author: MARC E. JOHNSON, Judge.

text:
    Richard W. BREAUX v. FRESH START PROPERTIES, L.L.C. and State Farm Fire and Casualty Co.
    No. 11-CA-262.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Plaintiff/Appellant.
    Frederick A. Miller & Associates, Marianne S. Pensa, Attorneys at Law, Metair-ie, LA, for Defendants/Appellees.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Plaintiff, Richard Breaux, appeals the granting of summary judgment in favor of defendants, Fresh Start Properties, LLC (“Fresh Start”) and State Farm Fire and Casualty Co., dismissing his suit for personal injuries allegedly sustained while he was working as an electrician on Fresh Start’s property. For the reasons that follow, we affirm.

Plaintiff filed suit asserting he injured his right knee on July 1, 2007 while performing electrical work at 428 9th Street in Gretna, property which was owned by Fresh Start. He alleged that his electrical work required attic access and, as he was going up the attic stairs, the third step snapped causing him to fall. He maintained Fresh Start was liable for his injury under the theories of negligence and strict liability.

Plaintiff subsequently filed a motion for partial summary judgment on the issue of liability. He argued his injury was caused by an unreasonably dangerous defect in the attic stairs and, thus, Fresh Start was liable under La. C.C. arts. 2317.1 and 2322. Defendants responded by filing their own motion for summary | judgment in which they asserted the attic stairs did not present an unreasonable risk of harm, Fresh Start did not owe a duty to warn or protect plaintiff from the risk of harm, and plaintiff could not meet his burden of proof that Fresh Start knew or should have known of a defect in the attic stairs.

After a hearing, the trial court denied plaintiffs motion for partial summary judgment and granted defendants’ motion for summary judgment dismissing plaintiffs suit with prejudice. Plaintiff filed the instant appeal challenging the trial court’s granting of summary judgment in favor of defendants.

A motion for summary judgment should be granted only if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for a |4trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862 (La.6/29/07), 959 So.2d 884, 887 (per curiam).

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

Louisiana Civil Code articles 2315 and 2316 are the codal foundation for delictual liability for negligence in Louisiana. La. C.C. arts. 2317 and 2317.1 define the basis for delictual liability for defective things, and La. C.C. art. 2322 defines the basis for delictual liability for buildings.

| SA plaintiff alleging negligence or strict liability of a building owner must prove: (1) the property presented'an unreasonable risk of harm; (2) the defendant knew or should have known of the vice or defect; and (3) the damage could have been prevented by the exercise of reasonable care and the defendant failed to exercise such reasonable care. If the plaintiff fails to prove any one of these elements, his claim fails. Meaux v. Wendy’s International, Inc., 10-111 (La.App. 5 Cir. 10/26/10), 51 So.3d 778, 788. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Stiebing v. Romero, 07-723 (La.App. 5 Cir. 12/27/07), 974 So.2d 752, 757. There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. Factors that should be considered and weighed include: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Millien v. Jackson, 09-56 (La. App. 5 Cir. 12/29/09), 30 So.3d 167, 174.

A homeowner has a duty to discover and either correct or warn a guest of any unreasonably dangerous conditions on his premises. However, this duty does not make the owner an insurer of his guests against all possibility of accident. Stiebing v. Romero, 974 So.2d at 756. Not every defect gives rise to liability. Where a risk of harm is obvious and easily avoidable, the risk is not unreasonable. The defect must be of such a nature to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Millien v. Jackson, 30 So.3d at 174.

|ñIn support of their motion for summary judgment, defendants attached the deposition transcripts of plaintiff and Lori Parigi, who is the owner of Fresh Start. Ms. Parigi, a real estate agent, testified that she started Fresh Start as a business to “flip houses,” or buy properties and renovate them for resale for a profit. She stated Fresh Start purchased the property at issue on June 20, 2007, less than two weeks before plaintiffs accident. The house was over 80 years old and dilapidated. She noted the house had exposed beams and rotted insulation. Ms. Parigi did not have a formal inspection of the house because she intended to renovate it. After purchasing the house, Ms. Parigi hired several contractors, including Derrick Kimbrough, for sheetrock work, painting, and molding; Pete Kroeppel, for air conditioning work; “Vie,” for plumbing work; and, plaintiff, for electrical work.

According to both Ms. Parigi and plaintiff, they had known each other for awhile. Ms. Parigi contacted plaintiff about the renovation and inquired as to what it would take to bring the electrical in the house up to code. Plaintiff met with Ms. Parigi at the property and noted that the house was old and needed a complete renovation; but, he stated the structural condition of the house was pretty good. During his initial visit, plaintiff opened the drop-down attic stairs, went up the stairs, and looked into the attic. He stated the attic stairs looked in good shape other than the fact the bottom step was missing. He further stated they did not feel “rickety” when he used them. At some point, plaintiff told Ms. Parigi that she needed to replace the attic stairs because the bottom step was missing, but he did not advise her that the stairs had to be replaced or fixed before he could do the necessary electrical work.

1 7Ms. Parigi testified that, before plaintiffs accident, she had specifically asked Mr. Kimbrough, the sheetrock worker and painter, to replace the attic stairs. However, she stated the purpose of replacing the stairs was cosmetic and had nothing to do with their stability. She explained the stairs were not pretty and she wanted the plywood to match the new molding in the house. Ms. Parigi stated that she had noticed the bottom step was missing during one of her inspections of the house.

Plaintiff worked at the house for seven to eight days prior to his accident. In the three days prior to his accident, plaintiff went into the attic using the attic stairs several times a day. He stated several other people also used the attic stairs. Plaintiff testified the stairs never felt unsafe or rickety and he did not have any problems with any of the rungs. On the day of his accident, plaintiff went up and down the attic stairs six times. He stated the stairs did not feel insecure and, in fact, stated the rungs felt good.

When the accident occurred, plaintiff was going up the attic stairs. He testified the third or fourth step broke; specifically, he explained the rung pulled out of the slots. Ms. Parigi stated she saw the stairs after plaintiffs accident and observed the third rung was broken, or hanging. She testified the stairs were replaced approximately one week later and the broken stairs were hauled away with the trash.

Based on these facts, we find plaintiff cannot prove that Fresh Start knew or should have known of the allegedly defective condition of the attic stairs. Plaintiff seems to suggest Fresh Start should have had the property inspected and, thus, should have known the attic stairs were defective. However, we find nothing in the statutes or jurisprudence that suggests a homeowner must hire an expert to inspect a house before purchasing and renovating it: Further, we do not find an | ¿inspection of the house would have revealed any defect in the attic stairs. Plaintiff and other workers used the attic stairs numerous times in the days before and on the day of his accident without incident and without any indication there were any problems with the stairs. See Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 05-1285 (La.App. 3 Cir. 4/12/06), 928 So.2d 703, 707, writ denied, 06-1120 (La.9/1/06), 936 So.2d 206, wherein the Third Circuit affirmed summary judgment where a rung on a ladder gave way after finding there was no indication the rung was defective in any way, plaintiff had used the ladder without incident on several occasions before the accident, and there was no evidence to suggest an inspection several days prior to the accident would have exposed the non-apparent defect.

Fresh Start began renovations within one week of buying the house. Ms. Parigi was aware the bottom step of the attic stairs was missing. She indicated she learned at the act of sale that the step had been broken by the prior owner, who was in his 60s, when he was a little boy. However, plaintiffs injury did not occur as a result of the missing bottom step and there were no indications of any problems with the remaining attic steps. The attic stairs had been repeatedly used without incident prior to plaintiffs accident. Plaintiff himself testified that the stairs were not “rickety,” and that he felt safe using the stairs. Based on this evidence, plaintiff cannot show that Fresh Start knew or should have known of any defect in the attic stairs.

Further, we cannot say the attic stairs constituted a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Plaintiff was working in a house that was undergoing major renovations. The dilapidated condition of the house was obvious to everyone. Ms. Parigi described the house as having exposed beams and | flrotted insulation. Plaintiff noted the wood in the house was brittle from old age. The risk of harm presented by old attic stairs in a dilapidated house is obvious and easily avoidable. Plaintiff himself testified he had ladders in his truck that he could have used for attic access.

In his motion for new trial and his appellate brief, plaintiff argues the theory of res ipsa loquitur applies to allow an inference of negligence. The doctrine of res ipsa loquitur permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury. The doctrine merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030 (La.9/5/07), 966 So.2d 36, 41-42.

This doctrine is only applicable in cases where the plaintiff uses circumstantial evidence alone to prove negligence by the defendant. Id. at 42. This is not the case in the instant matter. Plaintiff presented direct evidence including his testimony of the condition of the stairs, his eyewitness account of how the accident happened, and Ms. Parigi’s testimony as to the condition of the stairs. This case is not a “circumstantial evidence only” case. Thus, the doctrine of res ipsa loquitur is not applicable.

Conclusion

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Fresh Start Properties, LLC, and its insurer, State Farm Fire and Casualty Co., is affirmed.

AFFIRMED

      . According to defendants, the deposition transcript misspelled Lori Parigi's name as "Lari Parigar.”


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cornell PATTERSON.
    No. 11-KA-158.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Cornell Patterson, was convicted of theft of goods valued at $500.00 or more, a violation of LSA-R.S. 14:67.10, and sentenced to five years imprisonment at hard labor. After defendant stipulated to a multiple bill alleging that he was a second felony offender, his original sentence was vacated, and he was sentenced to five years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals, alleging that there was insufficient evidence to support his conviction.

The following was adduced at trial. On December 27, 2009, at approximately 8:00 p.m., Gary Levron was working as a Wal-mart asset protection person in the store when he became suspicious of an individual, who he identified in court as defendant. Mr. Levron testified that he noticed that defendant was looking around a lot and “playing” with his clothing (under his shirt and undoing his belt buckle), while close to the liquor aisle. Knowing liquor is a commonly stolen item, Mr. Levron began observing him. Mr. Levron testified that he | ^observed defendant select some liquor bottles and then put two of the bottles underneath his shirt and place a few more bottles inside of a blue tote. At the time, the lid was off of the tote. The tote was inside of the basket of the motorized cart that defendant was riding on.

Mr. Levron followed defendant into the shoe area of the store and watched defendant select a pair of work boots from the shelf. He testified that he observed defendant put the boots between his feet on the cart. According to Mr. Levron, defendant then went to the clothing area and selected some Saints jerseys, a sweater, and some t-shirts. He put these items in the blue tote and then placed the top on the tote. Defendant then passed two checkout lines and exited -the store through the front doors.

Mr. Levron approached defendant after he had completely exited the store, in accordance with the policy of Walmart. He explained to defendant that he was a Wal-mart associate and that he needed to speak with him about merchandise in his possession. Defendant continued to ride off in the cart and Mr. Levron was forced to turn the cart off. Mr. Levron tried to get defendant to go inside of the store. A detail officer, who was on duty, was outside at the time. Mr. Levron called the officer and notified him of defendant’s actions. The officer arrested defendant, and defendant was brought inside of the store.

Merchandise was recovered from defendant and was given to the Customer Service Manager, who was able to get a total count of the merchandise in his presence. Also, a receipt of the goods, which included the prices that were associated with the goods, was made. Mr. Levron was present at the time, but he was not allowed to use the register. He explained that using the register was in conflict with what he did. The receipt of the merchandise was photographed, and the photograph was presented at trial as State’s Exhibit 1. The date on the receipt |4was December 27, 2009. The receipt included a list of the things recovered from defendant and next to each item was a total for the item. The receipt also included a total amount for the value of the merchandise, which he believed was $645.00. Mr. Levron testified that the photograph was an accurate depiction of the receipt that was made from the register in his presence. Mr. Levron did not bring to trial a photocopy of any of the prices or UPCs from the items.

State’s Exhibit 1, the photocopy of the receipt of goods, reflects that there were 24 items and the subtotal without tax was $600.45 and the total including tax was $652.99. The receipt reflects the price of each item as well as a general description of the item. The general descriptions included the following: “work boot,” “Jack Daniels,” “Malibu 1.75L,” “Skyy Vodka,” “hoodie,” “jersey,” “t-shirt,” and “tote box.” The receipt also reflects the quantities of the items-there were three bottles of Jack Daniels, six hoodies, eight jerseys, and three t-shirts.

Photographs were also presented of the items that were taken as State’s Exhibits 2 through 5. Mr. Levron explained that the photographs were taken inside of an office inside of the store where defendant was detained. He testified that the photographs were accurate depictions of the items that were recovered from defendant.

In his allegation of error, defendant argues that the State failed to prove the value of each item and that the total value of the items was $500.00 or more. As such, he contends that the evidence as to the value of the goods was insufficient and his conviction must be set aside. Defendant argues that Mr. Levron was not familiar with the registers and the individual who scanned the items was not called to testify. He concludes that it is possible that there could be some discrepancy with the items scanned of which Mr. Levron has no knowledge. He also contends that Mr. Levron could not offer testimony from personal knowledge as to the value | sof any of the individual items, nor whether the value of the combined items reached the requisite amount of $500.00. He contends that the State failed to produce the items themselves, as well as any UPCs or price tags for the items.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory |fiexplanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

Defendant was convicted of theft of goods valued at $500.00 or more in violation of LSA-R.S. 14:67.10. Theft of goods is defined in LSA-R.S. 14:67.10(A) as “the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.” This subpart further provides that “[a]n intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essentialf.]” LSA-R.S. 14:67.10(A). Such intent may be inferred when a person intentionally conceals, on his person or otherwise, goods held for sale. LSA-R.S. 14:67.10(A)(1).

Therefore, in order to establish defendant’s guilt for this crime, the State was required to prove beyond a reasonable doubt: (1) that defendant misappropriated or took; (2) a thing of value; (3) which is held for sale by a merchant; (4) either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations; and (5) that defendant had the intent to deprive the merchant permanently of that which is the subject of the misappropriation or taking. State v. Green, 02-883 (La.App. 5 Cir. 1/28/03), 839 So.2d 286, 288, writ denied, 03-0848 (La.10/31/03), 857 So.2d 474. In addition, the State was required to prove the value of the stolen property, since the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen goods. State v. Banks, 05-830, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1059, 1062. Theft is a crime of specific 17intent. Banks, supra. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1).

Defendant’s sole argument is that the State failed to present sufficient evidence of the value of the goods allegedly taken. We find this argument to be without merit, as the State presented adequate proof for the jury to find the value of the goods taken by defendant beyond reasonable doubt.

In the present case, the State presented evidence to support the value element of the offense by means of the photographs of the receipt and merchandise, as well as the testimony of Mr. Levron, who watched as defendant concealed the items and then left the store without paying for them. Mr. Levron testified that the merchandise that was recovered from defendant was given to the Customer Service Manager. He testified that in his presence, the manager established a total count of the merchandise and then prepared a receipt for the items. The State presented a photograph of the receipt that reflected a description of the items taken by defendant and their prices, which totaled an amount over $500.00. Mr. Levron identified the photograph as an accurate depiction of the receipt that was made from the register in his presence and further testified that the receipt included a list of things recovered from defendant and included the prices that were associated with the goods. The accuracy of the prices printed on the receipt from the register was uncontrovert-ed.

Although Mr. Levron was present when the receipt was prepared, he testified that he did not prepare the receipt himself because he was not allowed to use the register. On appeal, defendant contends that Mr. Levron was not the individual who scanned the items and the person who actually scanned the items 18was not called to testify. As such, defendant concludes that it is possible there could be some discrepancy with the items scanned in which Mr. Levron has no knowledge. This speculative argument is made without any legal support by defendant. He cites no legal support that the person who scanned the items, in Mr. Levron’s presence, was required to testify as to the prices of the items scanned, especially when the prices are reflected on the receipt presented at trial.

In addition, the State presented photographs of the items recovered from defendant, identified by Mr. Levron. Defendant also suggests that the physical items should have been presented at trial for Mr. Levron to identify the items retrieved from defendant and to allow the jury to add up the prices of the merchandise retrieved. In addition, defendant challenges the photographs by suggesting that they did not show the items of clothing, individually. Again, defendant offers no legal support for this argument.

The evidence presented by the State on the value of the items taken was uncontroverted. When presented with this evidence, the jury reasonably could have found that the State proved the value of the items taken by defendant. Mr. Levron was the sole witness who testified in this matter. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a conviction. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. Id.

Accordingly we find that the evidence presented was sufficient to support defendant’s conviction of thefts of goods valued over $500.00 in violation of LSA-R.S. 14:67.10.

|9We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following which require our attention.

The multiple bill commitment reflects that defendant “pleaded GUILTY” and was sentenced under the multiple bill statute. However, this commitment fails to reflect defendant’s specific status as a second felony offender. The transcript reflects defendant stipulated that he was a second felony offender. Since the transcript correctly states that the defendant was found to be a second felony offender, this Court hereby remands this matter with instructions to the trial court to correct the commitment to reflect that defendant was sentenced as a second felony offender. See State v. Alvarez, 08-558, p. 8 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018, 1023. Also, we direct the district court to make the entries in the minutes reflecting these changes and we direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

For the above discussed reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED AND REMANDED


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Kevin S. PERKINS, Sr.
    No. 11-KA-255.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis-Appellate Counsel, Ernest Chen-Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Appellant, Kevin S. Perkins, Sr.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|j.On appeal, defendant seeks review of his convictions and sentences for molestation of a juvenile and aggravated incest. For the following reasons, we affirm.

Facts and Procedural History

Because the instant convictions were obtained pursuant to guilty pleas without a trial and minimal pre-trial hearings, the record contains minimal facts about the offenses. However, the record reflects that, between September 27, 1994 and September 26, 2000, defendant, who was born on October 22, 1959, committed acts, which included inappropriate touching of the breasts and vagina, vaginal intercourse, and execution of oral sex, against a minor female, who was born on September 27,1982.

On March 17, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin S. Perkins, Sr., with molestation of a juvenile, in violation of La. R.S. 14:81.2 for acts committed between September 27, 1994 and September 26,1999, against the minor victim, who had not reached |sthe age of seventeen years. The next day, March 18, 2010, the State amended the bill of information, adding one count of aggravated incest, in violation of La. R.S. 14:78.1 for acts committed between September 27, 1999 and September 26, 2000, against the minor victim, who had not reached her eighteenth birthday.

That day, defendant entered a plea of not guilty to both charges.

On October 26, 2010, defendant filed a motion to quash the bill of information contending that the bill should be quashed because the State failed to institute prosecution with the prescriptive period allowed by law. That same day, the court heard and denied the motion to quash. Thereafter, defendant withdrew his pleas of not guilty and tendered pleas of guilty, pursuant to State v. Crosby, reserving his right to seek appellate review of the denial of his motion to quash. After the defendant waived the statutory sentencing delays, the trial judge sentenced defendant to ten years at hard labor for molestation of a juvenile and to sixteen years at hard labor for aggravated incest, concurrent.

On October 27, 2010, defendant filed a motion for appeal, seeking review of the trial court’s denial of his motion to quash, which was granted on November 23, 2010. This appeal follows.

In his sole assignment of error, defendant argues that the trial court erred in denying his motion to quash because, pursuant to La.C.Cr.P. art. 532(7), the charges should have been quashed due to the fact that the prescriptive period for institution of the prosecution had prescribed. Specifically, defendant contends that the amendments to the relevant code articles, which extended the prescriptive period for institution of prosecution, cannot be retroactively applied to his case because they violate the prohibition against ex post facto laws.

|4In response, the State argues that the amendments extending the prescriptive period do not violate the prohibition against ex post facto laws because the extensions in question were enacted prior to the accrual of the original prescriptive period.

In State v. Ferrie, 243 La. 416, 144 So.2d 380, 384 (1962), which was abrogated on other grounds by State ex rel. Olivieri, v. State, 00-0172 (La.2/21/01), 779 So.2d 735, the Louisiana Supreme Court stated as follows:

[I]n the absence of a statute of limitations, the State retains the right to prosecute for crimes indefinitely. But when a right of grace has been extended, the State relinquishes the right to prosecute once the statute of limitations has run; until it does run, the State’s right to prosecute is retained and may be extended at the will of the State.

With regard to the timeliness of the institution of prosecution for molestation of a juvenile, La.C.Cr.P. art. 571.1, which was enacted by Acts 1993, No. 592, § 1, effective June 15, 1993, originally provided, in pertinent part:

The time within which to institute prosecution of the following sex offenses: ... molestation of a juvenile (R.S. 14:81.2) ... which involves a victim under seventeen years of age ... shall be ten years. This ten year period begins to run when the victim attains the age of seventeen.

Acts 2001, No. 533, § 1; effective August 15, 2001, amended La.C.Cr.P. art. 571.1, to add the offense of aggravated incest and amended the date that the prescriptive period commences to the victim’s eighteenth birthday.

In the instant case, defendant pled guilty to molestation of a juvenile for acts against a person under seventeen years old committed between September 27, 1994 and September 26, 1999. At the close of that five-year period, the version of La.C.Cr.P. art. 571.1 in effect provided that the State had ten years from the date | sthe victim reached the age of seventeen to institute prosecution for molestation of a juvenile. In this case, the victim turned seventeen on September 27, 1999. Thus, under the version in effect on that date, the State had until September 27, 2009, to institute prosecution of this offense.

However,.by Acts 2001, No. 533, effective August 15, 2001, well within the prescriptive period in effect for the charged offense, the legislature amended La. C.Cr.P. art. 571.1 to commence the prescriptive period on the day that the victim reaches the age of eighteen. In our case, the victim turned eighteen on September 27, 2000. Under the amended version of the law, the State had until September 27, 2010, to institute prosecution.

Here, the State instituted prosecution of this defendant for molestation of a juvenile by a bill of information filed on March 17, 2010, well within the time limitation allowed by La.C.Cr.P. art. 571.1. Accordingly, we find no error in the trial court’s denial of defendant’s motion to quash the bill of information with respect to molestation of a juvenile. This assignment lacks merit.

With regard to the timeliness of the institution of prosecution for aggravated incest, La. R.S. 14:78.1(D) provided: “A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.” La.C.Cr.P. art. 572 originally provided

No person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
(2) Four years, for a felony not necessarily punishable by imprisonment at hard labor; ...

lfiIn the instant case, defendant pled guilty to aggravated incest for acts against a person under eighteen years old committed between September 27, 1999 and September 26, 2000. At the close of that one year period, La.C.Cr.P. art. 572 allowed the State four years, or until September 26, 2004, to institute prosecution of aggravated incest.

However, prior to the running of that prescriptive period, the legislature by Acts 2001, No. 533, § 1; effective August 15, 2001, amended La.C.Cr.P. art. 571.1, to add the offense of aggravated incest and moved the date that prescription began to run to the date that the victim reaches eighteen years of age. At this point, the time limitation for institution of both offenses was identical. Thus, as for the charge of molestation of a juvenile, the State had ten years from the date that the victim attained the age of eighteen, or until September 27, 2010, to institute prosecution for aggravated incest.

Here, the State instituted prosecution against this defendant for aggravated incest by bill of information filed on March 18, 2010, well within the time limitation allowed by La.C.Cr.P. art. 571.1. Accordingly, we find no error in the trial court’s denial of defendant’s motion to quash the bill of information with respect to aggravated incest. This assignment lacks merit.

As always, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920. We note that the record does not reflect that the trial judge complied with La. R.S.14:78.1(E) when sentencing this defendant for aggravated incest. That statute provides as follows:

(1) In addition to any sentence imposed under Subsection D, the court shall, after determining the financial resources and future ability of the offender to pay, require the offender, if able, to pay |7the victim’s reasonable costs of counseling that result from the offense. [Emphasis added.]

The record does not reflect that the trial judge complied with this statute. The failure to comply with La. R.S. 14:78.1(E) warrants a remand to ensure compliance with the statute. See, State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 214-15; State v. Bolden, 04-1000 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 450, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279.

Additionally, the record does not reflect that this defendant was notified of Louisiana’s sex offender registration requirements in accordance with La. R.S. 15:540, et seq. Both of defendant’s convictions are defined as sex offenses by La. 15:541(24)(a). La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration and notification requirements. The failure to provide this notification is patent error, which warrants remand for written notification. See State v. Gaddis, 07-395 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, 28, writ denied, 08-0156 (La.10/10/08), 993 So.2d 1277; State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213; State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-67.

Accordingly, this matter is remanded to the trial court for compliance with La. R.S. 14:78.1(E) and 15:543(A). In all other respects, defendant’s convictions and sentences are affirmed.

AFFIRMED; REMANDED

      . It is undisputed that defendant is more than two years older than the victim. In fact, defendant is 22 years, 25 days older than the victim. During the time period reflected in the bill of information, the victim's age ranged from 12 to 18.

      . 338 So.2d 584 (La.1976).

      . In addition, on the same day, in case number 01-3876, defendant pled guilty to issuing worthless checks in violation of La. R.S. 14:71 and received a concurrent one-year sentence. That case is not part of this appeal.

      .Finally, by Acts 2005, No. 186, § 1, effective August 15, 2005, the Louisiana Legislature again amended La.C.Cr.P. art. 571.1 to extend the time within which the State has to institute prosecution for many sex offenses which involve victims under eighteen years of age, including molestation of a juvenile or a person with a physical or mental disability (La. R.S. 14:81.2) and aggravated incest (La. R.S. 14:78.1), to thirty years, which begins to run when the victim attains the age of eighteen. This is the law in effect as of the date of this opinion.

      . Under the most recent amendment of La. C.Cr.P. art. 571.1 the time limitation for instituting prosecution has been extended to thirty years. Therefore, technically, in this case, the State would have until September 27, 2030, to institute prosecution against this defendant for molestation of a juvenile.

      . As noted in fn. 5, the most recent amendment to La.C.Cr.P. art. 571.1 gives the State thirty years to institute prosecution against a defendant for sexual offenses against a minor. Therefore, technically, in this case, the State would also have until September 27, 2030, to institute prosecution against this defendant for aggravated incest.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Roger L. RICHARDS.
    No. 2011-KA-0349.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Brad Scott, Assistant District Attorneys, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

Ijn this criminal appeal, the defendant, Roger Richards, raises two issues. First, he contends that the evidence is insufficient to support his conviction for aggravated rape. Second, he contends that the district court’s imposition of the mandatory sentence of life without parole is unconstitutionally excessive because he was a seventeen year old juvenile at the time of the offense. In support, he cites Graham v. Florida, 560 U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). For the reasons that follow, we affirm Mr. Richards’ conviction and amend his sentence with instructions.

STATEMENT OF THE CASE

On July 17, 2008, the State charged Mr. Richards with aggravated rape by vaginal penetration of a victim under the age of thirteen, a violation of La. R.S. 14:42. On August 13, 2008, Mr. Richards was arraigned and pled not guilty. The State filed various pre-trial motions; the defense filed none. In April 2009, Mr. Richards was ordered to provide saliva samples.

|2In October 2010, a three-day jury trial was held; and Mr. Richards was found guilty as charged. On November 16, 2010, the district court denied the defense motions in arrest of judgment and for a new trial. On the same date, the district court sentenced Mr. Richards to life without benefit of probation, parole, or suspension of sentence. The district court denied the defense motion to reconsider the sentence. This appeal followed.

STATEMENT OF THE FACTS

In October 2007, the eight year old victim, L.A., whose date of birth is April 26, 1999, lived on Thalia Street in New Orleans, with her mother, T.A., and her two uncles, Christopher and Nicholas Joseph. Mr. Richards lived next door. On the date of the incident, L.A. was at home with her cousin Ray Allen when Mr. Richards came over to her house. Mr. Allen was working on the computer, which was located in the hallway; and L.A. was sitting on the sofa. Mr. Richards sat next to L.A. on the sofa. He asked her to go put on a DVD, which would have required her to go to her bedroom where the DVD player was located. According to L.A., she did not want to go to her bedroom because she knew what would happen. When she refused to go to her bedroom on her own, Mr. Richards dragged her to the bedroom and locked the door. He then removed the Disney jeans that L.A. was wearing, pulled down his pants, and got on top of her. According to L.A., something got on her Disney jeans. Fearing that her mother would get mad at her | ¡¡for staining her jeans, she took off her jeans and hid them in a plastic Wal-Mart bag on top of her closet.

L.A., who was eleven at the time of the trial, testified that she did not tell anyone what happened until seven months later when her mother found the jeans. In response to her mother’s questions regarding what happened, L.A. testified that she told her mother that “Roger” had “raped” her. She further testified that she knew Roger Richards from when she was small, that he was friends with her uncles, and that he would sometimes hang out with her uncles at her house. She still further testified that she understood the difference between the truth and a lie. L.A. stated that she told Dr. Adrienne Atzemis, the child abuse pediatrician, the truth about what Mr. Richards had done to her. In court, she identified a picture depicting his actions that she had drawn for Dr. Atzem-is. She also identified both her jeans and Mr. Richards.

T.A., LA’s mother, corroborated L.A.’s testimony regarding first learning about the incident seven months later when she found L.A.’s blood-stained Disney jeans. On April 16, 2008, T.A. was cleaning the house when she found the jeans. She confronted L.A. and asked her if she had started her menstrual period. L.A. responded in the negative. T.A. next asked L.A. if somebody had touched her. L.A. responded “Roger.” T.A. then asked L.A. when this had occurred. L.A. responded that it happened on the same day she told her mother that she was burning between her legs. (On that day, October 3, 2007, T.A. took L.A. to Children’s Hospital where she was treated for a urinary tract infection.)

|4On April 16, 2008, immediately after learning what had occurred with Mr. Richards, T.A. brought L.A. to Children’s Hospital. At the hospital, T.A. and L.A. met with New Orleans Police Department (“NOPD”) Detective Journay Ross. T.A. gave L.A.’s blood-stained Disney jeans to Detective Ross. In the emergency room, the treating physician documented in the “HISTORY” portion of the “Emergency Department Record” that L.A. had “admitted to [her] mother that ‘Roger’ had touched her b/t [between] her legs and stuck his private part inside of her & that he was on top of her.” The doctor further documented that L.A. told her mother that Roger had done this on “that day when between my legs was burning and you brought me to the hospital.” The doctor still further documented that L.A. previously was seen at Children’s Hospital on October 3, 2007. On that date, she was diagnosed with a urinary tract infection, prescribed Bactrim, and sent home.

The hospital records further reflect that during the April 16, 2008, hospital visit L.A. was tested for sexually transmitted diseases and tested positive for one — chlamydia. On that visit, L.A. also was referred to see Dr. Atzemis.

Dr. Atzemis, who was qualified as an expert in child abuse pediatrics, testified that on May 7, 2008, she met with and examined L.A. Dr. Atzemis testified that her routine is to speak with the victim before conducting a physical exam so that she can determine where to focus her attention. Dr. Atzemis testified that when she spoke with L.A. the child was hesitant to talk about what Mr. Richards had done to her and that the child would sometimes draw pictures depicting his actions. Dr. Atzemis identified a blow-up of one of the pictures that |5L.A. had drawn for her. Dr. Atzemis stated that L.A. told her that Mr. Richards had sexually abused her on more than one occasion. Dr. Atzemis further stated that L.A. described the following “multiple forms of contact” by Mr. Richards: he had her place her mouth on his private part, he fondled her, and he stuck his private part in her behind. Dr. Atzemis still further stated that L.A. told her that Mr. Richards had white stuff coming from his private part that landed on L.A.’s pants when he was lying on top of her.

After talking with L.A., Dr. Atzemis conducted a physical exam of her. Although L.A.’s physical exam was normal, Dr. Atzemis explained that it was common to find no physical evidence of sexual abuse. She noted that this was especially true in this case given the length of time between the alleged abuse and the physical exam. She also noted that any tear that might have occurred would have healed quickly.

Dr. Atzemis tested L.A. and confirmed that she no longer had vaginal chlamydia. Discussing L.A.’s prior diagnosis of chlamydia, Dr. Atzemis explained that chlamydia is a sexually transmitted disease that is first detected through a urine test. To confirm the diagnosis, a culture is taken from the vagina. Dr. Atzemis further explained that chlamydia could only be contracted when the infected area comes in direct contact with infected body fluids, such as semen. Dr. Atzemis thus concluded that L.A. had been sexually abused and that her contacting of chlamydia was consistent with intimate sexual contact.

|r,Jodie Clements, who was qualified as an expert in the field of serology, testified that she was employed by the NOPD as a serologist and a criminalist. Ms. Clements testified that she tested L.A.’s Disney jeans and confirmed that the stain on them tested positive for seminal fluid and blood. She, however, was unable to confirm the presence of sperm. Based on her findings, she forwarded the samples for DNA testing.

Shana Mills, who was qualified an expert in DNA analysis, testified that she was employed as a forensic biologist at Bode Technology in Virginia. Ms. Mills confirmed with a reasonable degree of scientific certainty that Mr. Richards was the contributor of the sperm found on L.A.’s jeans. Quantifying the certainty, she testified that the chance the contributor of the sperm was someone other than Mr. Richards was one in eighty-three quintillion among the United States African-American population.

Pursuant to La. C.E. art. 412.2, the State, over the defense’ objection, presented the testimony of K.P., who was born on July 2, 1993. K.P. testified that |7in March 2008 Mr. Richards forcibly raped her. Mr. Richards was convicted of raping K.P. in an unrelated proceeding. K.P. testified that she did not know L.A.

In his defense, Mr. Richards called three witnesses: Detective Ross; Christopher Joseph, L.A.’s uncle; and Jasmine Williams, Mr. Richards’ former girlfriend.

Detective Ross, when called by the defense, testified that she could not recall without reviewing her report if Ray Allen, L.A.’s cousin, was in the house at the time of the incident in question. Likewise, she testified that if she questioned Ray Allen about the incident it would have been listed in her report. On cross-examination, Detective Ross testified that she took the bucal swab from Mr. Richards in court pursuant to a court order.

Christopher Joseph, L.A.’s uncle, testified that Mr. Richards would sometimes come over to their house with his girlfriends; however, he had no knowledge of Mr. Richards ever having sex with his girlfriends while he was there. Mr. Joseph further testified that there was a computer in the hallway some distance from L.A.’s bedroom and that the door to her bedroom was not visible from the spot where the computer was located. Mr. Joseph still further testified that he left the house when only L.A. and Mr. Richards were present. Mr. Joseph compared Mr. Richards to a brother.

Ms. Williams testified that she dated Mr. Richards for about three months in 2007. According to Ms. Williams, she and Mr. Richards had sex more than once at his cousin’s house on a bed that had clothes strewn all around.

1 ¡¿DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals one. Mr. Richards’ motions for new trial and in arrest of judgment were both denied on November 16, 2010; and he was sentenced on that same day. There is no indication that Mr. Richards waived the mandatory twenty-four hour delay between the denial of his motion for new trial and sentencing as provided by La.C.Cr. P. Art. 873. Nonetheless, the failure to observe the delay mandated by Article 873 is harmless error when the sentence imposed is a mandatory one. State v. Seals, 95-0305 at p. 17 (La.11/25/96), 684 So.2d 368, 380 (noting that “[djelay or no delay, the sentence the judge was required to impose would have been the same.”) Such is the case here. Thus, the district court’s failure to observe the statutory delay is harmless error. Regardless, as discussed elsewhere, we find the sentence must be amended with instructions in light of the Supreme Court’s holding in Graham, supra.

ASSIGNMENT OF ERROR NUMBER 1

Mr. Richards’ first assignment of error is that the evidence was insufficient to convict him of aggravated rape. In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Louisiana Supreme Court set forth the following standard for reviewing a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all |3of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Cummings, 668 So.2d 1132 (La.1996); State v. Rosiere, 488 So.2d 965, 968 (La.1986). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La. 1984).

In this case, Mr. Richards was convicted of aggravated rape. Aggravated rape is defined, in pertinent part, to mean a rape committed where the vaginal intercourse is deemed to be without the lawful consent of the victim because the victim is under the age of thirteen years. La. R.S. 14:42(A)(4). Rape is defined, in pertinent part, as vaginal sexual intercourse with a female person committed without the person’s lawful consent. La. R.S. 14:41(A). Emission is not necessary; and any sexual penetration, however slight, is sufficient to complete the crime. La. R.S. 14:41(B). The testimony of the victim alone is sufficient to establish penetration. State v. Hubbard, 97-916, pp. 9-10 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1104.

linMr. Roger contends that the State failed to established penetration, an essential element of the crime of aggravated rape. He points out that the indictment charged a violation by “vaginal intercourse.” He emphasizes that the only evidence of penetration that the State introduced was the victim’s testimony that Roger “raped” her. He further emphasizes the lack of evidence that the victim, who was eleven years old at the time of trial, knew what the generic term “rape” meant. He contends that this case is indistinguishable from State v. Marigny, 532 So.2d 420 (La.App. 1st Cir.1988).

In Marigny, supra, the appellate court found insufficient evidence to establish sexual intercourse when a fifteen year old girl, referred to as Ms. “A”, testified only that she and the defendant “had sex.” Marigny, 582 So.2d at 422. The appellate court’s finding was premised on the lack of evidence; the court reasoned that:

The only evidence introduced at trial relating to proof of sexual intercourse consists of Ms. “A” ’s testimony that she and the defendant “had sex” and the testimony of Ms. “A” ’s mother that Ms. “A” made the same statement to her. There was no evidence that Ms. “A” understood the phrase “had sex” to mean sexual intercourse.... Nor was any medical evidence of penetration presented, although it was stated by other witnesses that the alleged victim had been taken to at least two doctors in connection with this.

Marigny, 532 So.2d at 422. Based on its finding that the evidence was insufficient, the appellate court set aside the defendant’s conviction for carnal knowledge of a juvenile and entered the lesser included verdict of attempted carnal knowledge of a juvenile.

In Contrary to Mr. Richards’ contention, the instant case is factually distinguishable from the Marigny ease. L.A.’s testimony that she was raped was not the sole evidence presented by the State of penetration. Although the State may not have established that L.A. understood the meaning of the term rape, it corroborated L.A.’s testimony with medical evidence that vaginal penetration took place. Dr. Atzemis testified that L.A.’s vagina was infected with chlamydia. Dr. Atzemis explained that the only manner in which L.A. could have contracted chlamydia was through intimate sexual contact during which an infected body fluid, such as semen, came into contact with her vagina. Other testimony regarding DNA testing established that the semen found mixed with the blood stain on L.A.’s jeans came from Mr. Richards. Finally, the Children’s Hospital medical records from the April 2008 emergency room visit indicate that the history provided to the examining doctor was that L.A. told her mother that Mr. Richards stuck his private part in her. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all of the essential elements of the offense of aggravated rape by vaginal penetration. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Mr. Richards’s other assignment of error is that his sentence of life without parole is unconstitutionally excessive based on Graham v. Florida, 560 U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), because he was seventeen at the time he | ^committed the crime. He contends that this court should vacate his sentence and remanded this case for resentencing.

In Graham, supra, the petitioner was sentenced to life without parole for an armed burglary committed in connection with a home invasion robbery. The day that the petitioner committed the crime “he was 34 days short of his 18th birthday” and on probation for a prior offense. Graham, 560 U.S. at-, 130 S.Ct. at 2019, 176 L.Ed.2d at-. The petitioner argued that his sentence was excessive under the Eighth Amendment because he was a juvenile at the time of the offense and was one of approximately 109 juveniles in the United States serving life without parole for a non-homicide offense. Agreeing with this argument, the Supreme Court held that the Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, 560 U.S. at -, 130 S.Ct. at 2034, 176 L.Ed.2d at-.

The Supreme Court in Graham adopted a categorical rule prohibiting the imposition of a life without parole sentence for juvenile non-homicide offenders. The Court explained that a categorical rule “is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” Graham, 560 U.S. at -, 130 S.Ct. at 2030, 176 L.Ed.2d at -. The Supreme Court further explained that “[a] life without parole sentence improperly denies -the juvenile offender a chance to demonstrate growth and maturity.” Graham, 560 U.S. at-, 130 S.Ct. at 2029, 176 L.Ed.2d at -. The Supreme Court thus held that a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at -, 130 S.Ct. at 2030, 176 L.Ed.2d at-,

The State contends that the categorical rule enunciated in Graham is not applicable to Mr. Richards’ sentence because Louisiana’s statutory scheme is different from the Florida statutory scheme that was at issue in Graham. The State contends that unlike Florida, which has abolished its parole system, the Louisiana parole system allows Mr. Richards, although sentenced to life imprisonment without benefit of parole, a meaningful opportunity to be released on parole by having his sentence commuted to a fixed number of years, as required by La. R.S. 15:574.4 for prisoners serving life sentences. This process, however, is dependent on an award of clemency by the governor. See Bosworth v. Whitley, 627 So.2d 629, 633 (La.1993)(noting that “[i]n terms of due process, an application for commutation is ‘nothing more than an appeal for clemency,’ and a felon’s expectation that his lawful sentence will be commuted is ‘simply a unilateral hope.’ ”) This process was also available to the petitioner in Graham, yet the Supreme Court necessarily concluded it fell short of providing a “meaningful” or | ¶/‘realistic” opportunity to be released. See Bonilla v. State, 791 N.W.2d 697, 700, n. 2 (Iowa 2010)(noting that “[a]lthough Bonilla could theoretically receive a commutation from Iowa’s governor, the Supreme Court of the United States rejected the ‘remote possibility’ of executive clemency in the cruel and unusual punishment analysis of Graham.”)

Contrary to the State’s contention, we find that the Graham case applies to Mr. Richards’ sentence. He was convicted of aggravated rape, a non-homicide offense, and sentenced to life in prison without parole. Mr. Richards’ life sentence without parole violates the categorical rule enunciated by the Supreme Court in Graham.

The appropriate remedy to satisfy the mandate of the Graham case was recently addressed by the Louisiana Supreme Court in State v. Shaffer, 11-1756, 11-1757, 11-1758 (La.11/23/11), 77 So.3d 939. In Shaffer, the Court granted the consolidated writ applications of three relators who were sentenced to life imprisonment at hard labor following their convictions for aggravated rape when they were all juveniles. The sentence of one of the rela-tors, Michael Dyer, expressly precluded parole eligibility; the sentences of the other two relators did not. The Court found that the sentences of all three relators violated the mandate of the Graham case. The Court reasoned that “the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates [^serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody.” Shaffer, 11-1756, 11-1757, 11-1758 at p. 3, 77 So.3d at 942. Continuing, the Court reasoned that “[t]he state thus may not enforce the commutation provisos in La. R.S. 15:574.4(A)(2) and 15:574.4(B) against relators and all other similarly situated persons.” Shaffer, 11-1756, 11-1757, 11-1758 at pp. 3-1, 77 So.3d at 942. The Court held that the appropriate remedy to satisfy the mandate of Graham was as follows:

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.

Shaffer, 11-1756, 11-1757, 11-1758 at p. 4, 77 So.3d at 943. The Court noted that “[t]he determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole ‘only for the best interest of society, not as an award of clemency.’ ” Id. (citing La. R.S. 15:574.4.1(B)). The Court further noted that providing access to the Board of Parole’s consideration would satisfy the mandate of the Graham case. Id.

Following the holding in Shaffer, we likewise amend Mr. Richards’ sentence to delete the restriction on parole eligibility and to provide instructions regarding access to the Board of Parole’s consideration.

h (¡DECREE

For the forgoing reasons, the defendant’s conviction is affirmed, and his sentence is amended to delete the restriction on parole eligibility. The Department of Corrections is directed to revise the defendant’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department of Corrections is directed to revise defendant’s prison master according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.

CONVICTION AFFIRMED; SENTENCE AMENDED WITH INSTRUCTIONS.

      . For privacy reasons, the initials of the victim and her immediate family are used in this opinion.

      . Louisiana Code of Evidence Article 412.2 provides:
      A.When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
      B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
      C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

      . To protect the victim’s privacy, her initials are used in this opinion.

      . The Supreme Court in Graham did not specify how the states should adjust the sentences of juveniles previously sentenced to life in prison without parole for a non-homicide crime. Instead, the Supreme Court held:
      It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require a State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted on nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

        Graham, 560 U.S. at-, 130 S.Ct. at 2030, 176 L.Ed.2d at-.


author: COOKS, Judge. DECUIR, J.,

text:
    Dennis GARCIA, et ux. v. Anthony STALSBY, et al.
    No. 11-350.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.
    Rehearing Denied Jan. 18, 2012.

      Mark A. Delphin, Delphin Law Offices, APLC, Arthur J. O’Keefe, Lake Charles, LA, for Plaintiffs/Appellees, Dennis and Tana Garcia.
    Bryan D. Scofield, Scofield & Rivera, L.L.C., Lafayette, LA, for Defendants/Appellants, Anthony Stalsby, Venture Transport Logistics, LLC, Venture Transport Logistics Holdings, LLC and Zurich American Insurance Company.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   COOKS, Judge.

11Defendants appeal the trial court’s grant of summary judgment in favor of Plaintiffs on the issue of liability, finding Defendant, Anthony Stalsby, one hundred percent (100%) at fault in causing the motor vehicle accident in question. For the following reasons, we affirm the grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

This lawsuit arose out of a motor vehicle accident that occurred on July 2, 2007 on Louisiana Highway 27, south of Lake Charles, in Calcasieu Parish. On that date, a flat-bed truck driven by Anthony Stalsby rear-ended a pick-up truck driven by Dennis Garcia. Stalsby was returning to Lafayette after hauling a load of hazardous material for Venture Transport Logistics, LLC.

According to Stalsby, he was following the Garcia vehicle for several miles prior to the accident. Stalsby believed he was traveling at the speed limit, and opined that the Garcia vehicle must have been traveling at a similar speed because they remained the same distance apart for quite some time. Stalsby stated he was not tailgating and believed he was traveling at a safe distance behind Garcia’s vehicle.

Stalsby acknowledged just before the accident, he was “messing with something” in the cab of his truck. Stalsby said he could not remember what the item was, but stated he lost control of the item and it dropped to the floor of the cab. At that point, Stalsby looked away from the road to the floor of his cab in an attempt to locate the item. Stalsby maintained he looked down for only a “few seconds,” and when he looked up Garcia’s vehicle was at a stop, preparing to turn onto Lionel DeR-ouen Road. Stalsby did not remember seeing a turn signal activated on Garcia’s vehicle. Stalsby testified he believed, even with looking to the floor right before the impact, he would have had time to stop his vehicle if Garcia had come to a gradual stop rather than an abrupt stop. Stalsby argues this ^alleged abrupt stop in the travel lane of Highway 127 was a contributory factor in causing the accident. Stals-by also alleged there was a skid mark present in the road which was made by Garcia’s vehicle; an indication that he slammed on his brakes rather than coming to a gradual stop. Garcia maintained any skid marks at the scene were made by Stalsby’s vehicle, or were made by his vehicle after the collision occurred.

Dennis Garcia and his wife, Tana, filed a Petition for Damages naming as Defendants: Anthony Stalsby; Venture Transport Logistics, LLC d/b/a Venture Transportation, which employed Stalsby and owned the truck operated by Stalsby; Lexington Insurance Company, Zurich American Insurance Company and Zurich North American Insurance Company which had issued policies of insurance to Venture and/or Stalsby.

On September 10, 2010, the Garcias filed a motion for partial summary judgment, maintaining there were no genuine issues of fact that they were entitled to judgment as a matter of law holding Stalsby was solely at fault in causing the accident, that at the time of the accident Zurich American Insurance Company was the liability insurer of Stalsby with an applicable limit of coverage of five million dollars, and that the vehicle driven by Garcia was insured at the time of the accident and the “no pay, no play” statute, La.R.S. 32:866, does not apply.

The summary judgment hearing was held on October 22, 2010. Initially, the district court denied the motion for summary judgment on the issue of liability. After the parties left the courtroom and the district court took up another unrelated case to issue a ruling, the district court reopened the record on the “Garcia matter.” The district judge noted he had “continued to think about it ... [and] after reconsidering,” granted the motion for summary judgment on the issue of liability finding Stalsby solely at fault in causing the accident. The court specifically noted that because Stalsby admitted he was not looking at the road prior to the accident, | Rhe could only offer speculation that Garcia had abruptly stopped in front of him. The district court also granted summary judgment finding the Zurich American Insurance Company policy applied with limits of five million dollars, and La.R.S. 32:866, the “no pay, no play” statute, does not apply in this lawsuit.

The rulings of the district court on the partial motion for summary judgment pertaining to the issues of insurance coverage have not been appealed. Defendants’ appeal asserts only that the district court’s granting of the motion for partial summary judgment on the issue of liability is in error. They assert the following assignments of error:

1. The district court erred as a matter of law in granting the Garcia’s motion for partial summary judgment on the issue of liability against Defendants.
2. The district court fáiled to follow several fundamental principles governing a motion for summary judgment when he granted summary judgment on the issue of liability.

ANALYSIS

Counsel for Defendants candidly acknowledges that Stalsby’s inattentiveness behind the wheel requires that he be assessed with “significant fault” for the accident. However, Defendants maintain that Garcia’s conduct in allegedly coming to an abrupt stop requires that he be assessed with some, albeit smaller, percentage of fault.

In reviewing a motion for summary judgment, an appellate court “applies a de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). As a general principle, our law |4in Louisiana favors the summary judgment procedure as a vehicle by which the “just, speedy, and inexpensive” determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “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.Code Civ.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A genuine issue is one in which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id. Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3 Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988).

laThe parties have set forth several statutes which they contend set forth the substantive law governing this litigation.

Defendants seek to invoke the application of La.R.S. 32:141, which deals with vehicles stopped on a roadway. It provides in relevant part:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

Although Defendants argue La. R.S. 32:141 is applicable here, we find it is not relevant in this factual scenario. Louisiana Revised Statute 32:141 is “normally applied when drivers leave part or all of their vehicle, disabled or not, protruding onto a highway.” Roger v. Estate of Moulton, 494 So.2d 1226, 1230 (La.App. 3 Cir.1986). We have found no case wherein this provision was applied to a situation where a vehicle is stopped in the roadway while waiting to turn. Although Defendants cite several cases where a turning motorist was hit by a following vehicle, those cases did not apply La.R.S. 32:141 in the liability discussion.

Relevant to the situation here is La.R.S. 32:81(A), which requires that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” Thus, a following motorist involved in a rear-end collision is presumed to have breached this statutory duty. Mart v. Hill, 505 So.2d 1120 (La.1987). A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created oj¿hazard which the following motorist could not reasonably avoid. Cheairs v. State, Department of Trasportation and Development, 03-680 (La.12/3/03), 861 So.2d 536; Menard v. Federated Mut. Ins. Co., 05-85 (La.App. 3 Cir. 6/22/05), 906 So.2d 746; Mccullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La. App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of showing he was not negligent. Menard, 906 S.2d 746.

It is undisputed that Stalsby looked away from the road and down to the floor of his bed prior to impact. When he finally returned his eyes to the road, the collision was unavoidable. Stalsby was negligent, as he admitted, in failing to closely observe the vehicle in front of him and in failing to maintain a safe distance.

As to the alleged fault of Garcia, it was maintained by Defendants that Garcia came to an “abrupt stop.” However, the trial court found Defendants presented no evidence of such action on the part of Garcia and reasoned that Defendants would be unable to meet its burden of proving at trial that Garcia created a hazard which Stalsby could not reasonably avoid. We agree.

The testimony of Stalsby does not even assert that Garcia came to an “abrupt stop.” Stalsby testified that “[he] looked down, [he] looked up and [Garcia] was at a stop in the road.” There is no indication that Stalsby witnessed the method or manner in which Garcia slowed his vehicle. Nor could there be, since Stalsby acknowledged he took his eyes off the road and looked down to the floor of his vehicle. Thus, on the question of whether Garcia abruptly stopped his vehicle, Defendants have failed to produce factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial.

Likewise, Stalsby’s testimony is insufficient to establish a violation of La.R.S. 32:104, which requires a left-turning motorist to signal his intention to turn. Stalsby only testified that Garcia was traveling at a uniform speed when he |7last looked ahead before looking away from the road, and then that Garcia’s vehicle was at a complete stop when he looked up again. Stalsby cannot establish that Garcia failed to activate his blinker because he was not looking at the road as Garcia slowed his vehicle.

The law is clear that motions for summary judgment are favored, and Defendants are not entitled to proceed to a trial on the merits based solely on speculation and/or unsupported arguments. The trial court properly granted summary judgment in this matter.

DECREE

For the foregoing reasons, the trial court’s grant of summary judgment in favor of the Garcias on the issue of liability is affirmed. Costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.

DECUIR, J., dissents and assigns written reasons.

PETERS, J., dissents for the reasons assigned by DECUIR, J.

DECUIR, J.,

dissenting.

|, This appeal presents unresolved factual questions concerning the skid marks found at the accident scene, the lead driver’s use of his turning signal, and the length of time the following driver looked away. Whether the lead driver came to an abrupt stop in violation of traffic laws is also unclear. The testimony on these issues was in conflict and the evidence presented was subjective. The trial court improperly weighed the evidence and made credibility determinations in the context of a summary judgment proceeding. Louisiana law provides for the granting of summary judgment only when the “mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). There is nothing presented thus far in the record before us that shows Garcia is entitled to judgment as a matter of law.

The disputed facts and contested allegations in this case create genuine issues of material fact which should be decided after trial on the merits. In my opinion, this case raises the most fundamental of factual disputes. The lead driver is not entitled to summary judgment, and the trial court’s decision should be reversed. I therefore dissent.