text:
    Julia NICHOLSON, Plaintiff-Appellant v. HORSESHOE ENTERTAINMENT, Louisiana Partnership, Defendant-Appellee.
    No. 46,081-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Davis Law Office by S.P. Davis, for Plaintiff-Appellant.
    Cook, Yancey, King & Galloway, Shreveport, by Elizabeth Mendell Carmody, for Defendant-Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   GASKINS, J.

|2The plaintiff, Julia Nicholson, appeals from a trial court ruling granting a motion for summary judgment on behalf of Horseshoe Entertainment, Louisiana Partnership (“Horseshoe”) and dismissing the plaintiffs claim for damages arising from personal injury. For the following reasons, we affirm the trial court judgment.

FACTS

On October 9, 2004, between 8:00 and 9:80 p.m., the plaintiff rode Escalator # 5 at Horseshoe along with her husband, Darryl Nicholson, and a family friend, Gary Anderson. The plaintiff claims that when she neared the top of the escalator, it jerked suddenly, causing her to fall approximately 10 to 12 steps, from the top to the bottom. The plaintiff alleged that she suffered injuries to her right elbow, right shoulder, and lower back.

The plaintiff filed suit against Horseshoe, claiming that the defendant knew or should have known of the defective condition of the escalator and failed to correct it. She asserted that Horseshoe was negligent in numerous respects, including failing to provide a safe escalator and failing to warn of the defects. She sought to recover damages for pain and suffering, medical expenses, mental anguish and distress, lost wages, and loss of enjoyment of life.

The defendant answered with a general denial and asserted comparative negligence on the part of the plaintiff. The parties commenced discovery. In answers to interrogatories, Ms. Nicholson stated that when she fell, she experienced a jerking of the escalator. She thought someone might have jumped on the escalator, causing it to jerk. She stated, “I turned to the young man who had [come] with us and next thing I know I was falling and seemed I could not get up.” Ms. Nicholson said in her deposition that she was two steps from getting off the escalator when it jerked, causing her to fall. However, in her deposition, she claimed that she had not turned to talk to anyone at the time she fell.

The plaintiffs husband, Darryl Nicholson, stated in his deposition that the escalator jerked and his wife went sailing by him and Mr. Anderson. He said that his wife had not turned around to talk to him and that no one else on the escalator fell.

[¡¡Horseshoe had a maintenance agreement with ThyssenKrupp Elevator to service the escalators twice a month. Jay Jordan, the technician with ThyssenKrupp who usually performed the service on Escalator # 5, gave an affidavit stating that the company had not received any complaints about the escalator jerking. Prior repairs to the escalator included adjustment and replacement of comb plates, replacement of handrail tension springs and a handrail speed sensor device, and adjustment of the step chain switch. According to Mr. Jordan, none of the items serviced would cause the escalator to jerk. He stated that any jerking motion of an escalator would cause the escalator to automatically stop. Routine maintenance was performed on Escalator # 5 on October 4, 2004, five days before the accident, and no defects or problems were found. Service records for Escalator # 5 were attached to Mr. Jordan’s affidavit.

Horseshoe also produced the video of the accident at issue in this matter. Also, in response to the plaintiffs discovery request, Horseshoe produced incident reports concerning Escalator # 5 for January through September 2004 which showed the following:

• January 6, 2004 — Guest got tired and sat down on floor after getting off Escalator # 5
• May 9, 2004 — Guest’s knee gave out and she fell
• June 3, 2004 — Guest lost balance and fell backward
• June 9, 2004 — Guest missed step and fell
• July 18, 2004 — Guest got dizzy and fell backward
• August 7, 2004 — Guest lost balance
• August 7, 2004 — Guest fell when toe caught on the teeth of the step in front of him
• August 9, 2004 — Guest rode up escalator on hand rail and got leg stuck between escalator and wall
• September 14, 2004 — Guest hit arm on hand rail of escalator

Horseshoe filed a motion for summary-judgment on March 2, 2010, asserting that the plaintiff could not prove the existence of a defect or knowledge or notice of a defect in the escalator by Horseshoe. The defendant maintained that there was no evidence that the escalator jerked, |4that it had a defect which would cause it to jerk, or that Horseshoe knew or should have known of such a defect. Horseshoe pointed out that no one else on the escalator at the time of the plaintiffs accident fell. According to Horseshoe, other instances where people fell on Escalator # 5 were shown to be caused by patron error.

The plaintiff filed an opposition to the motion for summary judgment, claiming that numerous issues of material fact existed in this matter. The plaintiff claimed that there was a disputed issue of material fact as to whether the escalator contained a dangerous heavy jerking defect on the date of the accident which caused the plaintiff to fall, whether Horseshoe knew or should have known of the defect and failed to remedy it, and whether the plaintiff suffered injuries or damages as a result of the escalator accident.

The motion for summary judgment was submitted on briefs. The trial court issued an opinion finding that summary judgment should be granted in favor of Horseshoe. The trial court noted that discovery in this case had been ongoing for five years and that the deposition testimony of the plaintiff and her husband alone was not sufficient to establish that the escalator contained a defect creating an unreasonable risk of harm or that Horseshoe knew or should have known of such a defect. Because the plaintiff failed to establish these essential elements of her claim, the trial court found that Horseshoe was entitled to summary judgment. A judgment to that effect was signed by the trial court. The plaintiff appealed.

MOTION FOR SUMMARY JUDGMENT

On appeal, the plaintiff claims that the trial court erred in granting Horseshoe’s motion for summary judgment, holding that the plaintiff could not satisfy all of the elements of her claim. This argument is without merit.

Legal Principles

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. King v. Illinois National Insurance Company, 2008-1491 (La.4/3/09), 9 So.3d 780; Baker v. Knapp, 45,404 (La.App.2d Cir.6/23/10), 42 So.3d 1044, writ denied, 2010-2073 (La.11/12/10), 49 So.3d 895. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall 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). Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Beneficial Louisiana, Inc. v. Nash, 45,686 (La.App.2d Cir.11/3/10), 55 So.3d 803.

The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2).

The adverse party may not rest on the mere allegations or denials of his pleadings in response to a properly made and supported motion for summary judgment. He is required to set forth specific facts showing that there is a genuine issue for trial. If he does not show this, then summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

On a motion for summary judgment, the district court cannot make credibility determinations or weigh conflicting evidence. In deciding a motion for summary judgment, the district court must assume that all affiants are credible. Brooks v. Minnieweather, 44,624 (La.App.2d Cir.8/19/09), 16 So.3d 1244.

| (¡The plaintiff seeks to recover against Horseshoe under La. C.C. art. 2317.1 which provides:

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

La. C.C. art. 2317.1, enacted in 1996, effectively abrogated the concept of “strict liability” in cases involving defective things and imposed a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of the defect. Hagood v. Brakefield, 35,570 (La.App.2d Cir.1/23/02), 805 So.2d 1230, writ denied, 2002-0557 (La.4/26/02), 815 So.2d 90. See also Riggs v. Opelousas General Hospital Trust Authority, 2008-591 (La.App. 3d Cir.11/5/08), 997 So.2d 814. Actions under La. C.C. art. 2317.1 require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Beckham v. Jungle Gym L.L.C., 45,325 (La. App.2d Cir.5/19/10), 37 So.3d 564.

A defect under La. C.C. art. 2317.1 is a condition creating an “unreasonable risk of harm.” To be a defect, the imperfection must pose an unreasonable risk of injury to persons exercising ordinary care and prudence. Moore v. Oak Meadows Apartments, 43,620 (La.App.2d Cir.10/22/08), 997 So.2d 594.

Discussion

Regarding the requirement under La. C.C. art. 2317.1 that the plaintiff prove that the thing was in the defendant’s custody, Ms. Nicholson notes that Horseshoe concedes it had custody of the escalator.

As to the second element, that the plaintiff prove that the thing contained a defect which presented an unreasonable risk of harm to others, Ms. Nicholson claims that she showed that the escalator contained defects. 17 She asserts that her experience of feeling the escalator jerking demonstrated that it had a defect. She maintains that the escalator stopped temporarily and restarted. She also urges that her husband corroborated that the escalator jerked. The plaintiff argues that the video of the accident is unclear and does not prove that the escalator failed to jerk. According to the plaintiff, the trial court impermissibly weighed the evidence by assessing the credibility of the plaintiff and her husband against the affidavit of the technician who serviced the escalator.

In this matter, Ms. Nicholson and her husband testified in their depositions that the escalator jerked, causing Ms. Nicholson to fall. The video of the incident does not show that the escalator jerked or that it stopped at any point. Others on the escalator did not fall. Service records of the escalator did not show the presence of a defective condition. No other complaints of the escalator jerking were made. However, we need not address the issue of whether Ms. Nicholson showed that the escalator was defective because the plaintiff was unable to produce factual support sufficient to carry her evidentiary burden of proof on all the elements of a claim under La. C.C. art. 2817.1.

Assuming arguendo that the testimony was sufficient to show the existence of a defect in the escalator, the plaintiff has failed to show that Horseshoe knew or should have known of the existence of the defect. The plaintiff argues that, due to the numerous complaints of people falling on Escalator # 5, Horseshoe had actual or constructive knowledge of a defect in the escalator. She claims that the incident reports give few details and do not support Horseshoe’s claim that all nine incidents were the result of patron error. Based upon the service reports involving the other incidents on Escalator # 5, the plaintiff failed to prove that Horseshoe knew or should have known of a defective condition. There had been no prior complaints that the escalator jerked and no other accident had been caused by the escalator jerking. Other accidents on the escalator were attributed to the fault of the escalator rider and the plaintiff failed to present evidence to the contrary.

Ms. Nicholson argues that her injuries could have been prevented had Horseshoe exercised reasonable care by conducting daily or weekly ^maintenance of the escalator and by posting signs warning patrons of the defective condition of Escalator # 5. The plaintiff has failed to show that daily or weekly inspections of the escalator would have prevented her fall. The escalator was inspected twice a month and was last examined five days before this incident occurred. No problems were noted at that time which would have caused the escalator to jerk. Therefore, the plaintiff has failed to show that more frequent inspections were an industry standard or were needed in this specific case.

Ms. Nicholson argues that the doctrine of res ipsa loquitur should have been applied to prove that Horseshoe was negligent. Res ipsa loquitur is a rule of circumstantial evidence whereby negligence is inferred on the part of the defendant because the facts indicate that the defendant’s negligence is the most probable cause of the injury. The test of applying res ipsa loquitur is whether the facts of the controversy suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident. Justiss Oil Company, Inc. v. Monroe Air Center, L.L.C., 45,356 (La. App.2d Cir.8/11/10), 46 So.3d 725.

Res ipsa loquitur is applicable when the following three criteria are met: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or a third person; and (3) the alleged negligence of the defendant must be within the scope of his duty to the plaintiff. Justiss Oil Company, Inc. v. Monroe Air Center, L.L.C., supra. See also Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989); Linnear v. CenterPoint Energy Entex/Reliant Energy, 2006-3030 (La.9/5/07), 966 So.2d 36.

In the court below, Ms. Nicholson did not argue that res ipsa loquitur should be applied. Therefore, Horseshoe contends that Ms. Nicholson cannot now urge the application of that doctrine in this case. However, even if the issue were properly before us, Ms. Nicholson’s argument is without merit.

The facts of the controversy do not suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident. We particularly note that, for the application of res ipsa \ flloquitur⅛ the evidence must sufficiently eliminate other probable causes of the injury, such as the conduct of the plaintiff or a third person. Here, the evidence does not eliminate the possibility that the plaintiff lost her balance and fell due to her own conduct. Therefore, the doctrine of res ipsa loquitur is not applicable in this matter.

Because Ms. Nicholson has failed to establish factual support for all the elements of her claim, there is no genuine issue of material fact and the trial court correctly granted summary judgment in favor of Horseshoe.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court granting summary judgment in favor of Horseshoe Entertainment, Louisiana Partnership, and rejecting the claims of the plaintiff, Julia Nicholson. Costs in this court are assessed to the plaintiff.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James BAKER, Appellant.
    No. 46,089-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Law Offices of Elton B. Richey, Jr., Shreveport, by Christopher Hatch, Elton B. Richey, Jr., for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy Jan Johnson, Geya D. Williams Prudhomme, Karelia A. Stewart, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

| ¡James Baker was convicted of molestation of a juvenile and sentenced to 11½ years at hard labor, eight years of which were suspended. The balance was ordered served without benefits. He was placed on probation, commencing upon his release from prison. We affirm the conviction but remand for resentencing.

FACTS/TESTIMONY

1. KB, the victim

KB, the victim, was adopted at age six by James Baker. When she entered the third grade, Baker began “punishing” her for getting in trouble at school by forcing her to kneel naked on her bed while he inserted his fingers in her vagina. After Baker punished her, he would make her discuss what she had done wrong, what she would do differently next time, and he would tell her he loved her. Once Baker inserted something much larger than his finger in her vagina, but she did not see what it was because she always had her eyes covered either with her hands or her shirt. When Baker was asked if he had put his penis in her vagina, he denied it.

KB testified that Baker was always at home alone when KB would get off the bus from school. He would:

• make her strip naked and sit on his lap;
• wrestle with her and touch her inappropriately;
• grab her breasts and her buttocks;
• not allow her to close her door when she got dressed; and
• make her sit on his lap every day, until she was 16 years old.

KB stated she feared Baker, who was a controlling type of person.

This perverted punishment occurred from the time KB was in the third grade until she was in the eighth grade, whereupon she told her mother, who initially took KB and her younger sister to stay with her parents. Shortly thereafter, she returned to the home with her children, while Baker was still there.

Although the defendant refrained from putting his fingers in KB’s vagina after she told her mother, KB testified that he wanted her to kiss him on the mouth when they said goodbye, and made her feel like she was his girlfriend.

KB testified that because her mother brought her back to the family home with her father still there, she felt like defendant’s behavior was “supposed to 1 shappen.” Her mother even told her that she had been abused as a child and that it was not a big deal. After that, KB never confided in her mother again and, until much later, never told any other family member about the ongoing abuse.

KB had never been told anything about her biological father and did not even know her biological family’s name. In 2008, she obtained her biological aunt’s phone number from records at her parents’ house after the relatives called her mother regarding KB’s biological father’s death. KB began calling and texting them thereafter and established a telephone relationship with her uncle, Michael Wissb-aum, who was a police officer. KB eventually revealed to them that she hated her adoptive father, who had been molesting her for many years. The Wissbaums contacted child protective services in Shreveport, which validated the charges. Around the same time, KB told her high school softball coach that her father was sexually abusing her. The coach also notified the authorities. KB and her sister were removed from the family home. The defendant was arrested and charged for violating La. R.S.14:81.2(A), (C) and (D), molestation of a juvenile.

At the time of the trial KB was a senior in high school. She testified that her contact with her biological family in Missouri was clandestine because her parents did not want her to have contact with them. KB stated she did not tell anyone about the abuse because she just did not want to talk about it. She was embarrassed to tell her mother, who never did anything to correct the situation.

KB admitted that she had lied in the past about a sexual experience with the defendant. She stated she lied to “get back at him,” to make him mad, “for everything he’d done” to her and to be “as controlling as he was over me.” She stated, “He acted like I was just his and everything and he stressed to me on a daily basis — well, maybe not a daily basis, but a regular basis on how boys were not allowed to touch me like he did and other people were not allowed to touch me like he did.” The defendant’s attorney attacked KB’s credibility throughout the cross-examination and pointed out different times KB had lied to friends or misled them in text messages about her situation with her father. He continued to question her regarding minor and irrelevant lies she told at other times. KB admitted that some of her texts were lies, for instance that she was doing drugs, and that she made up those lies because she knew her mother had acquired some software that allowed her access to the content of KB’s text messages. KB was suspicious of her mother and was attempting to goad her into responding so that KB would know if her |4mother was still reading her text messages to friends. KB testified that she was so tired of the process she was being put through while her father was under investigation that at one time she had considered pulling the “it didn’t happen” thing, but she did not think it would work. KB explained she contemplated reneging on her story because she was embarrassed to have to speak to so many people about what had happened to her and it was very unpleasant to have to relive all the bad things that happened to her in her life.

2. Daniel Lay and 3. Billy Crosby

Daniel Lay was the youth pastor at defendant’s church. Billy Crosby was the senior pastor. They testified regarding a 2006 meeting after KB told her mother about the molestation. Lay was contacted by the mother first, and he told her she needed to confront the defendant about the situation. Lay told her that he was going to contact Pastor Crosby and that they would all have a meeting. She and James went to the meeting and both Lay and Crosby testified that James was a broken man, crying, shaking, repeatedly stating that he had not meant any harm. Neither man asked him exactly what he had done, but he never once denied the allegations that KB had made. Lay attended only that one meeting, and then Baker counseled with Crosby four or five times. Stunningly and sickeningly, Crosby told the mother that he was satisfied that James had repented, that the abuse would stop, and that it was a “punishment” thing.

4. The mother

The mother denied ever knowing any abuse was going on before December 2006, and thought that once she was made aware of it, it did not continue. She admitted that the child told her about her “punishment” such as James making her get down on all fours naked so that he would touch her anus and her breasts. The mother confronted the defendant, who acted shocked, professing not to know what she was talking about. They decided to let the church people handle the situation. The mother never went to the police, instead arranging for the girls to go to their grandparents’ homes after school instead of being alone with James. She never asked James about the counseling and never talked about the situation, feeling that it was better not to discuss such things.

She yelled at James and he would just stand there, look down, and not answer her. The mother denied knowing that he placed his fingers in KB’s vagina, though she confessed that the child told her that when she was punished she had a |Bchoice between James putting his fingers in her vagina or her anus. The mother denied witnessing any punishment that would have been considered sexual abuse.

5. Deputy Dorothy Brooks

Caddo Sheriffs Deputy Dorothy Brooks interviewed KB in 2008 when she was removed from the home. Brooks testified KB told her she realized she was the -victim of sexual abuse by her adoptive father only when she was in middle school and the school showed a movie on sexual abuse. It was then she knew that what her father was doing to her was not normal. KB told Brooks that her father would strip naked and they would hang out at the house naked until right before her mother came home from work. KB told her James forced her to sleep naked in bed with him when her mother was out of town and when they went hunting on the weekends. KB told Deputy Brooks that James told her if she ever wanted to have sex with him, he would find it hard to say no.

6. Other witnesses

Other witnesses at trial included:

• K.Y., KB’s friend in middle school in whom KB had confided;
• Wendy Chamberlain, a friend of the mother to whom she turned in 2006 when KB told her the defendant had been molesting her; and
• The mother’s father.

TRIAL AND SENTENCING

The six-person jury convicted the defendant as charged. His motions for post verdict judgment of acquittal and new trial were denied.

Defendant alleged that although he had been charged with violating La. R.S. 14:81.2(A), (C) and (D), the element involved in (D) — that the molestation must have recurred over a time period of more than a year — had never been discussed at trial. A person found guilty of paragraph (D) is subject to a possible penalty of 5 to 40 years at hard labor with at least five years without benefit of parole, while the penalty for paragraph (C) is 5 to 20 years, with benefit of parole. The state stipulated for the trial court to sentence Baker under La. R.S. 14:81.2(C).

At the sentencing hearing, the trial court considered the factors of La. C. Cr. P. art. 894.1 and sentenced the defendant to 11⅜ years in prison at hard labor with the first 3½ years to be served without benefit of probation, parole or suspension of | r,sentence. The balance of the sentence was suspended. Defendant was ordered to register as a sex offender. He was granted bond pending appeal.

DISCUSSION

La. R.S. 14:81.2 states in pertinent part as follows:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense. * * *
C. Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both[.] [T]he defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893. (Punctuation added.)

Sufficiency of the Evidence

Sufficiency Argument # 1

The defense argues the state’s evidence presented at trial was insufficient to support his conviction for molestation of a juvenile because the only witness to provide any direct evidence was KB, who, the defense claims, was shown on the witness stand to be untruthful. The defendant claims that although the court must accord great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency.

Defendant further claims that although the appellate court defers to the trier of fact regarding credibility determinations, that deference is not absolute. He argues that when a jury relies solely on the testimony of a single witness to establish a factual conclusion, another principle comes into play that states, “In the |7absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion.” Stated another way, where a jury relies on one witness’ testimony to establish the guilt of the defendant, that testimony must be free from internal contradiction or conflict with physical evidence. The defendant notes that KB admitted lying frequently.

The defense argues that the balance of the state’s witnesses testified that they heard the allegations against the defendant from KB, or heard the allegations indirectly. As is often the case in sexual abuse cases, there are no witnesses with direct evidence except the victim and the aggressor. The defense points out that the defendant’s wife testified that her husband never confessed to molesting KB, and she never witnessed any such acts against her daughter, or any actions indicating anything other than a normal father-daughter relationship. The direct evidence of the defendant’s guilt was the uncorroborated, contradictory, and vague testimony of the victim. Because the testimony of a single witness should be free of internal contradictions and must reconcile with the physical evidence, defendant argues that we are not bound by the jury’s reliance on KB’s testimony.

Sufficiency Argument # 2

The defense’s second argument is that the evidence is insufficient for a conviction because an element of the crime charged has not been met. That necessary element for molestation of a juvenile is that a “lewd or lascivious act” is done with “the specific intent to arouse or gratify either the child’s sexual desires or [defendant’s] own sexual desires.” In this case, it was repeated at trial many times that the defendant was not sticking his fingers in KB’s vagina for his own sexual gratification, but rather, that it was punishment, like a spanking, for her transgressions at school. The defendant claimed, “As strange as it may seem to characterize the alleged conduct as ‘discipline’ or ‘punishment,’ it was not the defendant who made that characterization, but the victim herself.” Therefore, the defendant claims the state failed to prove every essential element of the charge of molestation of a juvenile, and he is entitled to have his conviction overturned.

The state argues that the testimony of the victim alone is sufficient to convict a defendant and this is especially applicable to the testimony of sexual assault victims. See State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 1999-0331 (La.7/2/99), 747 So.2d 8. The state points out that in the |sabsence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed, is sufficient to convict.

The state notes that the defendant’s argument is that internal contradiction exists that requires this court to reverse the conviction on insufficiency of evidence grounds; however, a look at KB’s testimony reveals this argument lacks merit. Her testimony at trial, which was believed by the jury, described in great detail the abuse she suffered at the hands of her adoptive father from the time she was in the third grade. The state argues that her testimony at trial was subject to the scrutiny of the jury, and they were free to determine whether or not her narrative was plausible. Defendant attacks her credibility by pointing out her past lies, but the jury was able to look beyond this attack and determine that they believed KB had been the victim of her father’s aberrant behavior.

Further, the state notes that evidence in the form of testimony from other witnesses indicates that the defendant consulted with his pastor and never denied having committed these acts. The jury members were able to weigh the witnesses’ credibility and make their determination based on the facts presented. The jury obviously believed that this was perversion, not just punishment.

Our law on review for the sufficiency of the evidence is well settled.

|nIn this case, the evidence presented at trial was sufficient to establish each element of the crime of molestation of a juvenile. The evidence presented satisfies the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There was no internal contradiction in the testimony of any witness, and the evidence presented was sufficient for a reasonable juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime with which he was charged. No matter what the defendant’s alleged justification for sexually abusing his daughter, the jury concluded that there can be no justification for these horrid acts.

Illegal Sentence

Defendant correctly claims that his sentence is illegal because of the denial of eligibility for benefits, contrary to the penalty provision of the crime. He is correct.

We will remand to the trial court for resentencing.

DECREE

The defendant’s conviction is affirmed. The matter is remanded to the trial court for resentencing.

AFFIRMED AND REMANDED.

      . The standard for review in cases that raise a sufficiency of the evidence claim is found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297., The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La. 1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir. 1988).
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438. State v. Cummings, 1995-1377 (La.2/28/96), 668 So.2d 1132. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965 (La. 1986).

      . Curiously, the state makes an argument about ineligibility for good time, which is a different issue from the prohibition of parole, probation, or suspension of sentence.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Kimberly Nicole KEY, Appellant.
    No. 46,119-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   GASKINS, J.

|2The defendant, Kimberly Nicole Key, was initially indicted for first degree murder; however, the charge was later amended to second degree murder. Pursuant to a plea bargain, the defendant pled guilty to the crime of manslaughter. The trial court sentenced Ms. Key to the maximum sentence of 40 years at hard labor. The defendant appeals, urging that her sentence was excessive. We affirm.

FACTS

On March 3, 2003, Bossier City police officers were dispatched to the Mason Motel to assist the fire department with an unresponsive white male. The victim was lying on the floor of a motel room, covered in blood and wearing only his socks. He had been severely beaten about the head and face with a wooden lamp which was found on the floor. The victim was transported to LSU Medical Center, where he was later pronounced dead. DNA evidence was collected at the crime scene. The victim’s wallet was found in the motel room, but it contained neither money nor credit cards.

According to the motel manager, the victim had been coming to the motel two or three times a week for more than a year, usually with a young black woman who appeared to be about 25 years old. He would stay each time for only a few hours. The motel manager did not know the victim’s name because he always paid in cash and was never required to fill out any paperwork. Eventually, the victim was identified as 75-year-old Henry Chaisson.

On the day of the incident, the victim came to the motel between 3:30 p.m. and 4:00 p.m. to rent a room for two hours. The motel manager did not see anyone with the victim. At about 5:30 p.m., the motel manager went to see if the victim had left. He opened the door to the room and found the victim lying on the floor covered in blood.

The motel manager provided the police with a surveillance tape of the property and told the officers that the victim’s vehicle was missing. The surveillance tape showed the victim parking his vehicle near the motel room and entering the room along with a black female at about 3:50 p.m. At about 4:08 p.m., the surveillance tape showed the woman leaving the room and then driving away from the motel alone in the victim’s automobile. From |athe time she left the motel room to the time that the victim was found, no one entered or exited the motel room. Shortly after his murder, three attempts were made to use the victim’s Visa card at an ATM machine.

In July 2008, a DNA profile matched the defendant to the crime scene. She was then contacted by the police. Post-Miranda warning, she confessed that she killed the victim by repeatedly beating him on the head with a lamp and then robbed him of his money, credit card and vehicle.

On July 21, 2008, a Bossier Parish grand jury indicted the defendant for first degree murder; however, the prosecutor subsequently amended the charge to second degree murder. On April 20, 2010, pursuant to a plea agreement, the defendant pled guilty to a reduced charge of manslaughter with the understanding that the trial court would order a presentence investigation (PSI) report.

On June 22, 2010, the defendant was sentenced to 40 years at hard labor, the maximum possible sentence for manslaughter. The trial court articulated several factors it considered in sentencing the 24-year-old defendant. Among them were the following: (1) although the defendant had no other felony convictions, she had other instances of assaultive behavior as she had been previously charged with simple battery of a 13-year-old female and resisting arrest; (2) the particularly heinous nature of the maimer in which the victim was murdered; (3) the case involved an elderly victim; (4) after striking the victim several times, the defendant robbed him of his credit cards, wallet and left the scene of the crime in his vehicle; (5) the defendant showed no signs of remorse for taking the victim’s life and made no mention of an apology to the victim’s family; and (6) after consideration of all the factors under La. C. Cr. P. art. 894.1, no mitigating factors were present that would lead the court to not sentence the defendant to the maximum sentence allowable under the manslaughter statute.

A timely motion to reconsider sentence was filed. In the motion, the defendant argued that the trial court’s sentence was excessive because it failed to consider the following mitigating factors before imposing sentence: (1) the fact that the defendant was only 17 years old at the time of the offense; (2) that there was no gun or illegal weapon used in committing the 14offense; (3) and that the defendant is capable of being rehabilitated without the necessity of a 40-year sentence. The trial court denied the motion.

The defendant appealed her sentence as excessive.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 2006-2768, 2006-2781 (La.6/22/07), 959 So.2d 494.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in |5potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792, State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, supra.

On the second prong of the ex-cessiveness test, the court must determine whether a sentence violates La. Const, art. I, § 20. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.l/14/0S), 839 So.2d 1; State v. Dorthey, 628 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

Absent a showing of manifest abuse of the trial court’s sentencing discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

La. R.S. 14:31(B) provides, in pertinent part: “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.”

DISCUSSION

The defendant argues that the trial court erred because it did not consider mitigating factors before imposing sentence. This argument has no merit; the sentencing transcript reveals that the trial court duly considered the appropriate mitigating and aggravating factors in determining the | ^defendant's sentence. The trial court was intimately familiar with the PSI report and the defendant’s social and criminal history. Before sentencing, the court allowed the defendant, her mother, and her sister to make pleas for leniency.

Ultimately, the defendant’s central complaint boils down to the weight the trial court placed on the mitigating factors. But the trial court was not required to place any particular weight on the mitigating facts; it only had to consider them. See Shumaker, swpra. The sentencing transcript clearly reveals that the trial court fulfilled its obligation.

Moreover, the defendant’s argument that her sentence is excessive because she is not a worst offender and did not commit the worst offense is unconvincing. The crime of manslaughter does not adequately describe the defendant’s conduct in beating an elderly victim to death with a lamp and then proceeding to rob him of his money, credit card and vehicle. This Court has upheld maximum sentences in similar situations. See State v. Jones, 41,-628 (La.App.2d Cir.1/24/07), 948 So.2d 356 (where the defendant received a maximum sentence for manslaughter, a crime which this court held did not adequately describe the defendant’s conduct in shooting the victim in the head over a debt). Moreover, the plea agreement allowed the defendant to avoid potential exposure to a mandatory life sentence which she would have faced if convicted of second degree murder. The defendant’s sentence is neither grossly out of proportion to the seriousness of the offense, nor a needless infliction of pain, nor is it shocking to the conscience. The imposition of the maximum sentence was within the trial court’s discretion.

This assignment of error has no merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Joel Rene WHITMORE, Appellant.
    Nos. 46,120-KA, 46,121-KA, 46,122-KA, 46,123-KA, 46,124-KA, 46,125-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Stephen A. Glassell, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW, and CARAWAY, JJ.
   BROWN, Chief Judge.

|20n October 29, 2007, defendant, Joel Rene Whitmore, was charged by separate bills of information with two counts of indecent behavior with a juvenile (someone whom he believed to be a 12-year-old girl), in violation of La. R.S. 14:81, and four counts of computer-aided solicitation of a minor, in violation of La. R.S. 14:81.3. Defendant waived his right to jury trial and on December 29, 2009, after considering a joint stipulation and evidentiary submissions in lieu of live testimony (transcripts of text messages and chats, and a CD of phone conversations), the trial court found defendant guilty as charged. On April 13, 2010, defendant was sentenced to serve four years at hard labor without the benefit of parole, probation or suspension of sentence for each count of computer-aided solicitation of a minor. These sentences were to run concurrently, for a total of four years. Defendant was also sentenced to serve four years at hard labor, for each count of indecent behavior with a juvenile, to be served concurrently with each other but consecutively to his sentences for solicitation of a minor. The four-year concurrent sentences for indecent behavior were suspended and following his four-year prison term for computer-aided solicitation, defendant is to be placed on five-year active, supervised probation with the condition that he not own or possess a computer during his probation. Defendant was also instructed to register as a sex offender in accordance with La. R.S. 15:541, et. seq. Defendant now appeals his convictions and sentences. For the following reasons, we affirm.

laFacts

On February 19, 2008, defendant filed a pretrial motion to quash, contending that the two statutes (La. R.S. 14:81 and La. R.S. 14:81.3) were unconstitutional, arguing, inter alia, that the statutes were overly broad and/or vague and impinged on his right to privacy and freedom of expression. That same day, the trial court denied defendant’s motion, finding that this motion relied on factual disputes to be determined at trial. The trial court also found the language of the statutes to be clear and unambiguous.

On April 7, 2008, defendant pled not guilty and waived his right to a jury trial. On August 21, 2009, the date set for defendant’s bench trial, the state and defendant offered into evidence a joint stipulation, executed by the state, in lieu of calling witnesses to testify. The trial court informed defendant that by allowing the joint stipulation he was waiving his right to a trial by jury and his right to confront his accusers or witnesses against him.

The joint stipulation revealed that a sting operation had been conducted by the Bossier Parish Police Department. Officer Matt Wright posed as a 12-year-old female using the screen name “Liltara-leel2” to communicate through electronic text messages with defendant. Several online conversations ensued with defendant, whose screen name was “Sagel066,” and whose date of birth is October 5, 1966: on March 20, 2007; June 4, 2007; June 19, 2007; June 22, 2007; June 26, 2007; July 16, 2007, and July 17, 2007. Officer Shelly .Anderson, posing as the same 12-year-old female using the screen name “Liltara-leel2,” engaged in two telephone conversations with defendant on June 19, 2007, and July 17, 2007. The content of the transcripts and a recording of the phone conversations set forth the following facts.

On June 4, 2007, defendant, using the screen name “Sagel066,” sent an electronic message over the Internet to “Liltara-leel2,” a person he believed to be a 12-year-old child. During the conversation, defendant asked “Liltaraleel2” how “experienced” she was with boys, described his past sexual experiences with a 16-year-old girl and a 14-year-old girl, and told her he could teach her to masturbate. He also asked her if she had ever |4performed oral sex on a guy or allowed someone to perform oral sex on her. He told her that all the sex talk had gotten him excited and he was going to look at her picture and masturbate.

On June 19, 2007, defendant told “Liltar-aleel2” that she needed to learn how to masturbate, talked about her having an orgasm, and told her that he would talk her through masturbating if she called him. Defendant told her it was more exciting to share “it” with someone. He also volunteered to watch her when she urinated and to “wipe” it with his tongue. Defendant sent “Liltaraleel2” two links to a pornographic website so that she could learn how to masturbate. Officer Anderson, posing as “Liltaraleel2” called defendant. During the phone conversation, defendant attempted to instruct “Lil-taraleel2” how to masturbate, giving her step-by-step directions.

On June 22, 2007, defendant contacted “Liltaraleel2” through electronic text communication and during the course of their conversation “Liltaraleel2” asked defendant if she was old enough for him. Defendant told her that she was not legally old enough for him, but if she thought she was then it was settled, they should get married. Since she was still a virgin, though, “we’ll have to fix that.” Defendant told her she would be the only cheerleader on the squad with a husband. Defendant also asked “Liltaraleel2” if she had looked at the pornographic website, talked about his penis size, and told her that she needed to try to “get herself off’ if she hadn’t.

On June 26, 2007, defendant again made contact with “Liltaraleel2” through electronic text communication. “Liltaraleel2” indicated that she would be staying with her 13-year-old cousin that week. Defendant told her that she should practice masturbating with her cousin. He offered to drive up there and “show you” and said “I’ll do yours and you can do mine.” However, he said he would never come unless “you invited me.” He also discussed “Lil-taraleel2” and her cousin performing oral sex on him in exchange for him bringing “the good stuff’ (i.e. alcoholic beverages). They discussed age again and defendant said while he was too old for a long-term relationship they could have fun (“movies, talking, sex, alcohol, shopping”). |5 Defendant reassured “Liltaraleel2” there are tons of ways to have sex without actually “f**king.”

On July 17, 2007, defendant asked “Lil-taraleel2” if she was practicing her masturbation. Also on July 17, 2007, Officer Anderson, posing as “Liltaraleel2,” called defendant, who again gave her step-by-step instructions to assist her in .masturbating.

On December 29, 2009, the trial court, after considering the joint stipulation and attached exhibits, found defendant guilty of four counts of computer-aided solicitation of a minor and two counts of indecent behavior with juveniles. The trial court ordered a pre-sentence investigation report.

On April 9, 2010, defendant filed a motion for new trial alleging that the trial court erred in denying his motion to quash and that the verdict was contrary to the law and evidence. He also filed a motion for post-verdict judgment of acquittal, a motion to depart from the mandatory minimum sentence, and a motion in arrest of judgment.

On April 13, 2010, defendant appeared for sentencing. The trial court first addressed defendant’s motion for post-verdict judgment of acquittal, rejecting the argument that defendant could only be found guilty of attempted computer-aided solicitation of a minor because he did not actually communicate with a minor. Specifically, the trial court held that the statute for computer-aided solicitation of a minor defined the offense to include situations where the offender contacted a “person reasonably believed to have not yet attained the age of 18 ...”

The trial court also denied defendant’s motion in arrest of judgment, again rejecting both the argument that the statutes were unconstitutionally vague and that the statute for computer-aided solicitation of a minor violated defendant’s due process rights by preventing him from presenting a defense based on consent (referring to the undercover police officer’s consent to the communication). The trial court denied defendant’s motion for new trial, finding no new evidence requiring that a new trial be granted.

The trial court also denied defendant’s motion to depart from the mandatory minimum sentence on the counts of computer-aided solicitation |6of a minor for sexual purposes, finding that defendant’s conduct was precisely the type the legislature intended to punish by at least two years of imprisonment.

After acknowledging that it had considered defendant’s pre-sentence investigation report, character letters submitted by his friends and family, and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the trial court sentenced defendant. For each of the four counts of computer-aided solicitation of a minor, the trial court imposed a sentence of four years at hard labor without the benefit of parole, probation or suspension of sentence, with the sentences to run concurrent. For each of the two counts of indecent behavior with juveniles, the trial court imposed a suspended sentence of four years at hard labor, to run concurrently with each other but to run consecutively with his sentences for computer-aided solicitation of a minor. After serving his four-year cumulative sentence for solicitation, defendant is to be placed on five years active probation. During that time he is prohibited from owning or possessing a computer. Defendant was also informed of the sex offender registry requirements in accordance with La. R.S. 15:541, et. seq.

On May 12, 2010, defendant filed a motion to reconsider sentence, urging that the sentences imposed for the four counts of computer-aided solicitation of a minor were excessive. On June 2, 2010, the trial court denied defendant’s motion. This appeal ensued.

Discussion

Sufficiency of Evidence/Denial of Motion for Motion for Post Verdict Judgment of Acquittal

Defendant contends that insufficient evidence existed to convict him of computer-aided solicitation of a minor and therefore the trial court erred in denying his motion for post-verdict judgment of acquittal. Specifically, defendant claims that there was no evidence that he was ever in the presence of the alleged minor or that he attempted to set up a meeting with the minor.

According to the state sufficient evidence existed to convict defendant under La. R.S. 14:81.3; however, the this court has held that Louisiana’s attempt statute rejects factual impossibility as a defense because “it sháll be immaterial whether, under the circumstances, [a defendant] would have actually accomplished his purpose.” State v. Prine, 44,229 (La.App.2d 17Cir.05/20/09), 13 So.3d 758, writ denied, 09-1361 (La.02/05/10), 27 So.3d 298. See also State v. Thurston, 04-937 (La.App. 5th Cir.03/01/05), 900 So.2d 846, writs denied, 05-1332, 05-1342 (La.01/09/06), 918 So.2d 1040, 1041 (in which the Fifth Circuit held that the fact that the victim was fictitious was not fatal to a charge of attempted aggravated rape). La. R.S. 14:81.3 was enacted after State v. Thurston, supra, and specifically provides that a fictitious victim is not a defense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020.

La. R.S. 14:81.3, in 2007, defined computer-aided solicitation of a minor as follows:

(A) Computer-aided solicitation of a minor is committed when a person eighteen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or the person reasonably believed to have not yet attained the age of eighteen.

The legislature also defined the meaning of the terms “electronic textual communication” and “sexual conduct” in La. R.S. 14:81.3(D) as follows:

(1) “Electronic textual communication” means a textual communication made through the use of a computer on-line | ^service, Internet service, or any other means of electronic communication, including, but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service.
(2) “Sexual conduct” means actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd exhibition of the genitals, or any lewd or lascivious act.

The Third Circuit Court of Appeal has thoroughly addressed the proof required to convict a person under La. R.S. 14:81.3 in State v. Suire, 09-150 (La.App. 3d Cir.10/07/09), 19 So.3d 640. In State v. Suire, supra, the defendant claimed that insufficient evidence existed to convict him because he did not engage in sexual conduct in the presence of a purported 15-year-old (although he admitted that he masturbated in front of his webcam when the alleged child could have been watching). The defendant contended that the word “presence” should be strictly construed to require the physical presence of the other person.

The Third Circuit rejected the defendant’s argument. In doing so, the court held that a plain reading of La. R.S. 14:81.3 reveals two situations in which a person could be in violation of the statute. The first such scenario, or prong, addresses the perpetrator’s communication that intends to persuade, induce, entice or coerce the person to engage or participate in sexual conduct. The second scenario envisions the perpetrator’s communication with the intent to engage or participate in sexual conduct in the presence of the young victim. In both cases, it is the communication and intent, not the end-resulting contact, that the statute addresses.

Given the foregoing, the court in State v. Suire, supra, found that the defendant’s communications fell under the first prong because they were intended to persuade the purported 15-year-old to engage in “sexual conduct” as broadly defined by La. R.S. 14:81.3. Specifically, when the defendant sent textual communication with the intention of enticing the alleged child to masturbate, an activity undoubtedly falling into the category of “sexual conduct,” he violated the first prong. Additionally, defendant’s comments that he would be gentle in taking the girl’s virginity constituted communication to induce or entice the alleged child to engage in a “lewd or lascivious act,” which also fell within the category of “sexual conduct” as ^defined under La. R.S. 14:81.3(D)(2). Furthermore, conversations regarding the defendant’s past sexual history, the size of his penis and the purported 15-year-old’s experience with phone sex were all topics of a lewd and lascivious nature and provided sufficient evidence that the defendant violated La. R.S. 14:81.3 by engaging in communication defined as such in the first prong of the statute.

The Third Circuit, notwithstanding the fact that it had already found sufficient evidence for a conviction, also addressed the defendant’s claim that insufficient evidence existed to convict him of computer-aided solicitation of a minor because he was never in the “presence” of the purported 15-year-old. Considering the legislature’s purpose in enacting La. R.S. 14:81.3, and the “inherent nature of law policing computer-aided solicitation,” the court in State v. Suire, supra, found that it was evident that the requirement of “presence” in the statute did not limit its enforcement to only those acts committed in the actual physical presence or immediate vicinity of the victim. Instead, the legislature intended to establish and define a completed crime, as opposed to an attempted one, upon the initiation, solicitation, or incitement by the perpetrator. “Presence” has no bearing on the offending act, which is communicating through the use of electronic textual communication with the intent to engage or participate in sexual conduct. “Presence” merely describes the eventual hoped-for conduct. It is not the sexual conduct itself to which this statute applies, noted the Third Circuit in State v. Suire, supra.

The trial court did not err in denying defendant’s motion for post-verdict judgment of acquittal. There was sufficient evidence to convict him of four counts of computer-aided solicitation of a minor. As noted by the court in State v. Suire, supra, La. R.S. 14:81.3 contemplates two scenarios in which a person can commit computer-aided solicitation of a minor. Defendant’s electronic textual communications with a person he believed to be a 12-year-old female provide sufficient evidence to convict him under either prong.

Defendant, via electronic textual communication, told “Liltaraleel2” on five separate occasions that she should masturbate. The detailed, explicit conversations provided sufficient evidence that defendant violated La. R.S. 11014:81.3 when he “knowingly contacted] or communieat[ed], through the use of electronic textual communication, with a person ... .reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct ...” La. R.S. 14:81.3.

Defendant’s claim that insufficient evidence existed to convict him of computer-aided solicitation because he was never in the presence of “Liltaraleel2” is unconvincing for several reasons. First, as discussed above, sufficient evidence exists to convict defendant under the first prong of La. R.S. 14:81.3. Furthermore, as explained in State v. Suire, supra, the second part of La. R.S. 14:81.3 does not require “presence” in the sense of actual physical presence with the real or purported minor, but merely the eventual hoped-for contact. Defendant’s communication with “Liltara-leel2” wherein he asked if she (and her 13-year-old cousin) would meet him to go to a hotel for sex and if the two young girls would perform oral sex on him provides sufficient evidence that he contacted her with the intent to participate in sexual conduct in her presence. See State v. Suire, supra.

This assignment is without merit.

Denial of Motion to Quash/Motion in Arrest of Judgment

According to defendant, the trial court erred in denying the Motion to Quash and Motion in Arrest of Judgment which raised issues concerning the validity and constitutionality of the statute of computer-aided solicitation of a minor, R.S. 14:81.3, and the statute of indecent behavior with juveniles, R.S. 14:81(A)(2), as applied to the facts of this case as they denied him the right to free speech and the right to present a defense.

(1) Defendant first argues that La. R.S. 14:81(A)(2) is unconstitutional under the First Amendment.

La. R.S. 14:81(A)(2), at the time of defendant’s conduct in 2007, provided, in pertinent part that:

(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:
|n(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.

Statutes are generally presumed to be constitutional and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Hatton, 07-2377 (La.07/01/08), 985 So.2d 709; State v. Fleury, 01-0871 (La.10/16/01), 799 So.2d 468; State v. Brenner, 486 So.2d 101 (La.1986).

The right to free speech is subject to reasonable legislative regulation. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); U.S. v. Williams, 553 U.S. 285,128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); City of New Orleans v. Kiefer, 246 La. 305, 164 So.2d 336 (La. 1964). The United States Supreme Court has “long held that obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment.” U.S. v. Williams, supra; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). However, criminal responsibility may not be imposed in cases involving obscene speech without some element of scienter on the part of the defendant. Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); State v. Cinel, 94-0942 (La.l1/30/94), 646 So.2d 309, cert. denied, 516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995).

The Supreme Court stated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 419 (1973), that “the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” Moreover, the Supreme Court has held that it is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ New York v. Ferber, supra; State v. Penton, 08-0551 (La.App. 1st Cir.10/31/08), 998 So.2d 184. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. Id.

A statute is facially invalid on First Amendment grounds if it prohibits a substantial amount of protected speech. U.S. v. Williams, supra; Ashcroft v. The Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). This doctrine seeks to strike a balance between competing social costs. Id.; Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). In order to maintain an appropriate balance, the statute’s over-breadth must be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitímate sweep. Id.; Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Invalidation for over-breadth is “strong medicine” that is not to be “casually employed.” Id.; Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). The first step in over-breadth analysis is to construe the challenged statute to determine what speech is restricted. Id. The second step is to ascertain whether the challenged statute criminalizes a substantial amount of protected activity. Id.

The Louisiana Supreme Court has repeatedly rejected the argument that La. R.S. 14:81(A)(1) is unconstitutional on overbreadth grounds. See State v. Interiano, 03-1760 (La.02/13/04), 868 So.2d 9; State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (La.1950). Specifically, the court has held that La. R.S. 14:81(A), by using the terms “lewd and lascivious,” and “with the intention of arousing or gratifying the sexual desires of either person,” provided sufficient notice to a person as to what behavior is criminalized under the statute. In State v. Holstead, supra, the court explained that the word “lewd” means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner. The word “lascivious” means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations. State v. Holstead, supra.

| ^Defendant relies upon State v. Cinel supra, in support of his claim that La. R.S. 14:81(A)(2) is unconstitutional on First Amendment grounds. In State v. Cinel, the state appealed a trial court’s ruling declaring La. R.S. 14:81.1 (pornography involving juveniles) to be unconstitutional. The relevant portions of the statute in question under analysis by the court in State v. Cinel are as follows:

La. R.S. 14:81.1:

(A) Pornography involving juveniles is any of the following:
(3) The intentional possession, sale, distribution, or possession with intent to distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.
(D) Lack of knowledge of the juvenile’s age shall not be a defense.

The court found that section (D) unconstitutionally removed the state’s burden to prove that a defendant had the requisite intent to possess materials depicting sexual performances of children under the age of 17, as required by United States Supreme Court jurisprudence. Id., citing New York v. Ferber, supra; Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

The trial court did not err in denying defendant’s motion to quash. La. R.S. 14:81 (A)(2) criminalizes the transmission, “with the intention of arousing or gratifying the sexual desires of either person,” of “lewd” or “lascivious” materials to persons reasonably believed to be under the age of seventeen years old and two years younger than the offender. The last part of section (A)(2) specifies that “[i]t shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.” Unlike the provision in State v. Cinel, supra, La. R.S. 14:81(A)(2) does not abolish the state’s burden of proving that the offender intended to commit every element of the crime. To the contrary, in order to convict a person under La. R.S. 14:81(A)(2), the state must prove that the offender intended on sending obscene material to a juvenile under the age of seventeen, through electronic or textual transmission, in order to gratify his, or the child’s, sexual desires. The last provision of section (A)(2) simply provides |uthat incidental transmission to a person over the age of seventeen is not a defense.

Furthermore, the statute does not prohibit a substantial amount of protected speech. Although La. R.S. 14:81(A)(2) allows prosecution for the transmission of materials meant to be transmitted to a minor, but actually sent to a person seventeen years or older, the statute regulates obscene materials — an unprotected category of speech. See Miller v. California, supra. Moreover, the state has a legitimate interest in preventing the dissemination of such materials to unwilling recipients or juveniles. Id.

(2) Defendant also urges that La. R.S. 14:81.3 is unconstitutional as it impinges upon his First Amendment rights.

Defendant contends that the district court erred in denying his motion to quash and motion in arrest of judgment because La. R.S. 14:81.8 (computer-aided solicitation of a minor) unconstitutionally infringes on his right of free speech. Specifically, defendant alleges that the Child Pornography Prevention Act (CPPA) of 1996, a federal statute that was declared unconstitutional for violating free speech rights in Ashcroft v. The Free Speech Coalition, supra, is analogous to La. R.S. 14:81.8 and therefore the Louisiana statute is unconstitutional. Defendant points out the CPPA criminalized the production of “virtual minors” for use in child pornography, while La. R.S. 14:81.3 criminalizes speech with “virtual minors” for sex solicitation. Furthermore, like the CPPA, La. R.S. 14:81.3 is overly broad because it prohibits speech which does not involve minors, and hence prohibits otherwise protected speech.

The state points out that the case of State v. Fenton, 08-0551 (La.App. 1st Cir.10/31/08), 998 So.2d 184, wherein the First Circuit Court of Appeal held that La. R.S. 14:81.3 did not violate the First Amendment, is persuasive on the issue and requires a finding of constitutionality. Specifically, the state notes the appeal court’s holding that because the statute serves a compelling state interest, namely, the prevention of sexual exploitation and abuse of children, it survives First Amendment scrutiny.

|1BAs it read in 2007, La. R.S. 14:81.3 provided in pertinent part:

Computer-aided solicitation of a minor is committed when a person eighteen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or the person reasonably believed to have not yet attained the age of eighteen.

Obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment. U.S. v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Offers to engage in illegal transactions are categorically excluded from First Amendment protection. U.S. v. Williams, supra; Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949); State v. Penton, supra.

A state’s interest in safeguarding the physical and psychological well-being of a minor is compelling. New York v. Ferber, supra; State v. Penton, supra. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. Id.

Louisiana statutory law prohibits the solicitation of a child for sex. See La. R.S. 14:27 and La. R.S. 14:42(A)(4) (attempted aggravated rape of a child under the age of 13); La. R.S. 14:27 and La. R.S. 14:80(A)(1) (attempted felony carnal knowledge of a juvenile; child 13 years of age, but less than 17 years of age); La. R.S. 14:27 and La. R.S. 14:80.1 (attempted 1j (¡misdemeanor carnal knowledge of a juvenile; child 15 years of age or older, but less than 17).

The First Circuit rejected the argument that La. R.S. 14:81.3 is unconstitutional on overbreadth grounds. See State v. Penton, supra. In upholding La. R.S. 14:81.3 as constitutionally sound, the court found that the statute advanced a compelling state interest and was narrowly tailored to prohibit conduct and not speech. The court further noted that it is illegal to solicit a child for sex and that such conduct “is not suddenly shielded from criminal liability when the pedophile hides behind a computer screen.” The court additionally held that offers to engage in illegal transactions were excluded from First Amendment protection. State v. Penton, 998 So.2d at 186-187.

Defendant relies on Ashcroft v. The Free Speech Coalition, supra, wherein the United States Supreme Court found certain portions (not the entirety) of the federal Child Pornography Prevention Act (CPPA) to unconstitutionally restrict free speech. The CPPA expanded the federal government’s prohibition on child pornography by including not only pornographic images made using real children, but also images depicting children, including virtual images, appearing to show children engaged in sexually explicit conduct.

Central to the court’s decision, however, was the fact that portions of the CPPA did not seek to regulate an unprotected category of speech. Specifically, the material prohibited by the CPPA did not comprise child pornography under the New York v. Ferber, supra, definition nor did the images constitute “obscene” materials as defined by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Therefore, because the speech regulated under the CPPA did not fit into a defined category of unprotected speech, by default it was considered to be constitutionally protected speech. Thus, the government had the burden of proving a compelling state interest in so regulating the protected speech and had to demonstrate that its method for doing so was narrowly tailored to target the harmful speech, and the government failed to do so. Id.

|17In the instant case, the trial court did not err in denying defendant’s motion to quash because defendant failed to meet his burden of proving that La. R.S. 14:81.3 unconstitutionally denied him his right to free speech. La. R.S. 14:81.3 seeks to prohibit the online solicitation of minors (or individuals reasonably believed to be minors) to engage in sexual conduct with the offender, or to be present while the offender engages in sexual conduct. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. U.S. v. Williams, supra. Therefore, Louisiana may, and has opted to, prohibit the solicitation of minors in numerous statutory provisions.

Furthermore, in the event the statute unintentionally infringes on protected speech, the state has a legitimate reason to do so. It is without question that the government has a compelling interest in protecting its children from sexual exploitation and abuse. New York v. Ferber, supra; State v. Penton, supra. La. R.S. 14:81.3 is narrowly tailored to solely prohibit solicitation and does not appear to regulate any protected speech. To be convicted under the statute, the offender must attempt to “persuade, induce, entice, or coerce” the minor “to engage or participate in sexual conduct” or “engage or participate in sexual conduct in the presence” of the minor (or person reasonably believed to be a minor). See La. R.S. 14:81.3.

Defendant’s argument that Ashcroft v. The Free Speech Coalition, supra, is analogous to the instant case is misplaced. La. R.S. 14:81.3 is distinguishable from the CPPA in one very important respect — it does not seek to prohibit a new form of child pornography, but instead directs its aim at a category of unprotected speech— the solicitation of minors for sex. This assignment of error is -without merit.

(3) La. R.S. 14:81(A)(2) and 14:813 are unconstitutional because they violate defendant’s due process right to present a defense.

According to defendant, both of these statutory provisions deny him the opportunity to raise as a defense the fact that the person he was communicating with was actually a law enforcement agent acting in an official capacity who consented to the communication, not a person under the age of seventeen.

| iijVe note first that defendant did not raise his claim that La. R.S. 14:81(A)(2) denied him due process by prohibiting him from raising as a defense the fact that he was actually communicating with an undercover officer, not a minor, in either his motion to quash or motion in arrest of judgment. Therefore, this specific argument will not be addressed on appeal. See State v. Hatton, 07-2377 (La.07/01/08), 985 So.2d 709; State v. Schoening, 00-0903 (La.10/17/00), 770 So.2d 762; Williams v. State Dept. of Health and Hospitals, 95-0713 (La.01/26/96), 671 So.2d 899.

La. R.S. 14:81.3(0(3), in 2007, provided in pertinent part:

It is not a defense to a prosecution brought pursuant to this Section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is actually a law enforcement officer or peace officer acting in his official capacity.

A defendant has the right to present any and all evidence bearing on his innocence unless prohibited by our federal and state constitutions, by law, or by jurisprudence. State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 958 So.2d 890, writ denied, 07-0805 (La.03/28/08), 978 So.2d 297; State v. Harrison, 560 So.2d 450 (La.App. 2d Cir.1990), writ denied, State ex rel. Harrison v. Whitley; 619 So.2d 569 (La.1993), State v. Patch, 470 So.2d 585 (La.App. 1st Cir.1985), writ denied, 475 So.2d 358 (La.1985).

The trial court did not err in denying defendant’s motion to quash on the issue that defendant was unconstitutionally denied his right to present a defense by La. R.S. 14:81.3(C). As noted above, a defendant has a constitutional right to present a defense, unless he is so prevented by our federal and state constitutions, by law, or by jurisprudence. Because the statute specifically prohibits the very defense defendant attempted to raise, he was not denied due process. State v. Lathan, supra; State v. Harrison, supra.

Therefore, this assignment is without merit.

Denial of Motion to Depart from Statutory Minimum Sentence

119Pefendant next contends that the trial court erred in denying his motion to depart from the statutory mandatory minimum two years at hard labor on the four counts of computer-aided solicitation of a minor. In support of his argument, defendant claims that the information contained in his pre-sentence investigation report and the character letters from his friends, family, and coworkers provided sufficient support to demonstrate that he is a victim of the legislature’s failure to assign a sentence that is meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case (the fact that he was actually talking to a law enforcement officer and not a minor) and his criminal history.

On the other hand, the state contends that the trial court did not err in denying defendant’s motion; the court considered the circumstances of the case and the legislature’s intent to punish the very behavior engaged in by defendant.

A sentence violates La. Const. Art. 1 § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless imposition of pain and suffering. State v. Anderson, 36,969 (La.App.2d Cir.04/09/03), 842 So.2d 1222. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id. A trial court has broad discretion to sentence within statutory limits. Id. Absent a showing of a manifest abuse of discretion, a reviewing court may not set aside a sentence. Id.

It is well established that the determination and definition of acts which are punishable as crimes is a purely legislative function. Id. It is the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. Courts are charged with applying these punishments unless they are found to be unconstitutional. Id.

The trial court did not err in denying defendant’s motion to depart from the minimum mandatory sentence under La. R.S. 14:81.3. The court, in its discretion, found that defendant’s behavior was the type the legislature intended to punish in enacting La. R.S. 14:81.3. Defendant fails to demonstrate how the court’s finding constituted a manifest abuse of discretion.

19nExcessive Sentence

Defendant, relying on his character and life history, alleges that the four-year hard labor sentence imposed for each of the four counts of computer-aided solicitation of a minor was excessive.

The state claims that the sentence was not excessive. Specifically, the state points to the fact that defendant’s sentence of four years on each count, which are to run concurrently, was midrange for the statute of conviction. The state also notes that defendant’s four-year sentence for each of the two counts of indecent behavior with juveniles was suspended. The state cites several cases involving convictions for computer-aided solicitation of a minor wherein the defendant received a harsher sentence than defendant.

La. R.S. 14:81.3(B)(1), at the time of the offenses, provided:

Whoever violates the provisions of this Section shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.

The sentences imposed are not excessive. First, the record reveals that the trial court considered the factors set forth in La. C. Cr. P. art. 894.1, the pre-sentence investigation report, character letters sent from defendant’s friends and family and the statement defendant made at the sentencing hearing. The trial court noted that it had taken several things into account, including the fact that defendant had never been arrested or convicted of a crime, his positive work history, his education and that he never actually attempted to meet the purported 12-year-old. However, the trial court also found aggravating factors, such as the fact that defendant had taught high school for 20 years, believed that the purported victim was only 12 years old, and contacted the purported 12-year-old on several occasions. Furthermore, the language used by defendant in his communication with the alleged 12-year-old was totally inappropriate and very sexually explicit.

The sentencing range for computer-aided solicitation of a minor is at least two years and no more than ten years, without the benefit of parole, probation or suspension of sentence. Defendant was sentenced to four years at hard labor, to be served without the benefit of parole, probation or suspension of sentence, on each count, to be served concurrently, for a total sentence of four years. Because of the circumstances of the case, the |¾1 extreme youth of the purported victim, and the nature of the crime, this sentence, which is on the lower end of the sentencing range, is not excessive.

This assignment of error therefore lacks merit.

Conclusion

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The state withdrew a charge for obscenity.

        . La. R.S. 14:81.3 has subsequently been amended several times. The only changes made to the cited portion were modifications of the age requirements and they are not relevant to the First Amendment issue.

      . La. R.S. 14:81(A)(2) has since been amended to reflect technological advances in electronic communication and the amendments are not relevant to this discussion.

      . There have been no Louisiana cases directly discussing the constitutionality of La.R.S. 14:81(A)(2).

      . La. R.S. 14:81.3 has since been amended several times. The only changes made to the cited portion were modifications of the age requirements and are not relevant to this discussion.

      . Part of the reason the material did not constitute child pornography, as defined by the Supreme Court in New York v. Ferber, was because the images to be regulated were not of real children.

      . La.R.S. 14:81.3(C) has since been amended. For purposes of the instant discussion, we note that part (C) of the current version of the statute is substantially similar to the 2007 version and reads, "[i]t shall not constitute a defense to a prosecution brought pursuant to this Section that the person reasonably believed to be under the age of seventeen is actually a law enforcement officer.”