author: EZELL, Judge.

text:
    STATE of Louisiana v. Aaron W. ARDOIN.
    No. KA 10-1018.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Aaron W. Ardoin.
    Trent Brignac, District Attorney, Thirteenth Judicial District Court, Julhelene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

hOn May 6, 2008, the Defendant, Aaron W. Ardoin, was indicted by a grand jury with aggravated rape, a violation of La. R.S. 14:42; indecent behavior with a juvenile, a violation of La.R.S. 14:81(A)(1); and oral sexual battery, a violation of La.R.S. 14:43.3(A)(2). Following a jury trial, on May 27, 2010, the Defendant was found guilty as charged on all counts. The Defendant was sentenced on July 15, 2010, to life imprisonment at hard labor for aggravated rape and to ten years at hard labor for both oral sexual battery and indecent behavior with a juvenile, to run concurrently with each other and with the life sentence. The Defendant did not file a motion to reconsider sentences.

The Defendant is now before this court on appeal, asserting that the trial court erred in denying his motion to suppress three statements and that his enhanced sentence for indecent behavior with a juvenile was in violation of the Sixth Amendment of the United States Constitution.

FACTS

Over a period of approximately nine months, the Defendant performed or forced the victim to perform various sexual acts, including oral sex and sexual intercourse. At the time the offenses were committed, the Defendant was forty-three, years old, and the Victim was nine years old.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant contends that the trial court erred in denying his motion to suppress three statements given by the Defendant to police over a course of two days. The Defendant maintains that his statements were not freely and voluntarily given because the police used improper questioning techniques and failed during the first two statements to assure that he understood what rights he 12was waiving. The Defendant also complains that the trial court improperly placed the burden upon the Defendant to prove that his statements were not freely and voluntarily made after full advisement and waiver of his constitutional rights. As such, the Defendant urges this court to conduct a de novo review applying the correct standard.

Louisiana Code of Criminal Procedure Article 703 reads in pertinent part:

A. A defendant adversely affected may, move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

As required by La.Code Crim.P. art. 703, the Defendant filed a motion to suppress on July 30, 2009, arguing that statements which may incriminate him “were the result of persistent and repeated interrogations by numerous skillful law enforcement officers and were elicited in the absence of counsel and without an intelligent or knowing waiver of counsel.” Further, the Defendant maintained that “ [psychological ploys, threats and promises, fatigue and physical violence combined during many hours of questioning to overcome Defendant’s will and rendered any admission involuntary and coerced in violation of the Fifth and Fourteenth Amendments to the United States Constitution.” Because the issues of voluntariness and the validity of waiver of counsel would be determined based on the credibility of police officers rather than the Defendant, the Defendant requested that a special jury be empaneled prior to trial to determine if he understood his right to counsel and |3made a knowing and intelligent waiver and if the statements were induced by physical violence, threats, or promises.

A hearing on the motion was held on May 13, 2010, and three statements and two Miranda waiver forms were introduced into evidence by the parties. Following the testimony of Chief Gregory Du-puis and Detective Todd Ortis of the Mamou Police Department, the officers who participated in taking the Defendant’s statements, the trial court found that the Defendant failed to carry his burden of proof and denied his motion to suppress the statements.

Burden of Proof

The Defendant asserts that his motion sufficiently gave the State notice of the alleged bases for the suppression of his three statements. The Defendant complains, however, that the trial court erred in requiring him to prove the statements were not voluntarily made. The Defendant maintains that the State, not the Defendant, was required to prove that the statements were freely and voluntarily made after full advisement and waiver of rights. The Defendant concludes that the trial court improperly shifted the burden of proof and asks this court to conduct a de novo review, applying the correct standard.

The State concedes that La.Code Crim.P. art. 703(D) places the burden of proof on the State to prove the admissibility of a purported confession or statement made by a defendant. The State maintains, however, that La.Code Crim.P. art. 703(D) also places a burden of proof on the Defendant to prove the ground of his motion. As such, the State contends that the trial court correctly required the Defendant to present his motion rather than requiring the State to establish that the statements were admissible.

Lin State v. Rodrigue, 409 So.2d 556, 561 (La.1982), the supreme court explained:

The general rule is that, on trial of a motion to suppress, the burden of proof is on the defendant to prove the grounds of his motion. La.C.Cr.P. art. 703(D). One exception to the rule is that the State has the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. La.C.Cr.P. art. 703(D); La.R.S. 15:451; State v. Glover, 343 So.2d 118 (La.1977); State v. Johnson, 363 So.2d 684 (La.1978); State v. Bouffanie, 364 So.2d 971 (La.1978); State v. Volk, 369 So.2d 128 (La.1979); State v. Jones, 376 So.2d 125 (La.1979).

Additionally, “[a]t this judge-hearing, the state must prove voluntariness beyond a reasonable doubt, and the defense may cross-examine the state’s witnesses and put on its own case. See Comment, Confessions in Louisiana Law, 14 La.L.Rev. 642, 650-652.” State v. Lovett, 345 So.2d 1139, 1142 (La.1977).

At the hearing, despite defense counsel’s assertion that the burden was on the State to show that the confession was voluntary and admissible pursuant to La.Code Crim.P. art. 703(D), the trial court stated, “Since this is your motion, I think you need to call your first witness.” Defense counsel proceeded with the presentation of the Defendant’s case, calling the officers who participated in taking the statements to testify. When the Defendant rested his case, the trial court concluded that he “failed to carry the burden.” Considering same, we find that the trial court incorrectly placed the burden on the Defendant to show that his statements were not voluntary rather than requiring the State to show that they were voluntary.

On cross examination, however, we note that the State presented evidence to prove that the Defendant’s three statements were voluntary and admissible, making reference to the respective statements and introducing them into evidence. Although the trial court placed the burden on the Defendant, the State, nonetheless, complied | Bwith La.Code Crim.P. art. 703(D) and presented its case to establish that the Defendant’s statements were voluntary and admissible.

Waiver of Rights

Defendant’s First Statement

Chief Dupuis and Detective Ortis testified that the Defendant’s first recorded statement was taken on February 7, 2008. The Defendant did not sign a waiver of rights form at the time of this statement. Chief Dupuis stated that the Defendant, was advised of his rights on February 3, 2008, four days earlier, when he was initially booked, and he signed a waiver of rights form. Chief Dupuis observed that the waiver was signed in two places indicating, one, that he was read rights, and two, that he understood his rights, was willing to answer questions without an attorney present, and that he had not been threatened nor had promises been made to induce him to give up his rights. The waiver was introduced by the Defendant. Lastly, Chief Dupuis indicated that the Defendant did not ask to stop questioning at any time.

Detective Ortis testified that he checked the Defendant’s file to make sure a waiver of rights form was in the file. Detective Ortis also confirmed that the Defendant understood his rights before taking his statement. According to Detective Ortis, they were probably interviewing witnesses and collecting evidence during the four days that elapsed from the time the Defendant signed the waiver and when his first statement was taken to determine what questions to ask the Defendant. At the time of the Defendant’s statement, there was no doubt in Detective Ortis’ mind that the Defendant understood his rights.

At trial, Officer Christopher Godeaux of the Mamou Police Department testified that the waiver upon which Chief Dupuis and Detective Ortis relied was obtained by him after the Defendant was detained and transported to the police | ^department. According to Officer Godeaux, he reviewed each of the five enumerated rights with the Defendant and confirmed his understanding of same. Also, on the waiver form, the Defendant indicated that he understood his rights and was willing to answer questions without an attorney present. He also confirmed that he had not been threatened or promised anything to answer questions or give up his rights. The Defendant then signed the waiver form.

The transcribed statement was submitted into evidence by the State. The recorded statement was conducted by Detective Ortis and Chief Dupuis. Detective Ortis and Chief Dupuis began at 2:10 p.m. and concluded at 2:38 p.m. At the beginning of the statement, Detective Ortis and Chief Dupuis confirmed that the Defendant had been read his rights at the time he was booked and understood same:

TODD: O.K. WHENEVER THEY PICKED YOU UP, THEY ADVISED YOU OF YOUR RIGHTS? THEY READ YOU YOUR RIGHTS?
AARON: YEA BECAUSE STEVEN CAME PICK ME UP FROM RED-DELL AND BROUGHT ME TO THE HOUSE. I STAYED OUTSIDE AND THAT UH.
TODD: BUT WHEN THE POLICE CAME TO TALK TO YOU, WHEN THE POLICE ARRESTED YOU, THEY READ YOU YOUR RIGHTS?
CHIEF DUPUIS: WHEN THEY BOOKED YOU IN THAT BOOKING ROOM, WHEN THEY.
TODD: THEY TOLD YOU THAT YOU HAD THE RIGHT TO REMAIN SILENT?
AARON: OH YEA. HE TALKED TO ME IN THE CAR AND I TOLD HIM, I HAD TO TELL HIM THAT THEY BROUGHT ME IN AND HE DID.
CHIEF: BUT DO YOU KNOW, THE POINT IS, HE READ YOUR RIGHTS TO YOU, DO YOU KNOW YOUR RIGHTS, OR YOU NEED U.S. TO READ THEM TO YOU AGAIN?
AARON: YES, YES, NO, I UNDERSTAND.
JjCHIEF: AND YOU UNDERSTAND THEM?
TODD: O.K.

Defendant’s Second Statement

A second recorded statement was taken from the Defendant the following morning, February 8, 2008. At the hearing, Chief Dupuis and Detective Ortis testified that the Defendant was pulled out and questioned that morning because he was being transferred to Ville Platte. They thought it would be the last opportunity they would have to talk to him because he would no longer be housed in their facility. According to Chief Dupuis, he asked the Defendant if he wanted to talk to them, and the Defendant responded affirmatively. Chief Dupuis confirmed that the Defendant understood his rights prior to giving the statement. Also, Detective Ortis referred the Defendant to the waiver of rights form he previously signed on February 8, 2008. Again, Detective Ortis testified that he had no doubt that the Defendant understood his rights when they took his statement.

Chief Dupuis’ testimony at trial differed from his hearing testimony with regard to who initiated the statement. At trial, Chief Dupuis testified as follows:

Q. Why did you go back to take another statement, did the defendant want to give a statement?
A. He requested from a trustee, if I remember right, to talk to us before we would transfer, we were fixing to transfer him to Ville Platte because it was a felony charge we transfer them here.
Q. But he denied everything and then the next time he initiated it through a Trustee?
A. Yes Ma'am, and also the fact that we were transporting him to Ville Platte we figured it was a good chance before he left the office to question him again, but he had requested to talk to us through a trustee.

|sThe transcribed statement introduced into evidence by the State reflects that the questioning began at 8:13 a.m., before the Defendant was transported to Ville Platte. The Defendant did not sign a waiver of his rights form associated with this statement. Chief Dupuis testified, however, he was certain that the Defendant’s Miranda rights were read to him prior to questioning. Detective Ortis asked the Defendant if he understood his rights as follows:

TODD: O.K. AND UH, YESTERDAY WE HAD AN OPPORTUNITY TO TALK TO YOU. RIGHT?
AARON: YES SIR.
TODD: AND WE ASKED YOU A COUPLE OF QUESTIONS AND YOU WEREN’T QUITE SURE OR DIDN’T HAVE AN ANSWER FOR QUITE A FEW OF THEM YESTERDAY, RIGHT?
AARON: NAW, I REALLY, THAT’S NOT EXACTLY, I HAD TO THINK ABOUT IT, BUT LAST NIGHT I SAT THERE AND THOUGHT ABOUT IT AND IT COMES UP WITH COMMON SENSE.
TODD: SO, UH, YOU WANT TO TALK TO U.S. AGAIN THIS MORNING?
AARON: YEA.
TODD: AND I’M GONNA ASK YOU AGAIN, YOU UNDERSTAND YOUR RIGHTS, RIGHT?
AARON: YES SIR.

On appeal, the Defendant complains that his first statement was not taken until February 7, 2008, several days after signing a waiver on February 3, 2008. The Defendant maintains that this fact alone indicates that he was not executing the waiver to permit questioning by law enforcement but, instead, was completing necessary paperwork for booking purposes and remained silent. Further, the Defendant contends that his statement was not spontaneously given, but was initiated by Detective Ortis’ interrogation.

lain support of his argument, the Defendant refers to State v. Fowlkes, 25,870 (La.App. 2 Cir. 3/30/94), 634 So.2d 953, wherein the defendant was advised of his Miranda rights upon his arrest and again while en route to the police station, remaining silent on both occasions. During booking at the police station, the defendant, charged with simple burglary, was asked how he had gained entry. The defendant responded that he had used his hands. After this inculpatory statement, the defendant was informed of his Miranda rights a third time and was asked to sign a waiver. The defendant refused to sign the waiver. On appeal, the defendant argued that his silence after he was Mir-andized showed that he did not want to give a statement to police, and thus, the officer should not have asked him any questions. In analyzing the issue, the court stated:

When an accused has been questioned in a custodial environment, the prosecution is required to establish that his interrogation followed the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Simmons, 443 So.2d 512 (La.1983).
Here, after the defendant’s arrest and while he was being booked at the police station, the arresting officer asked defendant how he had entered the market. This constitutes custodial interrogation because it was questioning initiated by a law enforcement officer subsequent to the arrest or deprivation of the defendant’s freedom of action. Miranda, supra. When a statement made during custodial interrogation is sought to be introduced into evidence, the state bears the heavy burden of showing that the defendant knowingly and intelligently waived his privilege against self-incrimination and the right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Brown, 384 So.2d 425 (La.1980).
Granted, the waiver of Miranda rights need not be explicit and may be inferred from the circumstances surrounding the statement. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Brown, supra. However, a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that an inculpatory statement was eventually obtained. Miranda, supra.

Id. at 957. The court concluded that the defendant’s subsequent incriminating statement was not spontaneously given because he had chosen to remain silent on two Imoccasions after being read his Miranda rights. The court found that the statement was the result of questioning by the officer and was not given spontaneously. Lastly, the court ruled that the State failed to meet its heavy burden of showing the defendant either said or did something to indicate a waiver.

We find that the instant case is distinguishable from Fowlkes. Although the Defendant remained silent after he was Mirandized during booking, he signed a waiver of those rights. Also, there is no evidence to suggest that he was questioned soon after he was Mirandized and signed the waiver, yet opted to remain silent. The record indicates that he simply was not questioned at that time and that officers likely waited to question him after an investigation into the allegations. According to Detective Ortis and Chief Dupuis, before the Defendant was questioned, he was asked if he had been advised of his rights at the time he was booked and, specifically, if he had been told he had the right to remain silent. Further, Chief Du-puis asked the Defendant if they needed to read his rights to him again. The Defendant confirmed that they did not need to read his rights again and that he understood them.

The Defendant also contends that the second statement was tainted by the first statement and that the State failed to establish that the Defendant initiated the second statement. Because we find that a valid waiver was obtained prior to the first statement, the second statement was not tainted by the first. With regard to the validity of the waiver prior to the second statement, we find, like the first statement, the ruling in Fowlkes to be inapplicable. Although the Defendant did not initiate the statement, both Chief Dupuis and Detective Ortis confirmed that the Defendant understood his rights prior to taking the Defendant’s statement.

| n Defendant’s Third Statement

The Defendant argues that his third statement was tainted by statements made to officers during his transport from Mamou to Ville Platte. The Defendant contends that Chief Dupuis relied upon information alleged to have been provided by the Defendant during his transport and without benefit of being Mirandized. The Defendant maintains that police cannot question first and then give the necessary warning before re-interrogation; to do so makes the warning ineffective. In support of his argument, the Defendant refers to Missouri v. Seibert, 542 U.S. 600, 601, 124 S.Ct. 2601, 2603, 159 L.Ed.2d 643 (2004), wherein the Supreme Court held, “[I]t is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content.”

The Defendant’s third recorded statement was taken on February 8, 2008, after he was transported to Ville Platte. At the suppression hearing, both Chief Dupuis and Detective Ortis testified that the statement was taken at the Defendant’s request. Chief Dupuis explained that following their arrival in Ville Platte earlier that morning, the Defendant told him that he wanted to talk to them again because there was something he needed to tell them. The Defendant asked if they would return to talk to him. Chief Dupuis told the Defendant they would come back after lunch, and per the Defendant’s request, Chief Dupuis and Detective Ortis returned to take the Defendant’s third statement around 1:00 p.m. Chief Dupuis denied using any coercion and maintained that the statement was initiated by the Defendant.

Chief Dupuis and Detective Ortis also testified that the Defendant was read his rights prior to taking the statement. To make sure he was thorough, Detective Or-tis stated that he checked off each right after he advised the Defendant of the respective right, and that he verbalized his understanding of same. Both Chief Du-puis and |12Petective Ortis witnessed the Defendant’s signature. At the time the statement began, Detective Ortis asked the Defendant again if he understood his rights.

At trial, Chief Dupuis testified as follows about his conversation with the Defendant following his transport from Mamou to Ville Platte:

Q. And on the way here, did he indicate anything to you and to Chief Ortis?
A. He did, on the way over here, just getting into Ville Platte he asked if he could talk to us when we got over here, and he started telling me things about the case, and I told him just hold up, when we get over there see [sic] if we can talk to you, and my office called me and we had to go back to town, and we ended up coming back later that afternoon.
Q. So, after giving a second voluntary statement in Mamou, on the way here he initiated that he wanted to give another statement again?
A. Correct
Q. Now, /all got here, I’m assuming it was still early in the morning?
A. Probably about 9:00 o’clock, maybe a little before that.
Q. And then /all went back to Mamou because /all didn’t have time to take the statement, but /all left him here?
A. Correct
Q. And then /all came back?
A. Right
Q. And do you recall coming back and being present when he completed another Miranda rights form?
A. Yes ma'am.
Q. And I’m showing you, it’s been marked as State Exhibit Two, is this your signature here?
A. Yes ma'am, as witness.
Q. So, you were a witness when Detective Todd Ortis went through this form with him again?
A. Right
hsQ. And again, /all went through each enumerated right, correct?
A. Correct
Q. And again, and this would have been at what, 1:10 that afternoon?
A. Right, 1:10.
Q. Tail asked, do you understand your rights and he said?
A. Yes
Q. Are you willing to answer any questions without an attorney, and he said?
A. Yes
Q. Have any threats or promises been made to you, or has any pressure of any kind been used to try and get you to answer questions or to give up any of your rights, and he answered?
A. No
Q. And then he again, the defendant, you saw him sign this again?
A. Yes ma'am.
Q. And again, you witnessed this along with Detective Ortis?
A. Right
Q. So, along with the initial Miranda right[s] form, explaining his rights to him and making sure that he understood it before statement number one and statement number two, /all did another Miranda right[s] sheet before /all began the third statement?
A. Correct
Q. So, if he wanted to change his mind before giving another statement that he voluntarily requested that morning he had what, four or five hours to think about that?
A. Yes ma'am.
Q. But when you got back here, he still wanted to give that statement?
A. Right
| mQ. And your transcript of the third statement indicates it began at 1:12 P.M., so that was within two minutes of him signing that form?
A. Correct
Q. I’m assuming enough time to get the tape-recorder together and....
A. Set up the equipment, right.
Q. Now, in that third statement y’all again in this statement, and make sure on the record, that he understands his rights and he indicated that he did, correct?
A. Right
Q. Now, in this statement he indicated that he told you that he wanted to tell you something really bad, that there’s something that he had to talk to you about, right?
A. Right
Q. That was in your truck?
A. Yes ma'am.
Q. And what did he tell you?
A. He told me that she performed oral sex on him, and that he did have intercourse with her, or' he had stuck his penis inside her.
Q. I know it’s been a long time, and I’m going to show you that statement. When you began to question him, wasn’t it about whether or not he had put his penis inside of her?
A. What, I begin here?
Q. But that’s what you’re questioning him in regard to?
A. No, I’m asking him basically what, you talking about her?
Q. No, here.
A. Oh, down here, I’m sorry. Right, by sticking his penis in her, right.
Q. He had told you that in the truck?
A. Yes ma'am.
11SQ. And then he again told you that here?
A. Somewhere later on, yes ma'am.
Q. But didn’t he tell you, but I didn’t come inside of her?
A. Right
Q. That’s what he had told you in the truck?
A. Yes ma'am.

The transcribed statement reflects that questioning started at 1:12 p.m. and concluded at 1:24 p.m. Detective Ortis confirmed that the Defendant was advised of his rights before he was questioned, stating as follows:

TODD: UH, BEFORE WE TURNED ON THE TAPE, AARON, I ADVISED YOU OF YOUR RIGHTS, RIGHT?
AARON: YEA.
TODD: DO YOU UNDERSTAND YOUR RIGHTS AND YOU WANT TO TALK TO THE CHIEF, YOU HAVE TO SAY YES OR NO.
AARON: YES SIR.
TODD: O.K. AND YOU WANT TO TALK TO CHIEF DUPUIS AND MYSELF RIGHT NOW?
AARON: YEA.
TODD: ALRIGHT.
CHIEF DUPUIS: O.K. AARON, WHEN I BROUGHT YOU TO VILLE PLATTE, I GUESS ABOUT 8:30 THIS MORNING, YOU TOLD ME WHEN I DROPPED YOU OFF THAT YOU HAD THOUGHT ABOUT IT AND YOU WANTED TO TELL ME WHAT REALLY HAPPENED, RIGHT, IS THAT RIGHT?
AARON: YEA.
CHIEF: AND WE CAME BACK TO TALK TO YOU.
AARON: YEA.
CHIEF: O.K WELL I’M HERE TO TALK TO YOU, WHAT DO YOU HAVE TO TELL ME?

116After establishing how the Defendant met the Victim and her family, Chief Du-puis stated:

CHIEF: O.K. NOW YOU WANT TO TELL ME WHAT HAPPENED, LIKE I SAID BEFORE, THE TWO PREVIOUS INTERVIEW’S [sic] THAT WE DID, THERE IS [sic] ALLEGATIONS FROM THE LIL GIRL THAT YA’LL HAD SOME SEXUAL ACTIVITY BETWEEN YA’LL SELVES [sic] AND YOU, YOU WERE KINDA DANCING AROUND IT AND NOT WANTING TO REALIZE WHAT HAPPENED AND THEN NOW YOU WANT TO TALK TO ME ABOUT IT, SO YOU WANT TO TELL ME EXACTLY WHAT HAPPENED?
AARON: WELL PRETTY MUCH TO ME, ALL IT WAS, WAS PLAYING AROUND LIKE LIL KIDS, LIKE OLDER PEOPLE WOULD PLAY WITH LIL YOUNG KIDS AND
CHIEF: YOU TOLD ME IN MY TRUCK THAT YOU STUCK YOUR PENIS IN HER.
AARON: I MAY HAVE AT ONE TIME, BUT, I, I, I,.
CHIEF: LISTEN, WAIT, WAIT, WAIT, HOLD UP . I DON’T WANT “I MAY HAVE”, I DON’T WANT “I MIGHT HAVE”, I DON’T WANT “I THINK I DID”, OR “I THINK I DIDN’T”, I WANT TO KNOW WHAT YOU KNOW. NOW WHEN WE DROVE UP HERE, YOU STOPPED ME IN THE PARKING LOT AND YOU SAID, CHIEF, I WANT TO TALK TO YOU, I DID DO THIS, I DIDN’T MAYBE, IN FACT YOU [sic] OWN WORDS WERE, “I DIDN’T COME INSIDE OF HER”. YOU REMEMBER WHEN YOU TOLD ME THAT?
AARON: YES.
CHIEF: “BUT I DID STICK MY PENIS IN HER”.
AARON: BUT THAT HAS NOTHING TO WITH THE FIRST HOUSE I SAID, AT THE SECOND HOUSE IT MIGHT OF HAPPENED.

The Defendant did not raise this issue at the suppression hearing, nor did he object at trial on the basis that his statement was tainted by statements made to officers during his transport from Mam-ou to Ville Platte. As noted by the supreme court in State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967-68, cert, denied, — U.S.-, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010) (footnote omitted):

117Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Brown, 434 So.2d 399 (La.1983) (rejecting defendant’s alternative argument regarding the denial of his motion to suppress because he had not raised the issue at trial); State v. Johnson, 07-1040 (La. App. 4 Cir. 9/10/08), 993 So.2d 326 [writ denied, 08-2649 (La.6/5/09), 9 So.3d 868] (“failure to raise a ground for suppressing an item of evidence in a properly filed motion to suppress waives such a basis for exclusion on appeal”); State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (defendant is limited on appeal to the grounds he articulated at trial and a new basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal); see La.C.Cr.P. art. 841 (providing that a new basis for an objection cannot be raised for the first time on appeal).

Accordingly, the issue is not appropriately before this court for the first time on appeal and will not be considered herein.

Even considering the merits of the argument, the Defendant did not show that warnings were withheld until after he was interrogated and confessed. First, the statement at issue was not his first statement, but his third statement, the second of two statements taken that day. The Defendant was not new to being advised of his rights in conjunction with the instant charges. Additionally, when the Defendant started talking about the case during his transfer to Ville Platte, Chief Dupuis instructed him to wait until he could be properly interrogated later that afternoon. We find that the evidence does not support the Defendant’s claim that he was questioned first, and then given the necessary warning before re-interrogation. Accordingly, this court finds that the Miranda warning and waiver signed prior to the Defendant’s third statement were effective, and thus, there is no merit in the Defendant’s claim.

For the reasons stated herein, we find that the Defendant waived his rights prior to giving his first, second, and third statements.

11SCoercion

The Defendant complains that Chief Dupuis constantly urged him to be a man and tell the truth, to spare the child from further medical, psychological, and legal exams, and to save himself by confessing. The Defendant also maintains that Chief Dupuis enticed the Defendant to confess by telling him that he would try to work something out with the district attorney. Lastly, the Defendant contends that Chief Dupuis misstated the strength of the State’s case by telling the Defendant that the examining doctor reported that he and the Victim had intercourse, when in truth, there was no conclusive finding of sexual intercourse. The Defendant does concede, however, that the Victim’s hymen was not intact as reflected in her medical records.

The Defendant contends that Chief Du-puis’s statements and comments were more coercive than those found to be problematic in State v. Lavalais, 95-320 (La.11/25/96), 685 So.2d 1048, cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). In Lavalais, the defendant was told by an officer that he would go to jail if he did not take a polygraph test. He was also told that if he were truthful, he would be dealt with differently than a defendant who took the polygraph test and was found to be telling a lie. Also, the defendant was told that if he confessed, his jail time would be less. Lastly, the officer promised to talk to the judge and do whatever he could to help.

In determining whether the defendant’s subsequent confession was voluntary, the supreme court stated:

Before the state may introduce a confession into evidence, it must affirmatively show that the statement was voluntary and not induced by fear, duress, intimidation, menaces, inducements, or promises. La.Code Crim. P. art. 703(D); La. R.S. 15:451; State v. Bourque, 622 So.2d 198 (La.1993). The test for voluntariness requires a review of the totality of the circumstances under which the statement was given; any inducement offered is but one factor in that analysis. State v. Lewis, 539 So.2d 1199 (La.1989). Statements by police to a defendant that he would be better Looff if he cooperated are not “promises or inducements designed to extract a confession.” State v. Petterway, 403 So.2d 1157, 1160 (La.1981); State v. Dison, 396 So.2d 1254 (La.1981)

Id. at 1053. The court concluded that the defendant’s fear of jail did not render his confession involuntary because he was told repeatedly that he was free to leave and did not have to take the polygraph exam. Although the court found problematic some of the officer’s remarks, the court concluded that the comments taken in their entirety were not improper. The court reasoned:

The thrust of [Officer] Cook’s comments were that defendant would have an easier time if he confessed. Rather than being promises or inducements designed to extract a confession, these comments were “more likely musings not much beyond what this defendant might well have concluded for himself.” Petterway, 403 So.2d at 1160.

Id. at 1058-54.

The Defendant also refers to State v. Demming, 40,033, pp. 5-6 (La.App. 2 Cir. 9/21/05), 911 So.2d 894, 897, wherein the court stated:

As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, 1276, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288. Even the slightest inducements held out by a person in authority such as a police officer or a prosecutor may render a confession involuntary. State v. Jackson, 381 So.2d 485 (La.1980); State v. Hall, 434 So.2d 517 (La.App. 2d Cir.1983); writ denied, 440 So.2d 759 (La.1983).

In Demming, the detective asked the defendant, “Do you want to tell the truth, you can’t hurt yourself.” Id. at 898. The court found that the detective’s statement was not an inducement which rendered the defendant’s subsequent confession involuntary, viewing the overall context in which the defendant had just been warned that anything he said would be used against him in court. The court concluded that the comment did not diminish the warning in such a manner as to cause confusion.

lanía reaching its decision, the Demming court relied on its decision in State v. Hall, 434 So.2d 517 (La.App. 2 Cir.), writ denied, 440 So.2d 759 (La.1983), wherein the officer told the defendant that it would be better or things would be easier if he cooperated and made a statement. The court found that the officer’s comment did not amount to a prohibited promise or inducement designed to extract a confession but was no more than a mild exhortation to tell the truth.

In opposition to the Defendant’s claim of coercion, the State refers to State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). In Blank, the defendant claimed that due to the length of the interrogation, he lacked the capacity to give a voluntary statement. On appeal, the court noted that although the defendant was at the station for approximately twelve hours, he was in police custody for only half of that time. Further, the court found nothing to suggest that the duration of the interrogation, alone, rendered it involuntary. The defendant made several trips to the restroom and drank sodas throughout the interrogation. Additionally, the defendant never requested to terminate the interrogation although he stated he was weary, cold, and suffered from intermittent back pain throughout the interview. The court concluded that such circumstances did not demonstrate coercion as the result of a lengthy interrogation.

The defendant in Blank also complained of mental and physical duress, pointing to instances when he mentioned he was cold or was experiencing pain in his back, head, or chest or when he appeared tired during the interview. The defendant also asserted that references to God, religion, and his deceased mother during the interrogation caused him to involuntarily confess. Lastly, he also complained that he was denied the opportunity to smoke a cigarette. Although the court found the defendant’s factual allegations to be accurate, the court found that he did not show Lithat the State’s conduct coerced his admissions or rendered the confession involuntary. The court found no evidence on the videotapes and verbatim transcript to show the officers exercising any type of coercion which would render his confession involuntary. The court found the majority of the interview extremely benign on the part of the officers, and the defendant was treated very well throughout. The officers accommodated the defendant when possible by providing him with drinks, use of the restroom, and heating the interrogation room. Although his request to smoke was first denied, after smoking a cigarette while alone in the restroom, the defendant was allowed to smoke from then on and was allowed to smoke before he confessed to any crimes. Regarding references to his deceased mother, the court ruled that appeals to a defendant’s emotions and/or religious beliefs typically did not render an ensuing confession involuntary.

Lastly, the defendant claimed that his confession was illegally coerced by officers’ relentless exhortations to tell the truth, combined with false suggestions that they possessed forensic evidence of his guilt. Despite repeated admonishments to tell the truth throughout the interrogation, the court found that officers did not promise the defendant anything in exchange for his confession other than the suggestion he could clear his conscience. In reaching its decision, the court noted that courts routinely hold that a mild exhortation to tell the truth or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” will not negate the voluntary nature of a confession.

In the instant case, all three of the Defendant’s statements were short, with the first and longest of the three statements lasting twenty-eight minutes. The Defendant’s complaint centers, in part, on the following dialog between Chief Dupuis and the Defendant found in the his first statement:

JgCHIEF: O.K. IF THIS HAPPENED, YOU NEED TO BE MAN ENOUGH AND SAY IT HAPPENED AND DO WHAT WE GOT TO DO, BUT IF IT DIDN’T SHE’S GOT TO GO START, DOCOTOR’S [sic] ARE GOING TO BE CHECKING HER. SHE IS GOING TO HAVE TO START GIVING STATEMENTS IN LAFAYETTE. SHE IS GOING TO BE GOING THROUGH THE MILL, O.K. IF IT HAPPENED TO HER, SHE IS ALREADY GONE THROUGH ENOUGH.
AARON: O.K.
CHIEF: YOU UNDERSTAND WHAT I’M TELLING YOU? SHE DOESN’T NEED TO BE DRUG THROUGH NO MORE, SO IF IT HAPPENED, YOU NEED TO TELL ME. TELL ME WHAT HAPPENED, WE WILL GO TO THE D.A. AND WE WILL TRY TO WORK SOMETHING OUT. IF YOU TRY TO FIGHT THIS AND THIS LIL GIRL GOES AND SHE’S ALREADY SAYING ALL THIS, WHEN SHE GOES TO THE PHYS-COLOGIST [sic], MORE IS GOING TO COME OUT.
AARON: O.K.
CHIEF: DO YOU UNDERSTAND WHAT I’M SAYING? SO YOU NEED TO BE TRUTHFUL AND TELL U.S. AND WE WILL -TRY TO WORK SOMETHING OUT.
CHIEF: YOU GONNA TAKE YOUR CHANCES LIKE THAT NOW? THAT’S WHAT YOU WANT TO DO? YOU KNOW WHAT AGGRAVATED RAPE TAKES, BRO, YOU WANT ME TO READ IT TO YOU IN THE BOOK?
AARON: NO.
CHIEF: YOU KNOW WHAT AGGRAVATED SEXUAL BATTERY COST? YOU ARE GONNA SPEND THE REST OF YOUR LIFE IN THE PEN IF THIS THING GOES TO COURT. THE REST OF YOUR LIFE. I WILL READ IT TO YOU.
AARON: I KNOW, BUT I DO NOT REMEMBER EVER SHOWING.
CHIEF: EVEDENTUALLY [sic] YOU DON’T WANT TO REMEMBER.
AARON: I’D, I’D REMEMBER IF I HAD . REMEMBER DOING IT.
J^CHIEF: OH I KNOW, BUT YOU DON’T WANT TO REMEMBER RIGHT NOW. AND YOU NEED TO CUZ WHEN IT’S GONNA START, WHEN WE ARE GONNA START BRINGING THIS LIL GIRL TO LAFAYETTE AND START TAKING STATEMENTS, AND WHEN SHE IS GONNA HAVE TO START GOING TO THE DOCTORS, YOU THINK THE D.A. IS GONNA CUT YOU ANY SLACK?
AARON: WELL NO I DON’T WANT NONE OF THAT TO HAPPEN.
CHIEF: WELL THAT’S WHAT IS GONNA HAPPEN.
AARON: BUT I DIDN’T THINK.
CHIEF: IT’S GOTTA HAPPEN AND LET ME TELL YOU WHY IT’S GONNA HAPPEN? CUZ WE GOT TO DO IT TO PROVE IT, BECAUSE YOU WON’T SIT HERE AND BE MAN ENOUGH, SIT DOWN AND TAKE YOUR LICKS AND TELL ME THE F— TRUTH. YOU GOT TO BE MAN ENOUGH. EVERYBODY SCREWS UP. I’VE SCREWED UP, HE HAS SCREWED UP, YOU SCREWED UP BEFORE IN YOUR LIFE. YOU GOT TO BE MAN ENOUGH TO SIT RIGHT THERE AND SAY, HEY I MESSED UP, I WAS DRINKING, THE LIL GIRL WAS COMING ON TO ME, I LET MYSELF GO, I SHOULDN’T OF DONE IT, BUT I DID IT.
AARON: BUT, I DON’T SEE HOW IT WOULD HAPPEN. THE ONLY TIME IT COULD OF [sic] HAPPENED IS WHEN I WAS BABYSITTING.
CHIEF: YOU KNOW BETTER THAN ME, BIG DADDY, BUT I’M TELLING YOU ONE THING, SHE’S ALREADY BEEN TO ONE DOCTOR HERE. WE START SENDING HER TO SPECIALIST AND THOSE CHILD PSY-COLOGIST [sic] AND YOU ARE IN A HELL OF A BIND. YOU KNOW THAT? YOU IN A HELL OF A BIND. NOW YOU CAN SAVE HER ALL THAT TROUBLE.
AARON: BUT WHY WOULD I PUT HER THROUGH THAT? THAT’S A LIL OLD TINY GIRL.
CHIEF: CUS YOU SCREWED UP. YOU MESSED UP. YOU MIGHT HAVE BEEN DRINKING. YOU HADN’T HAD SEX WITH ANOTHER LADY THERE IN FIVE YEARS, YOU KNOW, WE ARE ALL MEN, YOU UNDERSTAND. I KNOW WHAT A MAN FEELS LIKE WHEN HE HADN’T HAD SEX IN A LONG TIME. THINGS HAPPEN. I’M NOT SAYING IT’S RIGHT, BUT YOU GOT TO BE MAN ENOUGH TO TAKE YOUR LICKS AARON AND SAY, HEY, I SCREWED UP, DON’T PUT THE LIL GIRL THROUGH ALL THIS CRAP. THIS IS WHAT HAPPENED. THAT’S ALL YOU GOT TO DO. THAT’S WHAT YOU NEED TO DO. IF YOU CARE, ONE OUNCE FOR THIS LIL GIRL, THAT’S WHAT YOU NEED TO DO.
124 * • • •
CHIEF: WELL TAKE YOUR LICKS LIKE IT COMES. I DON’T KNOW WHAT ELSE TO TELL YOU. I WANTED TO GIVE YOU A CHANCE TO SAVE YOU AND THE LIL GIRL FROM ALL THIS, THAT’S YOU.
CHIEF: NO I’M FINISHED. YOU READY TO FINISH OR YOU WANT TO TELL ME THE TRUTH? I CAN’T SIT HERE ALL AFTERNOON AND TRY TO MAKE YOU SAVE YOUR OWN BUTT. YOU DON’T WANT TO SAVE IT, THAT’S YOU.
CHIEF: DON’T BE SORRY FOR ME. DON’T BE SORRY FOR ME AT ALL, I WAS TRYING TO HELP YOU. AARON: YEA.
CHIEF: YOU GOT TO BE SORRY FOR YOU.

Although the exact duration of the Defendant’s second statement is not known, it was significantly shorter than the first; it was less than half the number of transcribed pages. The statement began at 8:13 a.m., but there appears to be a typographical error at its conclusion, indicating that the statement ended at 1:16 p.m. Chief Dupuis testified that the Defendant was questioned prior to his transport to Ville Platte and was transported around 8:30 a.m.

Detective Ortis began questioning the Defendant as follows:

TODD: O.K. AND UH, YESTERDAY WE HAD AN OPPORTUNITY TO TALK TO YOU, RIGHT?
AARON: YES SIR.
TODD: AND WE ASKED YOU A COUPLE OF QUESTIONS AND YOU WEREN’T QUITE SURE OR DIDN’T HAVE AN ANSWER FOR QUITE A FEW OF THEM YESTERDAY, RIGHT?
AARON: NAW, I REALLY, THAT’S NOT EXACTLY, I HAD TO THINK ABOUT IT, BUT LAST NIGHT I SAT THERE AND THOUGHT ABOUT IT AND IT COMES UP WITH COMMON SENSE.
I25TODD: SO, UH, YOU WANT TO TALK TO U.S. AGAIN THIS MORNING?
AARON: YEA.

Later, after the Defendant stated that the Victim took his hand one time and put it on her chest and between her legs, Chief Dupuis stated:

CHIEF: O.K. NOW YOU ARE DOING THE RIGHT THING, O.K. AND YOU ARE SAYING THE RIGHT THING. AARON: YEA I’M SAYING WHAT I HAVE TO.
CHIEF: I KNOW, BUT YOU ARE CUTTING YOURSELF SHORT, BECAUSE WE KNOW THAT YA’LL HAD INTERCOURSE, O.K BECAUSE THE DOCTOR TELLS U.S. THAT AND SHE TELLS U.S. THAT.

Next, the officers stressed that the Defendant needed to tell the truth:

TODD: NOW YOU HEARD WHAT MR. CHRIS GODEAUX SAID YESTERDAY, WHAT SHE TOLD HIM.
AARON: YEA THAT SHE HAD BEEN ENTERED.
TODD: THE OFFICER STATED THAT YOU HAD PUT YOUR PENIS IN HER MOUTH, DO YOU REMEMBER HIM SAYING THAT YESTERDAY?
CHIEF: AARON YOU REALLY NEED TO COME AND TELL THE TRUTH, O.K. AS BAD AS IT HURTS AND AS BAD AS IT MAY SEEM.
AARON: I MAY, I MAY HAVE, BUT, I REALLY CAN’T BELIEVE THIS. CHIEF: (INAUDIBLE) WE CAN’T SAY MAY HAVE, MIGHT HAVE, OR .YOU NEED TO REMEMBER AND YOU NEED TO COME CLEAN. LIKE I SAID, IT YOU DON’T, WE ARE GONNA HAVE TO PUT THIS LIL GIRL THROUGH ALL THIS.
AARON: NO I REALLY DON’T WANT THAT. I MEAN, SHE BECAME PART OF MY FAMILY WHEN SHE BECAME PART OF MY NEPHEW.
CHIEF: AND SHE DOESN’T DESERVE IT EVEN IF SHE IS NOT FAMILY.
AARON: YEA I MEAN.
J^CHIEF: ANY TEN YEAR OLD GIRL DON’T DESERVE. YOU KNOW WHAT EVER HAPPENED BETWEEN YA’LL, HAPPENED AND THERE IS REASONS AND THERE IS WAYS THINGS HAPPEN AND I UNDERSTAND WHERE YOU ARE COMING FROM, BUT ONCE IT HAPPENS, THEN YOU GOT TO TAKE THE RAP FOR IT, NOT THE TEN YEAR OLD GIRL. YOU UNDERSTAND, YOU GOT TO STAND UP AND SAY I’M THE ADULT, I MESSED UP.

Considering the totality of the circumstances under which these statements were given, we find Chief Dupuis’ comments were similar to those made in Blank, Lavalais, and Demming and did not amount to coercion. During these brief statements, Chief Dupuis’ comments were directed at making life easier for the Victim by eliciting the truth from the Defendant. Although Chief Dupuis indicated that he would try to work something out with the district attorney if the Defendant would tell the truth and make it easier for the Victim, Chief Dupuis did not make any promises. The record does not reflect that the Defendant’s statements were the result of persistent and repeated interrogations by numerous skillful law enforcement officers, nor did the police take heightened steps to obtain incriminating statements as claimed by the Defendant.

Regarding the issue of misstatements or false indications of forensic evidence, we note that the issue was not raised at the suppression hearing, nor did the Defendant assert at trial that false claims of forensic evidence led to his confession. Failure to raise the ground for the purpose of suppressing his confession waives his right to consider the issue for the first time on appeal. La.Code Crim.P. art. 841(A); Montejo, 40 So.3d 952. Accordingly, the issue is not considered herein.

For the reasons stated herein, we find that there is no merit to the Defendant’s argument that he was coerced by officer’s during his three statements.

^ASSIGNMENT OF ERROR NUMBER TWO

In his last assignment of error, the Defendant argues that the trial court erred in sentencing him to ten years at hard labor for indecent behavior with a juvenile based upon findings of fact not reflected in the jury’s verdict. The Defendant maintains that it was error to sentence him under the enhanced penalty provision of La.R.S. 14:81(H)(2) when the jury did not make a determination as to the additional element necessary to impose the enhanced penalty.

At the time of the offense, La.R.S. 14:81(H) read:

H. (1) Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
(2) Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

On appeal, the Defendant contends that the trial court erred in sentencing him under the enhanced sentencing provision in La.R.S. 14:81(H)(2) because the jury did not make a determination as to the Victim’s age, an additional element necessary for imposition of the enhanced penalty. The Defendant refers, first, to the bill of indictment wherein he was charged in count one with committing indecent behavior with a juvenile “by committing a lewd and lascivious act upon a juvenile or in the presence of, one V.T.I., under the age of 17 by the defendant, with the intent of arousing or gratifying the sexual desires of either person, the defendant being over the age of 17 years.”

ladSText, the Defendant refers to the jury charge regarding the elements of the offense. The jury was instructed that to find the Defendant guilty as charged, it had to find that “the victim was under the age of 17 and more than two years younger than the defendant at the time of the alleged offense.” As such, the jury was not required to find that the victim was under the age of thirteen as required by La.R.S. 14:81(H)(2).

Lastly, the Defendant refers to the jury’s verdict sheet, complaining that it did not list a separate finding by the jury that the Victim was under the age of thirteen. The only finding made by the jury was “Guilty of Indecent Behavior with a Juvenile.”

In support of his argument, the Defendant refers, first, to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), wherein the defendant pled guilty to an offense which carried a sentencing range of five to ten years. The trial court, however, imposed a twelve-year sentence pursuant to a hate crime statute that allowed a sentence to be enhanced upon the trial judge’s finding by a preponderance of the evidence that the crime was motivated by racial bias. In reversing the ruling, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,120 S.Ct. at 2362-63.

The Defendant also cites Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), wherein the Supreme Court followed its ruling in Apprendi. The defendant was sentenced to death for his capital felony-murder conviction. At the time of the offense, Arizona law allowed the trial judge alone to determine the presence or absence of the aggravating factors required for imposition of the death penalty. The Court, citing language from Apprendi, stated,

laoThe dispositive question, we said, “is one not of form, but of effect.” Id., at 494, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. If a State makes an increase in a defendant’s authorized punishment contingent on a finding of fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt. See id., at 482-483, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.

Id. at 602, 122 S.Ct. at 2439. In reversing the lower court ruling, the Court concluded that the Sixth Amendment required the enumerated aggravating factors be found by a jury, because they operated as the functional equivalent of an element of a greater offense.

Lastly, the Defendant refers to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), wherein the Supreme Court clarified its previous holdings in Ring and Apprendi. The defendant in Blakely pled guilty to kidnapping and was sentenced to ninety months. However, the facts to which he admitted in his guilty plea supported a maximum sentence of fifty-three months. Pursuant to state law, after making a judicial determination that the defendant acted with deliberate cruelty, the trial court imposed an enhanced sentence of ninety months. In reversing the lower court, the Supreme Court considered the holdings in Apprendi and Ring, recognizing that the facts supporting the sentence enhancement were neither admitted by the defendant nor found by a jury. The Court ultimately concluded that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 308-04,124 S.Ct. at 2537.

Relying on the rulings in Blakely, Ring, and Apprendi, the Defendant asserts that the State was required to set forth the Victim’s age in the bill of indictment, and the jury was required to find that the child was under thirteen at the time of the offense. Although the Victim’s age was not admitted to at trial, the Defendant | ^contends that the pivotal issue is whether the jury made a finding beyond a reasonable doubt as to the Victim’s age.

Both the Defendant and the State refer to a Louisiana case, State v. Gibson, 09-486 (La.App. 5 Cir. 3/9/10), 38 So.3d 373, writ denied, 10-802 (La.11/5/10), 50 So.3d 814, herein a similar issue was raised. The defendant, convicted of sexual battery, argued that the trial court erred in sentencing him in accordance with the penalty provision of La.R.S. 14:43.1(0(2), an enhanced penalty imposed when the offense involves a victim under thirteen years old and the offender is seventeen years or older. The defendant reasoned that neither the jury’s verdict nor the jury instructions referenced the additional age requirements of La.R.S. 14.43.1(C)(2). The defendant was initially charged with aggravated rape but was found guilty of the responsive verdict of sexual battery. The jury, however, did not indicate on the verdict form that the defendant was older than seventeen years of age or that the victim was under the age of thirteen.

In Gibson, the court considered the Supreme Court’s rulings in Apprendi, Ring, and Blakely and concluded that the trial court had committed an Apprendi violation. The court added that the State should have explicitly noted in the bill of information that the enhanced sentence provision in La.R.S. 14.43.1(C)(2) was applicable to the defendant and that the trial court should have included a jury instruction reflecting that the defendant’s and the victim’s ages were elements of same.

The Gibson court, however, did not end its analysis at that point but referred to Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999), wherein the Supreme Court held that a “[jury] instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable [S1 vehicle for determining guilt or innocence.” The court in Neder then proceeded with a harmless error analysis and concluded, “In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” Id. at 19; 119 S.Ct. at 1838.

The Gibson court also cited Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), wherein the trial court imposed an enhanced sentence for a firearm based solely on the jury’s finding that the defendant was armed with a deadly weapon. The Supreme Court ultimately held that the trial court’s failure to submit a sentencing factor to the jury was not a structural error requiring a reversal of the conviction but was subject to a harmless error analysis.

Applying a harmless error analysis, the court in Gibson noted that the victim’s date of birth was found in the bill information, the victim told the examining physician the year she was born, and the victim’s mother’s testimony indicated the year the victim was born. Accordingly, the court found that the jury could have concluded that the victim would have been approximately seven years old when the abuse began and nine years old when it ceased. With regard to the defendant’s age, based on the testimony of the victim’s mother, the defendant would have been approximately twenty-four years old when the abuse began and twenty-six years old when it ended. The court also ruled that jury observation could be used to infer a defendant’s age when no direct evidence was presented. The court concluded that the Apprendi violation was harmless.

In the instant case, the alleged error is clearly an Apprendi violation. The State should have explicitly noted in the bill of information that the enhanced sentence | ^provision in La.R.S. 14:81(H)(2) was applicable to the Defendant, and the trial court should have included a jury instruction reflecting the Defendant’s and the Victim’s ages as elements of offense. We find that a harmless error analysis is appropriate in this case to determine whether the trial court’s error in failing to instruct the jury as to the enhanced penalty provision of La.R.S. 14.81(H)(2) was harmless.

With regard to the bill of indictment, the Victim’s age, nine years old, is not set forth in count one but is found in count three and was read aloud by the minute clerk on the first day of trial. Additionally, in discussing the sexual acts resulting in the charge of indecent behavior with a juvenile during opening statements, the prosecutor repeatedly stated that the Victim was nine years old at the time of the offense. On direct examination, the Victim testified that she was born on January 26, 1998, and turned nine years old on January 26, 2007. She also indicated on redirect examination that she was nine years old at the time of the offenses and had just turned ten when she gained the courage to report the offenses. The bill of indictment reflects that all the offenses for which the Defendant was charged, including indecent behavior with a juvenile, occurred on or about March 1, 2007, through November 30, 2007, when the Victim was nine years old. Lastly, the Victim’s medical records introduced at trial included her date of birth.

With regard to the Defendant’s age, his date of birth, January 29, 1964, is found in the bill of indictment and was reiterated by the Defendant at the beginning of all three recorded statements. The Defendant’s date of birth also appears on the Miranda waiver dated February 3, 2008, and his age appears on the Miranda waiver dated February 8, 2008, both of which were introduced at trial. Lastly, Detective Ortis testified at trial that the Defendant was forty-four years old at the time he signed lssthe Miranda waiver dated February 8, 2008, and that he informed the Defendant that they wanted to speak to him about the rape of a “ten year old.”

Considering the evidence viewed in the light most favorable to the prosecution, we find the evidence was sufficient for a rational trier of fact to conclude the State proved beyond a reasonable doubt that the Defendant was seventeen or older and that the Victim was under the age of thirteen. Further, the Defendant did not refute at trial any of the evidence regarding his age or the Victim’s age, nor does he challenge evidence of same on appeal. Although the trial court clearly committed an Apprendi violation, we find the error was harmless. Accordingly, this assignment of error has no merit.

CONCLUSION

The Defendant’s convictions and sentences are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Timothy Hugh QUEEN v. O.S. NUGENT, Asst. Warden. Timothy Hugh Queen v. Jeffrey Miller, Asst. Warden. Timothy Hugh Queen v. O.S. Nugent, Asst. Warden.
    Nos. 10-1130, 10-1131, 10-1132.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Robert C. McCorquodale, In House Counsel, Calcasieu Parish Sheriffs Office, Lake Charles, LA, for Defendants/Appel-lees, O.S. Nugent and Jeffrey Miller in their official capacities as deputy sheriffs employed by the Calcasieu Parish Sheriffs Office.
    Timothy Hugh Queen, In Proper Person, Calcasieu Sheriffs Prison, Lake Charles, LA.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

pin these consolidated cases, pre-trial detainee, Timothy Hugh Queen (Queen), appeals judgments of the trial court granting the peremptory exceptions of no cause of action filed by defendants, employees of the Calcasieu Parish Sheriffs Office.

FACTS

Queen is housed in the Calcasieu Parish Correctional Facilities (CPCF) awaiting trial for armed robbery and other offenses. The CPCF is operated by the Calcasieu Parish Sheriff (Sheriff). On several instances during his stay, Queen, who had sought “indigent inmate” status, had family members deposit funds in the names of other inmates so that he could purchase personal items while avoiding having to help pay for the costs of his incarceration. Queen went through an administrative procedure and was disciplined for utilizing other inmates’ debit accounts to avoid the indigent inmate “payback” system operating within the facility. Queen appealed the discipline ordered in the administrative procedure to the Fourteenth Judicial District Court naming assistant wardens, Jeffrey Miller and O.S. Nugent, as defendants.

Defendants filed exceptions of no cause of action which were granted by the trial court. Queen lodged these appeals.

DISCUSSION

On appeal, Queen contends the trial court erred in granting the exceptions of no cause of action. Specifically, Queen contends the trial court erred in finding that he was not entitled to judicial review under La.R.S. 15:1177.

The defendants contend that there is no provision for judicial review of a decision under a sheriffs administrative remedy procedure because the statute provides only for review of “an adverse decision ... by the Department of Public Safety and Corrections or a contractor operating a private prison facility.” La.R.S. | ?15:1177(A). While La.R.S. 15:1177 does mention inmates in the custody of the sheriff, it does not provide for judicial review of sheriffs’ procedures; it only provides the venue for judicial review of the Department of Correction’s decisions regarding inmates housed in a parish prison. Moreover, Queen names employees of the Sheriff as defendants even though the statute specifically provides that the Department of Public Safety and Corrections is the only proper party defendant. La.R.S. 15:1177(A)(l)(b). See also Winston v. Martin, 34,195, 34,200 (La.App. 2 Cir. 9/21/00), 764 So.2d 368.

Queen argues that La.R.S. 15:1174 defines “offender” in such a way as to bring him under the purview of the statute. Even if this were the case, it does not mean he is entitled to judicial review under La.R.S. 15:1177. We are mindful that our brethren on the first circuit have reached a contrary conclusion saying:

[T]his interpretation, which if carried to its logical conclusion seems to imply that some inmates housed in parish prisons are governed by the Department of Corrections’ administrative remedy procedure and others in the same facility are governed by the Parish Prison’s procedure. We believe that the statute, while clumsily phrased, does provide for judicial review of an adverse decision “rendered pursuant to any administrative remedy procedure under [the CARP],” including procedures adopted by sheriffs. LSA 15:1177(A) (emphasis added).

Spooner v. East Baton Rouge Parish Sheriff Dept., 01-2663, p. 6 (La.App. 1 Cir. 11/8/02), 835 So.2d 709, 713. We disagree.

We take judicial notice of the fact that the Department of Public Safety and Corrections contracts with local sheriffs to house inmates in parish correctional facilities. This means that it is completely logical for some inmates, such as pre-trial detainees like Queen, to be treated differently under the statute. Accordingly, we find no error in the trial court’s judgments granting the exceptions of no cause of action in favor of the defendants.

^j^DECREE

For the foregoing reasons, the judgments of the trial court in these consolidated cases are affirmed.

AFFIRMED.


author: PETERS, J.

text:
    KEPCO OPERATING, INC., d/b/a Mohawk Well Services v. Steven EUBANKS.
    No. 10-1166.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Larry B. Minton, Alexandria, LA, for Appellant, Steven Eubanks.
    J. Martin Lattier, Shreveport, LA, for Appellee, Kepco Operating, Inc. d/b/a Mohawk Well Services.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

Lin these consolidated workers’ compensation cases, the plaintiff, Steven Eubanks, appeals a judgment dismissing his claim for indemnity and medical benefits arising from injuries he sustained in an October 23, 2007 accident while working for Kepco Operating, Inc. d/b/a Mohawk Well Services (Kepco). For the following reasons, we reverse the judgment of the workers’ compensation judge (WCJ) and render judgment awarding Mr. Eubanks workers’ compensation benefits as well as statutory penalties and attorney fees.

DISCUSSION OF THE RECORD

On October 23, 2007, Mr. Eubanks was employed by Kepco as a floor hand on a drilling rig. He was injured while attempting to assist four co-workers in attaching a devise known as the “smokestack” to another section of the rig known as the “trigger.” In order to attach the smokestack to the trigger, the five men were required to lift the smokestack over their heads and push it upright until it was vertically in position over the trigger. In working as a team to raise the smokestack, the worker in the top position would ultimately lose contact with the piece of equipment and would then move to the bottom portion, reestablish contact, and continue pushing upward. This rotation continued until the smokestack reached the vertical position over the trigger.

As Mr. Eubanks reached the top position a second time during the process, he lost control of the smokestack and it fell through his hands and hit him on the shoulder. According to Mr. Eubanks, he immediately felt a warm, tingling sensation in his back and became “stove up.” He reported his injury to his supervisor, Bobby Purvis, but continued working that day. However, by the third day, he was having 1 ¡.difficulty moving his legs to such an extent that he could hardly engage the clutch on his vehicle while driving to work. When he arrived at the work site, he could not exit his vehicle. Mr. Purvis instructed a co-worker to drive Mr. Eubanks home. Mr. Eubanks never returned to work with Kepco.

Kepco paid Mr. Eubanks no benefits and, on March 31, 2008, he filed a disputed claim for compensation. Less than one month later, Mr. Eubanks and Kepco entered into a compromise of the claim wherein Kepco agreed to pay Mr. Eubanks indemnity benefits for nine weeks between October 23, 2007, and April 15, 2008, calculated at the rate of $426.67 per week and totaling $3,840.21. Additionally, Kepco agreed to begin paying Mr. Eubanks weekly indemnity benefits at the rate of $426.67 beginning April 16, 2008. In exchange for this payment, Mr. Eubanks agreed to dismiss any claims for additional indemnity benefits for the period between the date of the accident and April 15, 2008, as well as his claim for statutory penalties and attorney fees that might have been owed for his employer’s actions or inac-tions during that same period. Additionally, as a part of the compromise agreement, Mr. Eubanks reserved his right to seek future indemnity benefits, including penalties and attorney fees, relating to his October 23 work accident. Based on this compromise agreement, and pursuant to a joint motion of the parties, on April 28, 2008, the WCJ executed an order dismissing Mr. Eubanks’ pending claim. In addressing the preservation of rights, both the joint motion and the order of dismissal specifically referenced the accident of October 23, 2007.

From the time of the accident through the April 15, 2008 settlement, Mr. Eu-banks received medical treatment from two sources — the Huey P. Long Medical Center (Medical Center) in Pineville, Louisiana, and Dr. Robert A. Boisvert, an Alexandria, Louisiana chiropractor.

Two days after the accident, on October 25, 2007, Mr. Eubanks sought treatment at the Medical Center for his injuries and was treated and released. However, he did not seek additional care from a health care provider for almost one month, partly because Kepco was not paying for his medical expenses. He next appeared at the Medical Center on November 20, 2007, not for his injuries, but because his wife required medical care. According to Mr. Eubanks, he sought and received a work release from the Medical Center on that day because he needed to somehow support his family.

Sometime after obtaining the work release from the Medical Center, Mr. Eu-banks began working for Thomas R. Floyd Mason Contractor, Inc., a contracting firm which, at that time, was constructing a prison in Jena, Louisiana. He took a job with the contracting firm because Kepco refused to allow him to return to work despite the work release. In early January of 2008, Mr. Eubanks experienced severe lower back pain while moving some cinder blocks on the job and was forced to stop |4working. This incident caused him return to the Medical Center for additional treatment.

On January 7, 2008, Mr. Eubanks returned to the Medical Center and was examined and released on that day. However, a physician at the Medical Center scheduled him for a January 25, 2008 MRI. The results of the MRI established that Mr. Eubanks suffered from an extruded disc at L5-S1, three protruding discs at L4-5, L3-4, and L2-B, and a narrowing of the spinal canal.

Approximately two weeks later, on February 9, 2008, Mr. Eubanks was treated at the LaSalle General Hospital in Jena, Louisiana, for injuries sustained in a motor vehicle accident which occurred that day. The hospital released Mr. Eubanks with a diagnosis of acute cervical myofascial strain. Ten days later, on February 19, 2008, Mr. Eubanks began treatment with Dr. Boisvert. Dr. Boisvert’s emphasis included treatment for both the cervical strain sustained in the automobile accident as well as the lower back complaints.

Kepco paid Mr. Eubanks the lump sum of $3,840.21 pursuant to the terms of the compromise agreement. However, despite acknowledging that there would be no interruption of benefits after the April 15 settlement date because weekly payments were to begin anew immediately, Kepco’s next weekly payment was not tendered until May 22, 2008. Kepco then skipped a week and payed another weekly benefit on June 4, 2008. It paid no weekly benefits thereafter.

Despite having stopped all indemnity benefits in June of 2008, Kepco did not file a disputed claim related to Mr. Eubanks’ entitlement to indemnity benefits until 1^August 21, 2008. In that filing, Kepco sought to have Mr. Eubanks examined by its choice of orthopedic surgeon, Dr. Milan Mody, of Shreveport, Louisiana. Additionally, Kepco questioned whether Mr. Eu-banks’ continuing disability was related to the October 2007 work accident and, therefore, whether Kepco was obligated to pay him additional indemnity and or medical benefits. Between June of 2008 and August 21, 2008, Mr. Eubanks’ only medical treatment was that provided by Dr. Bois-vert.

By correspondence dated August 27, 2008, Mr. Eubanks’ counsel wrote Kepco seeking reinstatement of the indemnity benefits. Kepco responded by a letter dated September 9, 2008, asserting that its good faith reasons for stopping payment of the benefits was the November 20, 2007 work release and the January 2008 lifting incident. Three days later, on September 12, 2008, Mr. Eubanks filed a disputed claim for indemnity benefits, statutory penalties, and attorney fees. The WCJ consolidated these two separate filings for trial purposes.

As stated above, Mr. Eubanks’ medical treatment between April 15, 2008, and August 21, 2008, was his continued treatment by Dr. Boisvert. The doctor had concluded that by May 20, 2008, Mr. Eubanks had fully recovered from the cervical injury he sustained in the automobile accident, but that the lower back complaints related to the October 23, 2007 accident needed further treatment. Dr. Boisvert continued treating Mr. Eubanks through September 12, 2008.

On June 3, 2009, or almost nine months after Mr. Eubanks stopped seeing Dr. Boisvert, Dr. David S. Muldowny, a Lafayette, Louisiana orthopedic surgeon, examined Mr. Eubanks. After examining him and reviewing the diagnostic studies from the Medical Center, Dr. Muldowny con-eluded that Mr. Eubanks suffered from 1 ^a herniated lumbar disc, as well as spinal stenosis. He recommended that Mr. Eu-banks update the Medical Center lumbar MRI and return for further evaluation. Unfortunately, Mr. Eubanks was unable to obtain a more recent MRI.

Mr. Eubanks next sought medical attention for his lumbar injury in July of 2009, when he returned to the Medical Center because of an incident which had occurred three to four days before at his daughter’s Marksville, Louisiana home. According to Mr. Eubanks, his back “locked up” after he hooked a trailer to a vehicle at his daughter’s home and by the next day he could not even get up off the floor. After remaining in this condition for three to four days, he was transported to the Medical Center by ambulance. There he was treated with medication and an injection. The only other time he went to the Medical Center was on January 9, 2010, when he was again treated for back pain.

At the request of Kepco, Dr. Mody examined Mr. Eubanks on September 3, 2009, or some three months after Dr. Mul-downy’s examination. Although Dr. Mody was of the opinion that it was unlikely Mr. Eubanks would ever again perform any significant manual labor, he also concluded that his lower back condition was more likely than not the result of a degenerative disc pathology rather than his work accident.

Following a January 15, 2010 trial on the merits, the WCJ took the matter under advisement. Thereafter, on May 17, 2010, the WCJ rendered oral reasons for judgment finding that Mr. Eubanks failed to prove that his work accident was the Ueause of his disability. A judgment dismissing Mr. Eubanks’ claims against Kepco with prejudice was rendered on June 8, 2010.

In his appeal, Mr. Eubanks raises one assignment of error and breaks that assignment of error down into four separate issues. The assignment of error states:

The Workers’ Compensation Judge manifestly erred in finding that claimant’s injuries and disability could as likely have been caused by a second accident or by degenerative disc disease as by the accident he suffered on October 23, 2007.

The issues encompassed within that assignment of error include the following:

I. WAS THE INJURY SUFFERED BY STEVEN EUBANKS A RE- . SULT OF DEGENERATIVE DISC PATHOLOGY EXISTING PRIOR TO THE ACCIDENT OF OCTOBER 23, 2007?
II. WAS THE INJURY SUFFERED BY STEVEN EUBANKS CAUSED BY AN ACCIDENT WHICH OCCURRED DURING HIS EMPLOYMENT WITH THOMAS R. FLOYD MASONRY CONTRACTOR IN DECEMBER, 2007?
III. WAS THE INJURY SUFFERED BY STEVEN EUBANKS CAUSED BY THE WORK ACCIDENT WHICH OCCURRED ON OCTOBER 23,2007, DURING HIS EMPLOYMENT WITH MOHAWK WELL SERVICES?
IV. DID MOHAWK WELL SERVICES REASONABLY CONTROVERT THE CLAIM OF WRONGFUL TERMINATION OF BENEFITS FILED BY STEVEN EUBANKS?

OPINION

The first three issues relate to causation and are resolved in Mr. Eu-banks’ favor because of the compromise which led to the April 28, 2008 order dismissing his original claim, as it stood at that time, with prejudice. In reaching this conclusion, we 18note at the outset that the April 28, 2008 order constitutes a consent judgment between the parties which has specific legal effects.

A consent judgment is a bilateral contract in which parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing hope of gain against fear of loss. La.Civ.Code art. 3017; Plaquemines Parish, Government v. Getty Oil Co., 95-2452 (La.5/21/96); 673 So.2d 1002. “A judgment, whether it results from the assent of the parties or is the result of a judicial determination after a trial on the merits, is and should be accorded sanctity under the law.” Id. at 1006.

Deville v. Rapides Area Planning Com’n, 97-1437, p. 8 (La.App. 3 Cir. 6/17/98), 715 So.2d 577, 580-81, writ denied, 98-1943 (La.10/30/98), 727 So.2d 1167.

No matter how “unjust, erroneous, or illegal the settlement may be[,] the parties can only claim under it that which, by its terms, the judgment awards.” Cheramie v. Vegas, 468 So.2d 810, 812-13 (La.App. 1 Cir.), writ denied, 470 So.2d 122 (La.1985).

Encompassed within the compromise agreement and consent judgment of April 2007, is an agreement between the parties that Mr. Eubanks sustained a work-related injury on October 23, 2007, that he was disabled for at least nine weeks between the date of the accident and April 15, 2007, and that he was still disabled as of April 16, 2008.

Despite the clear language of the compromise judgment, Kepco, in its August 21, 2008 disputed claim, questioned whether Mr. Eubanks’ continuing disability was related to the October 2007 work accident and, therefore, whether it was obligated to pay him additional indemnity and or medical benefits. Additionally, when it 19answered Mr. Eubanks’ September 12, 2008 disputed claim filing, Kepco asserted that Mr. Eubanks had violated La.R.S. 23:1208 by failing to disclose income he earned subsequent to the October 23, 2007 accident and that he failed to disclose subsequent problems with his back after the accident. Both of these claims relate to the period before April 15, 2008. These failures, Kepco asserted, were sufficient for Mr. Eubanks to forfeit his right to receive indemnity benefits. Kepco later amended its answer to assert an additional violation of La.R.S. 23:1208 based on Mr. Eubanks’ denial that he suffered from back problems prior to his work accident.

In summary, by filing the disputed claim, and in its answer to Mr. Eubanks’ disputed claim, Kepco is basically attempting to change the terms of the compromise agreement and judgment arising therefrom. In considering this attempt, we first note that “[i]f changes are warranted, such must be effected before [the judgment’s] finality within the ways and means provided by law.” Id. at 813. Kepco sought neither a new trial nor an appeal in this matter. La.Code Civ.P. arts. 1972 and 1978; La.Code Civ.P. arts. 2087 and 2123. Thus, the consent judgment is a final judgment.

Additionally, while a final judgment may be attacked for either vices of form or proof that it was obtained through fraud or ill practices [La.Code Civ.P. arts. 2002 and 2004], Kepco’s original disputed claim asserted neither vices as to form nor fraud or ill practices. It only questioned Mr. Eubanks’ continuing disability. Additionally, Kepco presented no evidence to establish its subsequent claims that somehow it had been misled in the compromise agreement. Thus, Kepco is bound by the terms of the compromise agreement and subsequent judgment, including the finding that Mr. Eubanks was injured and disabled as a result of the October 23, 2007 work accident.

| inMr. Eubanks attempted to address the issue of the compromise judgment by filing a peremptory exception of res judicata. However, the WCJ erroneously rejected this exception and based much of its conclusion that Mr. Eubanks’ disability was not caused by the October 23, 2007 work accident on the work release and the January 2008 cinder block issue. We find that Kepco is bound by its stipulation in the compromise agreement that Mr. Eubanks sustained an October 23, 2007 work accident and that his disability as it existed on April 15, 2008, was caused by the accident. In reaching this conclusion, we notice on our own notion an exception of res judicata as to those issues. La.Code Civ.P. art. 927(B).

DISABILITY ISSUE SUBSEQUENT TO APRIL IS, 2008

Because all questions concerning causation and Mr. Eubanks’ inability to return to work prior to April 15, 2008, were settled by the compromise between the parties, the remaining issue relates to Mr. Eubanks’ ability to return to work after that date. As this issue was not addressed by the WCJ, we will conduct a de novo review of the record in order to reach a determination.

Pursuant to La.R.S. 23:1221(1), a worker, who satisfactorily proves his inability to physically engage in any employment or self-employment as a result of a work-related injury, will be awarded temporary total disability benefits. Proof is by clear and convincing evidence, unaided by any presumption of disability. La.R.S. 23:1221(l)(c). Disability can be proven by both medical and lay testimony, all of which the factfinder weighs in determining whether the injured worker has satisfied his burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La.2/15/08), 976 So.2d 178.

|nKepco’s position in this regard begins with little initial support. Not only did it fail to comply with its promised performance under the compromise, but it had no new medical report upon which to base its decision to not pay Mr. Eubanks the appropriate benefits after April 15, 2008, and it has no explanation for the two non-sequential payments in May and June of 2008. It simply decided to ignore the agreement it had entered into and unilaterally terminate benefits. Even when it filed its August 21, 2008 disputed claim, nothing had changed from the April 2008 compromise agreement. That is to say, Kepco had no evidence to substantiate its argument that Mr. Eubanks was no longer disabled and could return to gainful employment.

In fact, it is significant to note that Dr. Mody, Kepco’s choice of physician, is the only medical provider who has rendered an opinion on Mr. Eubanks’ continued disability — and as of his September 3, 2009 examination, concluded that Mr. Eubanks continued to be unable to return to gainful employment. In his report, he stated:

It appears that Mr. Eubanks has been in chiropractic care after his work related injury, but has not had any formal active physical therapy incorporating lumbar stabilization exercises. I would recommend a 6 week regimen of active lumbar stabilization exercises. The patient will be considered at maximum medical improvement following this intervention. A daily home exercise program along with scheduled anti-inflammatories would be recommended for his chronic spinal complaints.
Given his multilevel lumbar disc pathology, it is very unlikely that Mr. Eubanks will be able to return to his prior position or any significant manual labor type work. Therefore recommendation is made for him to proceed with sedentary to light duty work with permanent restrictions. Full duty work or manual labor is likely to result in further deterioration |12of his spinal pathology and could result in increased chronic low back and/or leg pain.

Mr. Eubanks testified that at the time of the trial, he was not in severe pain because he had received a shot for his back pain the week prior to trial, but he stated that if he attempted to work a few days, he would be physically down thereafter. He requested additional treatment so that he could return to gainful employment. According to Mr. Eubanks, his leg shakes during the night and this prohibits him from sleeping, when he attempts to lift things he pays a price for days thereafter, and that exertion causes him to have difficulty getting out of bed the next day. Still, he attempts to help at home by washing clothes and dishes. While he has always enjoyed hunting, fishing, and riding four-wheelers, the best he has been able to do since the accident is to ride a four-wheeler across the yard a few times.

Mr. Eubanks’ wife, Odelia, testified that prior to this accident, Mr. Eubanks’ health was good, although he had on occasion suffered pulled muscles or spasms in his back. She testified that after the accident, she was required to do just about everything. According to Mrs. Eubanks, the pain can become intense for her husband if he simply moves his back a certain way. She has observed him catch himself and scream from severe pain when aggravating his condition. His condition has become so bad that she has to help him sit, stand up, and put on his socks. She also supported her husband’s assertion that he has difficulty sleeping because his leg begins to hurt in the night. Social activities, according to Mrs. Eubanks, are a thing of the past.

Mrs. Eubanks also supported Mr. Eu-banks’ testimony concerning the July 2009 Marksville incident. According to Mrs. Eubanks, her husband remained on the floor for four days, unable to move because of back pain. It was she who finally convinced him to be transported by ambulance to the Medical Center.

|,sBased on the medical evidence before us, we find that Mr. Eubanks has proven that his inability to engage in any employment or self-employment as a result of his October 23, 2007 work accident has extended past April 16, 2008. Accordingly, we find that he is entitled to temporary total disability benefits onwards from April 16, 2008, at the rate of $426.67 per week, as set out in the prior consent judgment. We further find that Mr. Eubanks is entitled to all reasonable and necessary medical treatment, including specifically that recommended by Dr. Muldowny.

STATUTORY PENALTIES AND ATTORNEY FEES

Finally, Mr. Eubanks argues that he is entitled to penalties and attorney fees as Kepco’s termination of his benefits was not based on a reasonable controversion of his claim. We agree and find that penalties and attorney fees are appropriate.

Louisiana Revised Statutes 23:1201(F)(2) provides for the payment of penalties and attorney fees based on the employer’s failure to provide payment of benefits unless the claim is reasonably controverted or the failure to pay results from conditions over which the employer had no control.

[T]o determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer ... possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890.

In its April 16, 2008 letter, Kepco informed Mr. Eubanks’ counsel that it would commence paying weekly indemnity benefits to Mr. Eubanks in the amount of $426.67 subsequent to the compromise agreement. In reality, it made only two more payments of indemnity benefits to Mr. Eubanks, one on May 22, 2008, and another 114on June 4, 2008. Since Kepco stipulated that Mr. Eubanks’ disability pri- or to April 15, 2008, was caused by the October 23, 2007 work accident, it now cannot rely on medical records predating April 15, to support its termination of his benefits. By June 5, 2005, Kepco had no other evidence on which to base its termination of his benefits. Thus, we find that Kepco failed to reasonably controvert Mr. Eubanks’ claim and that this failure did not result from conditions beyond its control. Accordingly, we render judgment and award Mr. Eubanks $2,000.00 in statutory penalties and $15,000.00 in attorney fees.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the WCJ and render judgment in favor of the plaintiff, Steven Eu-banks, and against the defendant, Kepco Operating, Inc. d/b/a Mohawk Well Services, awarding him temporary total disability benefits in the amount of $426.67 per week from April 16, 2008, subject to a credit for the payments made on May 22 and June 4, 2008. We further rendered judgment in favor of the plaintiff, Steven Eubanks, and against the defendant, Kepco Operating, Inc. d/b/a Mohawk Well Services, awarding him $2,000.00 in statutory penalties and $15,000.00 in attorney fees. Legal interest shall run on the awards according to law. We assess all costs of these proceedings to defendant, Kepco Operating, Inc. d/b/a Mohawk Well Services.

REVERSED AND RENDERED.

      . The smokestack is thirty-five feet in length, eleven inches in diameter, one quarter-inch thick, and made of iron.

      .While this portion of the agreement was not mentioned in the joint motion to dismiss filed by the parties, it is specifically set out in an April 16, 2008 letter from counsel for Kepco to counsel for Mr. Eubanks transmitting the lump sum settlement amount and settlement papers. Specifically, the letter states: "Lastly, my clients will begin paying indemnity benefits at a rate of $426.67 weekly and will forward those directly to your office.”

      . Both the motion and order state that Mr. Eubanks reserved all rights to future workers' compensation benefits that might become due after April 15, 2008 "as it pertains to the work accident which occurred on or about October 25, 2007." (Emphasis added.)

      . The Huey P. Long Medical Center is a facility operated through the Louisiana State University Health Care Services Division.

      . The nine weeks represented by the lump sum payment were specifically set forth in the joint motion to dismiss Mr. Eubanks’ claim. The payment represented the week following the accident, the week following the automobile accident, and the seven weeks after Dr. Boisvert began treating Mr. Eubanks on February 19, 2008, through April 15, 2008.

      . Between trial and the rendition of the oral reasons for judgment, Mr. Eubanks filed an exception of res judicata and a motion to stay the proceedings based on the particulars of the compromise the parties had previously entered into. However, the WCJ rejected the exception and motion after a hearing held on April 5, 2010.

      . As previously noted, the language of the April 16, 2008 letter from Kepco's counsel and the specific language of both the motion to dismiss and the order dismissing the litigation set forth these particulars.

      . This assertion obviously relates back to April 15, 2008, since Kepco paid none of the promised indemnity benefits immediately following the compromise agreement.

      . Dr. Muldowny never received an updated MRI for him to complete his evaluation, but in a January 12, 2010 letter to Mr. Eubanks’ counsel, he acknowledged that the 2008 MRI established that Mr. Eubanks suffered from a large disc herniation at L5-S1 and a large broad-based bulge at L4-5, both of which caused considerable narrowing of the spinal canal.


text:
    Steven EUBANKS v. KEPCO OPERATING, INC. d/b/a Mohawk Well Services.
    No. 10-1167.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Larry B. Minton, Alexandria, LA, for Plaintiff/Appellant, Steven Eubanks.
    J. Martin Lattier, Shreveport, LA, for Defendant/Appellee, Kepco Operating, Inc. d/b/a Mohawk Well Services.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

For the reasons assigned in Kepco Operating, Inc. d/b/a/ Mohawk Well Services v. Eubanks, 10-1166 (La.App. 3 Cir. 3/9/11), 58 So.3d 1047, we reverse the judgment of the workers’ compensation judge and render judgment in favor of the plaintiff, Steven Eubanks and against the defendant, Kepco Operating, Inc. d/b/a Mohawk Well Services, awarding him temporary total disability benefits in the amount of $426.67 per week from April 16, 2008, subject to a credit for payments made on May 22 and June 4, 2008. We further render judgment in favor of the plaintiff, Steven Eu-banks, and against the defendant, Kepco Operating Inc. d/b/a Mohawk Well Services, awarding him $2,000.00 in statutory penalties and $15,000.00 in attorney fees. Legal interest shall run on the awards according to law. We assess all costs of these proceedings to the defendant, Kepco Operating, Inc. d/b/a Mohawk Well Services.

REVERSED AND RENDERED.