. It was his opinion that “Mr. Thibodeaux had no chance to avoid the crash.”

|inThe defense called Michael James, Jr., who was accepted as an expert in accident reconstruction and human factors that relate to accidents. He testified that based on his calculations, the defendant was traveling fifty-five to sixty miles per hour prior to losing control. Mr. Fox testified again as a rebuttal witness and stated that Mr. James’s formula used to determine the speed of the Mustang was not correct.

Regarding reaction time, Mr. James stated that Mr. Thibodeaux would have had 1.5 seconds to react — enough time, he claims, to jerk a steering wheel and avoid the collision. However, he ultimately admitted that if Mr. Thibodeaux failed to see the Mustang initially losing control, he would not have reacted.

Vernon “Dean” Tekell, Jr. testified for the defense as an expert in the field of traffic engineering. His testimony related to the operating speeds along the pertinent part of Ambassador Caffery; the November 2006 speed study he relied on indicated that over seventy (70) percent of the vehicles that travel on the Ambassador Caffery bridge travel over fifty (50) miles an hour and that seventy-nine (79) percent traveled between forty-five (45) and fifty-four (54) miles per hour. He testified that the maximum speed limit posted at the time of the accident was fifty (50) miles an hour but that “[i]n the area of the bridge, it would not at all be unreasonable to post a speed limit of [fifty-five] 55 miles an hour.”

Dr. Emil Laga, an expert in forensic pathology and toxicology, testified that the driver of the Honda, Mr. Thibodeaux, “smoked marijuana within three hours pri- or to the drawing of the blood,” which was done shortly after the accident. He added that “the risk of being involved in an accident while having that kind of a count of marijuana in your blood is increased at least two times over what is being seen in people involved in accidents that do not have any marijuana in their blood.”

| n Further, Dr. Laga testified that the defendant did not have any alcohol or drugs in his system at the time of the accident. However, while at the hospital, he was administered Versed and morphine — a combination of medicine that can, according to Dr. Laga, impair a person’s memory about events that happened before and after the time the drugs were administered.

On appeal, the defendant argues that the evidence was insufficient to convict him of four counts of negligent homicide. In particular, he claims that “Mr. Kaplan did not testify that he could identify either one of the cars or the occupants.” He also contests Ms. Kahanek’s characterization of the Mustang as the vehicle that changed lanes erratically, pointing out that in her statement to the police she described both cars as Mustangs. Further, the defendant contends that Ms. Ballantyne “could not estimate the speed of Defendant’s Mustang.” In light of Mr. Kaplan and Ms. Kahanek’s testimony regarding the excessive speeding of two cars, the identification of a Mustang as an involved vehicle, and their independent observations of erratic lane changing, the jury could have determined that their failure to positively identify the defendant in the vehicle is of no consequence. Further, the jury could have given more weight to the expert testimony of Mr. Fox than to that of Mr. James. Insofar as a rational jury could have found the defendant guilty of negligent homicide beyond a reasonable doubt based on the evidence presented, we find that this assignment of error lacks merit. Restitution

In his second assignment of error, the defendant contends that the portion of his sentence imposing restitution is not founded in the law. The trial court, as a 112condition of the defendant’s probation, ordered the defendant to pay restitution as follows:

... you make restitution payments, which are to be in addition to any insurance payments made.
And, rather than setting specific restitution amounts — Because I know that, at this time, Mr. Verret is gainfully employed and making a significant income — I’m not sure what his situation will be when he is released — I am going to ask that probation and parole make a determination.
But I do want it clear that I want restitution-paid to the children of all of these people — in other words, the son of Danielle and James Thibodeaux, to the daughter of Jeremy Meche, and to the children of Sunshine Jasek.
And the probation officer — I am going to ask for their input into it. If there cannot be some determination made, then, at that appropriate time, we will have a hearing to determine the amount of restitution.
I don’t want to impose an amount that’s impossible to pay, but, on the other hand, I want an amount that’s commensurate with his ability to pay and with the needs in this case — particularly, these children that are without families.

Louisiana Code of Criminal Procedure Article 895.1 provides:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

In State v. Alexander, 03-167, p. 3 (La.App. 3 Cir. 9/10/03), 854 So.2d 456, 458-59, 'writ denied, 03-2822 (La.3/12/04), 869 So.2d 815, this court stated:

| lsAs a condition of probation, the Defendant was ordered to pay a monthly supervision fee and to make restitution to the city of Jeanerette for the expenses incurred as a result of the crime, in an amount to be determined by the Defendant and his probation officer. The judge stated he would hold a hearing and determine the amount of restitution only if the Defendant and his probation officer did not agree on the amount to be paid.
The first error patent concerns the failure of the trial judge to establish the amount of restitution to be paid by the Defendant. This resulted in an illegal sentence. In State v. Dauzat, 590 So.2d 768, 775 (La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992), this court stated:
When a sentencing judge orders a defendant to make restitution to the victim, both La.C.Cr.P. arts. 895(A)(7) and 895.1 require the court, and not the probation officer, to determine the amount of restitution. Because the court failed to determine the amount of restitution owed as a special condition of probation, the defendant’s sentence is illegal. State v. Hardy, 432 So.2d 865 (La.1983). State v. Rogers, 517 So.2d 428 (La.App. 1st Cir.1987).
This error cannot be corrected by an appellate court. Therefore, defendant’s sentence must be reversed with the case to be remanded for resentencing. Upon resentencing, the judge must determine the amount of money taken by the defendant which was not covered by insurance. Restitution for this loss may be ordered pursuant to either La.C.Cr.P. arts. 895 or 895.1.
Therefore, the Defendant’s sentence is vacated and the case remanded for re-sentencing.

Further, in State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court, sitting en banc, overruled a case which held that the method and amount of payment for restitution could not be set by the probation and/or parole officer despite said determination being subject to the trial court’s approval. In so holding, this court stated:

Upon reconsideration, we find nothing in the statute which prohibits the trial court from seeking assistance from outside sources, including Probation and Parole, in formulating the appropriate payment plan. In fact, Probation and Parole may be in a better position to formulate a workable payment schedule than is the trial court. In taking 114advantage of this assistance, the trial court in no way cedes its responsibility to impose the payment plan, and it only becomes effective upon approval of the trial court Therefore, we overrule this court’s previous decision in State v. Brack, 758 So.2d 310.

Id. at 599-600 (emphasis added).

Our error patent review in the present case revealed that the sentences must be vacated due to the trial court’s failure to specify on which count(s) probation and suspension were imposed; additionally, we note that pursuant to Stevens, 949 So.2d 597, the trial court may seek assistance in determining the amount of restitution owed and the manner of its payment. Yet Stevens, 949 So.2d 597 makes clear that the determination will not have any effect until approved by the trial court. Accordingly, the matter is remanded to the trial court with the instruction that should it impose restitution, it comply with La. Code Crim. P. art. 895.1 and Stevens, 949 So.2d 597.

DECREE

For the foregoing reasons, the defendant’s convictions for negligent homicide are affirmed. The sentences are vacated, and the matter is remanded to the trial court for resentencing with ■ the instructions that if any suspension or probation is ordered, it be specified on which count(s) they are imposed and if restitution is ordered that it be in accordance with this opinion.

CONVICTIONS AFFIRMED. SENTENCES VACATED. REMANDED FOR RESENTENCING.

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


author: AMY, Judge. COOKS, J.,

text:
    Glenda SAVOY v. ST. LANDRY PARISH SCHOOL BOARD.
    No. 08-1470.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    Rehearing Denied June 10, 2009.

      A. Gerard Caswell, Eunice, LA, for Defendant/Appellee, St. Landry Parish School Board.
    Glenda Savoy, Church Point, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.
   AMY, Judge.

hit is undisputed that the claimant sustained a work-related injury. She was being treated by a physiatrist and filed suit, seeking the employer’s approval to see another physiatrist. The workers’ compensation judge denied the request, finding that the claimant was not entitled to be examined by another physician in the same specialty at the employer’s cost. The claimant appeals, arguing that she was not seeking a second doctor’s opinion; rather she was referred to one by her first doctor after he dismissed her as a patient. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the claimant, Glenda Savoy, was a cafeteria manager for the defendant, St. Landry Parish School Board, when she sustained injuries to her neck after picking up a stack of plates in the dishwashing room. She received compensation benefits and was treated by Dr. Daniel Hodges for several years. The vocational rehabilitation records (FARA records) show that during her treatment, Dr. Hodges, on more than one occasion, released her to do sedentary to light duty work on a trial basis. In relation to these employment opportunities presented to the claimant, Dr. Hodges stated in his deposition that “it just seems that every time we come up with a solution, there’s some sort of, you know, reason why she can’t do that.”

The testimony of the claimant and Dr. Hodges reveals that the claimant was visibly upset and stormed out of one of the rehabilitation conferences; however, the reason behind this action is disputed. The claimant argues that she was upset because the vocational rehabilitation counsel- or continuously presented her with jobs that she was incapable of performing due to her lack of computer proficiency and discomfort | ¡.while driving. The defendant, however, argues that the outburst was a result of a discussion regarding the claimant returning to work.

In the claimant’s medical records, Dr. Hodges noted on August 80, 2007:

At this point, she would like to be assessed by another rehabilitation physician. I will go ahead and refer her to Dr. Steve Rees in Opelousas. She is a bit upset that I will not put her completely and totally disabled. We will go ahead and give her a three month supply of medication and make the referral to Dr. Rees’s office.

Further, Dr. Hodges sent correspondence to the claimant following the August visit, stating: “It has been brought to my attention that you wish to seek further pain management with another physiatrist. Due to this request, I am discharging you from my care.”

The claimant, however, alleges that she did not seek out the services of another physiatrist. Rather, she claims that there was a conflict regarding whether Dr. Hodges was permitting her to go back to work, and in an effort to resolve the conflict, she “asked [Dr. Hodges] for an assessment with another physician to determine [her] level of disability in order for [her] to try to obtain some gainful employment.” She contends that she did not seek further pain management care, as she did not even know that Dr. Rees was a physiatrist. She asserts, instead, that Dr. Hodges referred her to another physia-trist, and, after said referral, Dr. Hodges dismissed her as a patient. Accordingly, the claimant asserts that she is entitled to see Dr. Rees at the employer’s expense.

The employer, however, contends that the claimant was only dismissed from Dr. Hodges’ care because she wished to see another doctor; thus, the referral “wasn’t a referral by Dr. Hodges in the true sense of the word.... ” Accordingly, the employer argues that because Dr. Hodges was the claimant’s choice of physician, the Isclaimant is not authorized to see another doctor in the same specialty without the employer’s prior consent pursuant to La. R.S. 23:1121(B)(1).

The claimant filed a disputed claim for compensation, seeking the defendant’s authorization and payment of treatment with Dr. Rees. The workers’ compensation judge rejected the claimant’s request, finding that the claimant was attempting “to dictate treatment” with Dr. Hodges and wanted a new physician when Dr. Hodges’ orders did not comply with her wishes.

The claimant appeals, assigning as error the trial court’s determination that the defendant was not required to approve her change of physician, particularly in light of the fact that Dr. Hodges dismissed her and referred her to another physiatrist.

Discussion

Louisiana Revised Statutes 23:1121(B)(1) provides:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S.23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another filed or specialty.

The record indicates that the claimant selected Dr. Daniel Hodges as her treating physician in the field of pain management and/or physiatry. According to La.R.S. 23:1121(B), she must obtain prior consent from the defendant or its compensation carrier in order to seek treatment from a physician in the same specialty, namely Dr. Rees. The claimant argues that she was not trying to obtain treatment from another physiatrist, particularly since she did not even know who Dr. Rees was or what he specialized in. Further, she asserts that Dr. Hodges provided conflicting statements regarding her ability to return to work and that her request for |4a second opinion was with regard to her level of disability, not a request for treatment with another pain management specialist. Finally, she contends that Dr. Hodges dismissed her, refused to accept her as a patient again, and because the defendant would not authorize further treatment, she is without medical care.

The defendant avers that the claimant “is not entitled to a physician of the same specialty, a second one, unless there is a legitimate and good cause.” Further, it argues that “this is not a case of a need to see a doctor in a[sic] of the same specialty. It is a desire, simply by the plaintiff to do so, because she is not happy with the result or the opinions being given by the physician.... ”

The workers’ compensation judge found that the claimant was “dictating treatment.” In regard to the claimant’s discharge from Dr. Hodges’ care, she stated: “[the claimant] interfered with the doctor/client relationship ... [a]nd if Dr. Hodges felt strongly enough about it, felt that the interference was sufficient to make him not want to continue treatment, that’s not the type of circumstance where I typically allow a second choice in the same field of specialty.” Accordingly, the workers’ compensation judge denied the request for a new choice of a physician.

Workers’ compensation judges’ determinations of fact will not be disturbed on review absent manifest error. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). In light of the fact that Dr. Hodges discharged the claimant due to her “wish to seek further pain management care with another physiatrist” and stated that “she is a bit upset that I will not put her completely and totally disabled,” we do not find that the workers’ compensation judge erred in denying the claimant’s request. See Wiley v. Kenneth Parker Logging, 97-1247 (La.App.3Cir.3/6/98), 711 So.2d 297, wherein the court found that the claimant was not entitled to treatment by another physician |Bin the same specialty merely because the first physician released him to return to work.

DECREE

For the foregoing reasons, the judgment denying the claimant’s request for treatment with another physiatrist at the employer’s cost is affirmed. All costs of this proceeding are assessed to the claimant, Glenda Savoy.

AFFIRMED.

COOKS, J., Dissents.

COOKS, J.,

dissents.

hit is a fact Dr. Hodges, for whatever reason or misunderstanding, now refuses to treat the claimant. She is entitled to select a physician willing to continue her care and treatment.


author: JAMES W. KITCHENS, Justice,

text:
    Tim ROGERS, Appellant, v. Richard CAIN, The Town of Ackerman, Mississippi and the Election Commission of the Town of Ackerman, Mississippi, Appellee.
    No. 2009-EC-00806-SCT.
    Supreme Court of Mississippi.
    May 26, 2009.
   ORDER

JAMES W. KITCHENS, Justice,

for the Court.

This matter is before the Court, en banc, on appeal from a judgment of the Circuit Court of Choctaw County dismissing, for want of jurisdiction, the appeal of Tim Rogers, independent candidate for mayor of the Town of Ackerman, from a decision of the Municipal Election Commission that the qualifying petition of another independent candidate, Richard Cain (the incumbent mayor), contained a sufficient number of signatures of qualified electors of that municipality to allow Cain’s name to be placed on the ballot for the June 2, 2009, general election.

This Court finds, and hereby holds, that the special circuit judge erroneously applied Section 23-15-963, Mississippi Code of 1972, Subsection (1) of which limits application of that statute to candidates who have qualified pursuant to the provisions of Section 23-15-359, Subsection (6) of which provides, in pertinent part, “The provisions of this section shall not apply to municipal elections.... ”

IT IS THEREFORE ORDERED that the judgment of the trial court is reversed and this cause is remanded to the Circuit Court of Choctaw County for further proceedings.

IT IS FURTHER ORDERED that the appellees shall bear the costs of this appeal, that no motion for rehearing will be permitted, and that the mandate of this Court shall issue immediately upon the entry of this order.

IT IS FURTHER ORDERED that this order shall be published in the Southern Reporter.

SO ORDERED.

CARLSON AND GRAVES, P.JJ., AND CHANDLER, J., WOULD AFFIRM.