author: CARAWAY, J. STEWART, J.,

text:
    Steven and Melanie PETCHAK, Plaintiffs v. BOSSIER PARISH POLICE JURY, Defendant.
    No. 45,705-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 24, 2010.
    Rehearing Denied Dec. 16, 2010.

      Booth Lockard Politz LeSage, & Odom, L.L.C., Shreveport, LA by Mark W. Odom, for plaintiffs, First Appellants.
    Cook, Yancey, King & Galloway, Shreveport, LA by Kenneth Mascagni, for defendant, Second Appellants.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

_JjThis case concerns leaking underground drainage culverts which were constructed partially within a drainage easement shown to encumber the plaintiffs’ lot on the 1978 plat of their subdivision. As a result of the water flow, the ground beneath plaintiffs’ home has been undermined, causing foundational and structural problems. Arguing that the drainage system falls within the ownership and responsibility of the parish police juiy, the plaintiffs sued the police jury to repair the leaking culverts and to pay for the damages to their home. The police'jury defended the action asserting that no dedication occurred because at the time of the construction and platting of the subdivision, the drainage culverts were not laid and that the later improper installation of the underground drain was unauthorized. Following trial, the trial court ruled that the police jury was neither aware of the defective drainage system, nor did it exercise control over the system, and [?the plaintiffs’ claims were dismissed. For the following reasons, we reverse the trial court’s ruling and remand for further action.

Facts

Plaintiffs, Steven and Melanie Petchak, own a home located on Lot 363 of Country Place Subdivision, Unit No. 5, as shown on the subdivision plat (the “Plat”) recorded in the Bossier Parish conveyance records. The Plat contains sequentially numbered subdivided lots, with the one exception of Lot 363, which is located to the north of Lot 291 and to the south of Lot 292. The Plat makes reference to several drainage easements, two of which are relevant to our discussion: a 25-foot easement, running north to south and located to the west and rear end of Lots 363 and 291, and a 10-foot easement, connecting with the 25-foot easement and running east to west on the north side of Lot 363. The 10-foot easement straddles the boundary between Lot 363 and Lot 292 and extends 5 feet into each lot.

Unit No. 5 of Country Place was created and subdivided by actions in 1977 and 1978. After the landowner/subdivider developed and improved the property and presented preliminary plans for the subdivision, the Bossier Parish Police Jury (“Police Jury”) enacted a “Resolution” dated December 19, 1977, which provides in pertinent part:

BE IT FURTHER RESOLVED that the Bossier Parish Police Jury does hereby accept into the parish road 1 ^system for continuous maintenance the asphalt paved streets and drainage facilities in Country Place Subdivision No. 5.

Following this action, on January 23, 1978, the Plat was recorded in the parish conveyance records. The face of the Plat contains the stipulation that it complies with “ordinance 509 of 1968, Bossier Parish, Louisiana.” Ordinance No. 509 regulates the subdivision of land within Bossier Parish and provides that the owner/subdi-vider “shall submit a preliminary subdivision plan” to the Police Jury that contains “[a]n adequate drainage plan for the proposed subdivision with special reference to low areas where water may collect.” Additionally, under the subheading “Drainage,” Ordinance No. 509 provides for the following:

(1)A right of way sufficient for the construction and maintenance of necessary drainage channels through the proposed subdivision must be dedicated in perpetuity to the Police Jury. No buildings of any kind may be erected upon the drainage rights of way so dedicated.
(2) The Parish Engineer will determine necessary capacity of the facilities proposed by the subdivider for satisfactory disposition of maximum storm run off flows where leveling operations concern drainage ways.
(3) Parish drainage rights of way, boundaries, center lines, widths and proper engineering descriptions shall be shown on plats of proposed subdivisions.

|4Although not specifically enumerated under the section pertaining to drainage, the ordinance also provides that “[a]ll construction work shall be done under the supervision of the parish engineer.”

Additionally, at the same time as the ■ filing of the Plat, a document titled “Protective Covenants, Country Place Subdivision Unit No. Five (5)” was filed by the owner/subdivider which stipulates as follows under the heading “Easements”:

Easements for the installation and maintenance of utilities and/or drainage facilities are reserved as shown on the recorded plat.

The residence on Lot 363 was constructed sometime between 1983 and 1985. The Petchaks purchased the home in April of 1994. At the time of this suit, the configuration of structures and drainage facilities on Lot 363 and Lot 271 are shown by the following survey which was presented into evidence:

|fiIt is clear and uncontested that the residential dwelling is situated just outside of the 10-foot easement straddling the north boundary of Lot 363.

In 1995, plaintiffs noticed the development of a sinkhole in their backyard, originating at the north base of their home’s foundation. Concerned about the problem, the Petchaks contacted the previous owner of their house, Theresa Kruse, who revealed that she experienced a similar problem while living in the residence. In 1992, Kruse observed a sinkhole in the backyard, located adjacent to the back patio. She called the Police Jury, who responded by filling in the sinkhole on two different occasions, first with standard dirt and later with concrete. Kruse experienced no further problems, but was told to be on the lookout for additional sinkholes. Kruse recommended that the Petchaks contact the Police Jury to correct the problem.

The Petchaks subsequently notified the Police Jury, which apparently responded sometime in 1995 by filling the location in with dirt. Ten years later, in 2005, the Petchaks began to notice- problems with their home, including broken windows, sticking doors, damaged flooring, walls and woodwork and other structural problems concentrated along the northern end of their house. Additionally, the presence of a second sinkhole appeared | ¿within close proximity, approximately 1 to 1-1/2 feet, to the previously filled sinkhole. The Petc-haks then retained the services of Sammie Craft, a civil engineer, who inspected the home on July 29, 2005. Craft recognized that an underground conduit or drainage culvert was pulling soil into the drain system and causing settlement. He recommended that the Petchaks first fix the underground culvert system before attempting to repair their home’s foundation.

The Petchaks once again informed the Police Jury of the situation and in January of 2006 they met with Butch Ford, the parish engineer, to discuss possible solutions. Ford offered to fix the culverts, but only in the event that the Petchaks sign a release for any past and future damages associated with the problem. The Petc-haks refused to sign the waiver.

Thereafter, on July 12, 2006, the Petc-haks filed this suit asserting that the Police Jury was liable for damages caused to their home as a result of the defective drainage system. The petition alleged that the Police Jury maintained custody and control over the culvert system by virtue of its rights obtained by the subdivision’s dedication to the public of all streets and drainage. Plaintiffs prayed for the repair of both the drainage system and their home. The Police Jury answered, denying responsibility for the drain and pleading the provisions of La. R.S. 9:2800 as the measure of any claim |7for negligence. By way of reconvention, the Police Jury complained that the plaintiffs’ conduct of maintaining structures and performing work over or near the drainage system caused damage to the culverts and made any effort to maintain or repair the system impossible or substantially more burdensome. The Police Jury thus claimed that it was entitled to “recover from original petitioners the cost and expense of steps necessary to maintain the system and to change the drainage system, including but not limited to the cost and expense of plugging, laying, and/or moving the drainage pipe or system.” The prayer provided that:

[T]here be judgment in favor of the BOSSIER PARISH POLICE JURY and against STEVE PETCHAK and MELANIE PETCHAK, awarding the BOSSIER PARISH POLICE JURY the cost of repair and movement of the drainage system, at plaintiffs cost.

The Police Jury additionally filed an exception of prescription asserting La. R.S. 9:5624.

Prior to the filing of suit, the exact location of the subterranean culvert system as depicted on the above survey was undetermined. Through an underground survey procedure, it was discovered that 18-inch reinforced concrete culverts originate from a storm drain located on the adjacent Lot 291 and run in a northerly direction through the 25-foot drainage easement onto Lot 363. The drain then cuts across a portion of the northwest rear | ^corner of the Petchaks’ lot, outside of the servitude, before entering the 10-foot easement running east along the northern edge of plaintiffs’ lot adjacent to the residence. The pipe then crosses a portion of the Petchaks’ front yard, again outside the servitude, before entering the public storm drain underlying Glendale Lane.

The camera used in the underground survey also revealed that the pipe was not constructed in accordance with good engineering practices, as several 45 degree turns in the concrete culverts were identified. According to expert witnesses, any time there is a change in direction in a concrete culvert system, a separate junction box is required to assure the stability of the joint and to prevent any separation of concrete. Because the instant “snake” pipe did not contain such junction boxes, experts believed either water was escaping from the culvert or dirt was infiltrating into the system, causing destabilization of the soil surrounding the drain. The drain in the Petchaks’ backyard was likely bedded in a granular fill, as opposed to the typical clay that was normally used in Country Place. This material is described as “quick to erode.” The soil from underneath the Petchaks’ house accumulated anywhere from six to eight inches deep inside the culverts. The loss of this “support soil” from under the home’s foundation caused the large two or |flthree foot “void” underneath the Petchaks’ house, resulting in approximately six inches of downward settlement.

A bench trial was conducted over a three-day period. Experts for both sides provided testimony regarding the poorly constructed drain system. The Petchaks asserted that the Police Jury maintained custody of the drain because the system not only served the purpose of public drainage, but the offending portion of the drain was located - within the dedicated drainage easements beside their home. Conversely, the Police Jury presented evidence that the particular culverts in question were not installed at the time of the formation of the subdivision and the filing of the Plat in 1978. This was because the intended use of Lot 368 was originally undetermined. The drain was apparently constructed at the time of the construction of the residence of Lot 363 between 1983 and 1985. The Police Jury further contended that it never would have accepted such a poorly constructed “snake” drain that was not located entirely within the drainage easement.

By judgment dated February 1, 2010, all claims against the Police Jury were dismissed with prejudice. Additionally, defendant’s exception of prescription was denied, along with its reconventional demand for the cost of repair of the drainage system.

Imln its written opinion, the trial court found that the Police Jury was neither aware of the defective drainage system, nor did it exercise control over the system. Specifically, the court concluded:

Therefore, the police jury cannot be held responsible for the maintenance of a storm drain pipe for which they did not approve or accept, especially when the storm drain pipe was improperly constructed per the testimony of all the expert engineers that testified at trial.

The Petchaks now appeal. The Police Jury answers the appeal to assert again its exception of prescription.

Discussion

I.

The initial issue concerns whether the Police Jury acquired a property right or drainage servitude upon the filing of the subdivision Plat in 1978, or thereafter. The evidence indicates that when the Plat was filed the culverts for the drain had not been laid, and the trial court’s opinion appears to have accepted that fact in its ruling. Nevertheless, additional conclusions from the evidence are that the need for drainage for the lots south of the plaintiffs’ lot was recognized in the survey and engineering plans for the subdivision as shown by the drainage “easement” depicted on the Plat and that the need for drainage still exists. With this situation, did the Police Jury acquire a drainage servitude affecting the plaintiffs’ lot?

Inin its Ordinance No. 509 setting forth the regulations for Bossier Parish subdivisions and the provisions for approval of plats, the Police Jury required that “right of ways” for necessary drainage be “dedicated” to the Police Jury. Like the dedication of the streets in a subdivision, proper drainage facilities serve an important public need, and the political subdivision, which will maintain the drainage facilities at taxpayer expense, may regulate the installation of such facilities and acquire a property right in the form of a servitude for the drainage “right of ways.”

The parties’ arguments identify the four modes of public dedication recognized in Louisiana: formal, statutory, implied, and tacit. Cenac v. Public Access Water Rights Ass’n, 02-2660 (La.6/27/03), 851 So.2d 1006; St. Charles Parish Sch. Bd. v. P&L Inv. Corp., 95-2571 (La.5/21/96), 674 So.2d 218. In this case, there was no formal and specific written act by which the owner of the subdivision conveyed a servitude to the Police Jury. Thus, there was no formal dedication. Likewise, a tacit dedication under La. R.S. 48:491 is not supported by the facts. The controversy centers therefore upon whether a statutory or implied dedication occurred. The Police Jury reviews the principles for such dedications and argues that no dedication of a servitude occurred because of the lack of construction of the drain facilities in 1978 at the time of the Plat. The Police Jury also contends that it never | ^certified that the eventual construction of the drainage culverts in question was proper and that it never accepted or maintained the drain as its property.

Before the enactment in 1896 of what is now La. R.S. 33:5051, controversies concerning the public’s rights for use of roads, streets and other public places were determined in the jurisprudence. The disputes involved situations where there was no formal written act granting and dedicating rights to a political subdivision for public use of the land. Nevertheless, because the public use had clearly arisen over time, the courts found under certain circumstances that the owner had implicitly permitted the land to be used by the public with the owner’s intention of making a dedication. Anderson v. Thomas, 166 La. 512, 117 So. 573 (1928); City of Shreveport v. Walpole, 22 La. Ann. 526, 1870 WL 5399 (1870). A key circumstance giving rise to an implied dedication is the sale of lots with reference to an original plan of a city or the plat of a subdivision. See, A.N. Yiannopoulos, Predial Servitudes § 220, in 4 Louisiana Civil Law Treatise (3d ed.2010) and cases cited therein.

Statutory guidance for the dedication of streets and alleys for public use came through La. R.S. 33:5051 which sets forth requirements for the platting and subdividing of land for the sale of lots. There is a significant body of jurisprudence interpreting La. R.S. 33:5051 and finding the transfer 113of rights in the immovable to a political subdivision through what is referred to as statutory dedication. The jurisprudence holds that the statutory requisites for the subdivision plat listed under La. R.S. 33:5051(B) need not be completely shown on the plat so long as a substantial compliance with those items is met. Garrett v. Pioneer Production Corp., 390 So.2d 851 (La.1980).

Although La. R.S. 33:5051 does not specifically address drainage concerns for a subdivision, Section B(6) requires the subdivision plat to contain “[A] certificate of the parish surveyor or any other licensed land surveyor of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.” This reference to laws and ordinances of a parish is broad enough to warrant consideration of the following provisions of Title 33 addressing parish government and the regulation of water and sewage facilities necessary for the subdivision of land for residential sale:

La. R.S. 33:112. Subdivision regulations.

A. Before exercising the powers referred to in R.S. 33:110, a parish planning commission shall adopt regulations governing the subdivision of land within unincorporated territory within its jurisdiction for purposes other than agricultural.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
|14P. Such regulations may include provisions as to the extent to which roads, streets, and other ways shall be graded and improved and to which water and sewer and other utility mains, piping, or other facilities shall be installed as a condition precedent to the approval of the plat. The regulations or practice of a commission may provide for a tentative approval of the plat previous to such installations; but any such tentative approval shall be revocable and shall not be entered on the plat. In lieu of the completion of such improvements and utilities prior to the final approval of the plat, a commission may accept a bond with surety to secure to the parish or municipality, as the case may be, the actual construction and installation of such improvements or utilities at a time and according to specifications fixed by or in accordance with the regulations of the commission. The parish or municipality, as the case may be, may enforce such bond by all appropriate legal remedies.

From our review of Ordinance No. 509, the Police Jury clearly followed the grant of authority and directives of La. R.S. 33:112 in its regulation by this ordinance of the public drainage concerns attendant to the subdivision of land in the parish. There is reflected within the ordinance:

(i) A specific intent by the Police Jury to receive a dedicated “right of way” for necessary drainage which the subdivider “must” grant as a part of the process for approval of the subdivision.
(ii) Requirements for a preliminary submission of the subdivision plan showing the proposed location of all easements and for the preliminary approval of the Police Jury before installation of necessary improvements, including drainage facilities. In that process the parish engineer determines the necessary capacity for the proposed drainage facilities.
| is(iii) A final approval process after installation of the subdivision facilities in which “the final plat” must be found to conform to the initial plan for the public improvements before recordation of the plat and any sale of lots in the subdivision.

Ordinance No. 509 also addresses a specific concern identified by the legislature in La. R.S. 3S:112(D) which is central to this dispute. In lieu of the completion of the necessary public improvements and utilities, the parish may accept a bond with a surety and grant a tentative approval for the subdivision. Though not entirely clear, the state statute indicates that with such “tentative approval of the plat” sales of lots might begin but that those sales will be without “such tentative approval ... entered on the plat.” The bond, of course, would then insure that the public improvements depicted on the plat, which were required and reviewed by a police jury through the preliminary planning, are eventually constructed. The prohibition of the listing of unfinished improvements or a “tentative” completion matter on the “plat” reflects an important concern and policy. The public, who will soon invest for the use and enjoyment of the subdivision by their purchases of lots, understands and measures the sufficiency of the improvements and utilities and their dedication as public property by reliance on what the recorded final plat reveals. If the final plat reflects a necessary public improvement that has yet to be constructed and that improvement is held out |1fito the public by the recordation of the plat indicating parish approval and a dedication to the public, the parish must obtain a bond to insure that such improvement eventually serves the lot owners and public.

From our review of the jurisprudence, all other instances of statutory dedication have involved the application of La. R.S. 33:3051 pertaining to streets, roads and alleys, making this case unique. In those cases, despite the absence of a written act by which the owner expresses his intention to convey and the public body expresses its acceptance of the property right, the filing of the subdivision plat in substantial compliance with the statute results in a conveyance affecting the immovable. Garrett, supra. Under the jurisprudence, the intent of the landowner/grantor is shown by his actions in planning for the subdivision, his signature on the plat, and his subsequent sales of lots in reference to the plat. The political subdivision’s acceptance of the property right can be shown by various factors including the exercise of its regulatory control of the planning for the street improvements, its formal approval of the subdivision by a vote of the political subdivision, its certification placed upon the plat,.and its maintenance of the street and alley improvements. Nevertheless, the courts have held that the dedication is complete without a formal acceptance by the political subdivision and without the construction and use of street improvements. Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938); Walker v. Coleman, 540 So.2d 983 (La.App. 2d Cir.1989); Kavanagh v. Bowers, 02-248 (La.App. 5th Cir.6/26/02), 826 So.2d 1165, writ denied, 02-2086 (La.l 1/1/02), 828 So.2d 575. Additionally, a local governing authority has no legal right to disclaim title to the streets and alleys. Police Jury, Jefferson Parish v. Noble Drilling Corp., 232 La. 981, 95 So.2d 627 (1957); Boagni v. State, Through Dep’t of Transp. and Dev., 399 So.2d 813 (La.App. 3d Cir.1981), writ denied, 404 So.2d 497 (La.1981).

With this understanding of statutory dedication, we hold that the Police Jury’s ordinance, its December 19, 1977 Resolution of acceptance, its certification by the office of the parish engineer placed on the Plat, and the recordation of the subdivision Plat serve as the basis for a statutory dedication and for the Police Jury’s acquisition of an interest in the property for the subdivision, including in particular Lot 363. Like La. R.S. 33:5051, Ordinance No. 509 imposed duties on the subdivider for drainage facilities and the designation of right of ways for the water flows through the subdivision. Such designation for the area of the plaintiffs’ land affected by the drainage servitude was set forth on the Plat for Country Place, and both the surveyor for the project and the parish engineer signed the Plat with the subdivider/owner, certifying compliance with Ordinance 509. The presence [ 18of the ordinance with its statutory force and the actions of the Police July in monitoring compliance with the ordinance in the construction of the subdivision and signing the subdivision Plat were sufficient to complete in 1978 the dedication of the area of land shown as the drainage easement affecting plaintiffs’ lot.

In reaching this conclusion, we are not persuaded by the Police Jury’s arguments concerning the lack of construction of the drainage improvement at the time of these actions in 1977 and 1978. The cited jurisprudence regarding statutoiy dedications is to the contrary. The Police Jury’s allowance of the formal platting of the subdivision with the Plat’s recordation and the subsequent sale of lots holds out to the public that the “easement” for this drainage need was conveyed and accepted by the Police Jury as a public right for the remedy of that need.

Having determined that a conveyance or dedication of a “right-of-way” to the Police Jury by the 1978 filing of the Country Place Plat occurred, we will address our law on personal and predial servitudes for consideration of the nature of the right which was acquired. One may have various rights in an immovable including personal and predial servitudes. La. C.C. art. 476. A personal servitude is a charge on a thing for a benefit of a person. La. C.C. art. 534. The personal servitude of right of use confers in | infavor of a natural person or legal entity a specific use of an estate less than full enjoyment. La. C.C. arts. 639 and 641. The right of use may confer only an advantage that may be established by a predial servitude. La. C.C. art. 640. A specific predial servitude identified in the Civil Code is the servitude for drainage, whether a natural drain under Article 655 or conventional servitude for drain under Article 699. La. C.C. arts. 655 and 699.

In this setting, the Police Jury owned no neighboring tract or dominant estate which would receive the actual benefit of drainage and the “advantage” by the direction of the flow of water from such tract across a servient estate. Nevertheless, the Police Jury desired a “right of way” which in substance is a personal servitude, right of use. The Police Jury obtained this right of use servitude by the operation of its ordinance for the “advantage” of drainage which the members of the public and prospective owners in the subdivision may enjoy. The right of use servitude gave the Police Jury the exclusive right to use the 25-foot and 5-foot easement areas on plaintiffs’ lot designated on the Country Place Plat by installing and maintaining underground drainage facilities. The right of use was a burden or encumbrance on the ownership of the plaintiffs’ lot limiting the use of that lot. This substantive regime encumbering the immovable property and importing real obligations arose upon the filing of the Plat in 1978.

| ¡^Additionally, the disputed drainage servitude in this case has a direct benefit for one or more of the neighboring lots in the subdivision. The water drain begins with an intake located on Lot 291 and therefore serves that lot and possibly other lots south of the plaintiffs’ lot. To that extent, the servitude shown on the Plat provides a specific predial servitude for those lot owners. Summers v. Vermilion Parish Police Jury, 00-1084 (La.3d Cir.2/28/01), 784 So.2d 15, writ denied, 01-1404 (La.6/29/01), 794 So.2d 816.

In summary, upon the subdivision owner’s recordation of the Plat in 1978, the Police Jury was vested with the real right of a personal servitude right of use affecting the immovable for this “right of way” area for drainage. Prospective owners of the lots in the subdivision were bound by the Police Jury’s ownership of the real right. An owner of Lot 291 could expect the advantage of the servitude of drain, yet the 25-foot easement across the rear of his lot was within the Police Jury’s “right of way” or servitude control. The lot owned by the plaintiffs was burdened by the servitude as a servient estate to allow the flow of water across the lot.

As a final matter, long before the damage to the plaintiffs’ home occurred, the Police Jury acted in a manner recognizing and asserting its ownership of this right of use servitude on the plaintiffs’ lot after the construction of the residence. In 1992, the previous owner of the Petchaks’ |21 home, Theresa Kruse, reported the occurrence of a sinkhole, and the Police Jury responded by filling in the sinkhole on two separate occasions and telling her to be on the lookout for additional sinkholes. Kruse further inquired regarding the need for the manhole or junction box which extends aboveground within the 25-foot portion of the drainage easement at the rear of Lot 363. She was informed that the manhole was necessary for the drainage system for the benefit of the neighbor’s yard and that the Police Jury would not allow its removal or alteration. Subsequently, approximately three years later, the Police Jury was contacted by the Petchaks in relation to an additional sinkhole located on Lot 363. The Police Jury once again responded by filling the location in with dirt.

.James W. Ramsey, the parish administrator and engineer for the Police Jury from 1964 until 1994, testified that he responded to the call from Kruse in 1992 concerning the sinkhole. He stated that because of the surface depression he assumed that there was an underground pipe, likely with a “bad joint,” drawing the dirt down into the ground. He later sent a parish work crew to fix the problem. Finally, while noting the mislocation of a portion of the drain culverts, Ramsey admitted that the drain in question between lots 363 and 291 is “draining water for a public purpose and at the |22same time is going into a public drainage system” under the street in front of plaintiffs’ home.

II.

The next issues relate to the Police Jury’s position that plaintiffs are asserting a tort claim under La. R.S. 9:2800, which provides that “no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.” Asserting that the action is in tort, the Police Jury presents various defenses. First, the Police Jury argues that the construction of the defective drainage system was by an unknown builder or other party after the creation of the subdivision in 1977-1978 and before the construction of the Petchaks’ residence in the early 1980’s. The system lies in part outside the “easement” areas which encumber Lot 363. The Police Jury argues that this defective construction by another party precludes a finding of the Police Jury’s garde or custody over the defective drain. Second, the Police Jury claims that it lacked actual or constructive notice of the defective culverts. Third, as an alternative | ^argument, the Police Jury asserts comparative fault regarding the actions of the unknown party who constructed the defective drain.

As discussed above, the Police Jury’s right of use servitude is a real right that encumbers the ownership of plaintiffs’ immovable, establishing a relationship involving a “specified use” of the property in the nature of a predial servitude. La. C.C. arts. 476, 639, 640 and 645. Plaintiffs’ lot is therefore a servient estate that owes a charge for the benefit of the drainage of the subdivision. La. C.C. art. 646. Plaintiffs’ obligation to allow the passage of the water across them property is not a personal obligation but a real obligation because it is a charge on the servient estate that all successive owners of Lot 363 must bear. La. C.C. arts. 1763 and 1764. As a correlative real obligation governing the dismemberment of the usus right of ownership of the immovable, the owner of the dominant estate, or in this case the owner of the personal servitude, must exercise his “specified use” without exceeding the boundaries of that use in a manner damaging the concomitant use of the servient estate. See former Article 778 of 1870 Civil Code. “The owner of the dominant estate may not make use of the servitude that aggravates the condition of the ser-vient estate.” Yiannopoulos, supra § 156; Board of Comm’rs of Port of New Orleans v. Illinois Central Gulf R.R. Co., 379 So.2d 838 (La.App. 4th Cir.1980), writ denied, 380 So.2d 1241210 (La.1980); Oswalt v. Irby Const. Co., 424 So.2d 348 (La.App. 2d Cir. 1982); Duet v. Louisiana Power and Light Co., 169 F.Supp. 184 (ED.La.1958); Jack son v. Jackson, 00-2591 (La.App. 1st Cir.3/6/02), 818 So.2d 192.

The statutory dedication of this right of use servitude was an act transferring an immovable in which the participation and consent of both the subdivider and the Police Jury defined the “specified use” of the real right. Like the creation of a personal or predial servitude by contract, the specified use and extent of this servitude is regulated by the statutory dedication by which it was created. The “specified use” in this case is not only confined within the geographical boundaries of the easement areas shown on the Plat, but is also limited by an implicit requirement for properly controlled water flow across Lot 363 through appropriate underground facilities.

The issue of tort responsibility in contexts where parties have a pre-existing obligatory relationship has been considered in the jurisprudence in terms of whether the breach involves the violation of a general duty owed to all persons or a specific duty owed because of that prior relationship. Federal Ins. Co. v. Insurance Co. of North America, 262 La. 509, 263 So.2d 871 (La.1972); Baugh v. Parish Government Risk Mgmt. Agency, 30,707 (La.App.2d Cir.6/24/98), 715 So.2d 645; Davis v. Le Blanc, 149 So.2d 252 12 (La.App. 3d Cir.1963). For example, in certain circumstances, the same acts or omissions may constitute breaches of both general duties and contractual duties so as to give rise to actions both in tort and in contract. Baugh, supra at 647. In this case, the pre-existing relationship between these parties before the damage to plaintiffs’ home was that of the owner of the right of use servitude and the owner of the servient estate. This gave rise to the possibility of the breach of the real obligations identified above and an indemnity which might then be due from either the owner of the personal servitude or the owner of the servient estate concerning the use or misuse of the servitude. See, Official Comment (f) to La. C.C. art. 1764. In that sense, we do not find that the duty of the owner of the personal servitude to refrain from using the servitude in a manner that aggravates the condition of the servient estate is a tort duty owed generally to all persons.

Additionally, the nature of the plaintiffs’ claim is brought into focus by an essential issue raised by both parties’ pleadings and left totally unaddressed by the trial court’s judgment. The plaintiffs not only sought recovery of the damages to the home, they sought a properly repaired drainage system within the confines of the easement areas encumbering their lot. Likewise, the Police Jury, effectively acknowledging its ownership of the drainage system servitude, asserted by its reconventional demand that the ^broken system be repaired by the Police Jury at the cost of the plaintiffs. Both parties recognize that this drain, serving adjoining lot owners who were not made parties to this action, must be repaired to serve the subdivision’s need for drainage. The plaintiffs cannot simply plug the underground culvert as it first enters their property from Lot 291 without violating the public drain servitude. The Police Jury did not present evidence that no public drain is needed and that it may abandon its personal use servitude. The ongoing erosion caused by the flow of water will continue the damage to plaintiffs’ property and possibly the adjacent Lot 292.

The remedy sought by both parties’ claims to repair the drainage system is therefore not a tort remedy. It relates totally to their mutual rights in Lot 363 and the continued use of the servitude. In view of our holding above recognizing the Police Jury’s ownership of this right of use servitude for drainage, we find that the Police Jury, as owner, must remedy its broken system at its cost.

This same cause of action which requires the Police Jury to fix the problem causing past (and future) damages to the servient estate also requires indemnification for those damages. The damages caused by the flow of water through the defective drain system are not remedied by our law of tort but by the above law regulating the relationship between thej^owner of land and the owner of a real right which burdens that land. The comparative fault principle application to tort claims under La. C.C. art. 2323 therefore does not apply. The Police Jury is not excused from the obligations regarding its ownership of the servitude by the fact that an unknown party, twenty or more years before, trespassed upon the Police Jury’s easement and constructed the system haphazardly in a snaking fashion, partially within the easement and partially without.

Our discussion above reviewing La. R.S. 33:112(D) and Ordinance No. 509 shows that the Police Jury did not follow the state statute and its own ordinance when it allowed the conveyance and dedication of the public drainage servitude through the platting procedures and the depiction of that servitude/easement on the Plat without insuring the system’s later installment by obtaining a bond. In the absence of insistence for a bond, the conveyance of the now disputed servitude was completely avoidable had the Police Jury instructed the subdivider/owner to remove the “easements” affecting Lots 363 and 291 from the Plat.

Even though the drain in question only serves a few lots and the status of Lot 363’s use as a residential lot was left optional in 1978, this does not diminish the import of the drain’s depiction on the Plat as a public servitude within the care and maintenance of the Police Jury. When the Petchaks |asdetermined to purchase the lot in 1994, they could (i) view the manhole cover in the 25-foot easement on the lot, (ii) understand that them prospective ownership of Lot 363 would be subject to the right of use by the public as shown by the easements’ depiction on the Plat, and (iii) trust that the Police Jury’s use and maintenance of that servitude would not aggravate the condition of their residence. Prospective homeowners do not typically conduct underground surveys of the condition of the utilities in easements affecting residential lots. The duties regarding the real obligations flowing from this ownership regime are for the protection of both the public use of the servitude and the homeowner’s use of his lot.

Finally, since we find that the uncontrolled use of the servitude by the drainage flow of the water was a breach of the servitude owner’s real obligation to the owner of the servient estate, the general negligence requirement in tort of a defendant’s knowledge or constructive knowledge of,the defect of a thing in one’s custody is not applicable; In any event, the Police Jury’s prior maintenance responses on the property regarding the various sinkholes demonstrate, at a minimum, constructive knowledge of a problem with the drain system by 1992.

III.

12;)The Police Jury asserts that the Petchaks’ claim has prescribed under La. R.S. 9:5624, which provides:

When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.

The purpose of La. R.S. 9:5624 is to limit the exposure of the state and its political subdivisions to liability in connection with a public work to a reasonable period. Avenal v. State, 03-3521 (La.10/19/04) 886 So.2d 1085, cert. denied, 544 U.S. 1049, 125 S.Ct. 2305, 161 L.Ed.2d 1090 (2005); Lyman v. Town of Sunset, 500 So.2d 390 (La.1987); Roberson v. Lincoln Parish Police Jury, 39,418 (La.App.2d Cir.3/23/05), 899 So.2d 636. Not every lawsuit for damages caused by a public entity or involving a public works project falls within the purview of La. R.S. 9:5624. In order to fall under the statute, the damage must be incurred “for public purposes.” Damage is incurred “for public purposes” when the damage is intentional or occurs as a necessary consequence of the public project. Avenal, supra.

The “completion and acceptance” of a public works project is not involved in this case. The damage to plaintiffs’ home resulted from the Police Jury’s specified use of the drain servitude, as the water flow over an extended period of time caused erosion. We therefore find this two-year 1 .^prescription statute inapplicable. Furthermore, the record indicates that plaintiffs acted within one year of their discovery of the problem with the drainage system.

Conclusion

For the following reasons, the ruling of the trial court dismissing plaintiffs’ claims against the Police Jury is reversed. It is hereby ordered, adjudged and decreed that the Police Jury repair the public drainage culverts and piping, locating the drain within the easement areas affecting Lot 363. Since the trial court dismissed plaintiffs’ claims for damages altogether and did not reach and resolve the disputed evidence concerning the issue of plaintiffs’ damages, the case is remanded to the trial court for that determination.

Costs of appeal are assessed to the Police Jury in accordance with La. R.S. 13:5112 in the total amount of $318.00, representing costs of $171.50 owed by the Police Jury and $146.50 in costs paid by the Petchaks.

REVERSED AND REMANDED.

STEWART, J., concurs with reasons.

STEWART, J.,

concurring.

|!Pursuant to La. R.S. 33:1236(13), police juries have the power to maintain drainage in their respective parishes. In Corinne Park Civic Ass’n v. Police Jury of St. Bernard Parish, 416 So.2d 106 (La.1982), homeowners and a civic organization sued the St. Bernard Parish Police Jury for damages due to the periodic overflow of the Kierr Canal. They alleged lack of maintenance by the police jury, which denied having the responsibility for drainage in the parish and asserted that it never undertook to maintain the canal pursuant to the discretionary authority to do so under La. R.S. 33:1236(13). The supreme court rejected these arguments and affirmed the appellate court’s determination that the police jury assumed responsibility for maintaining the canal. The record showed that the canal was an integral part of the subdivision’s drainage system as shown by the subdivision survey, drainage plan, and Act of Dedication. The matter was remanded for a determination of whether the police jury was liable for faulty maintenance.

As discussed in this court’s opinion, a dedication of a right-of-way to the Police Jury was effected by the filing and acceptance of the subdivision plat. Moreover, the record shows that the Police Jury acted under its statutory authority to maintain drainage on three occasions by filling the sinkholes reported by Theresa Kruse and then by the Petchaks. Having 12accepted the subdivision plat and then undertaken to address and correct the drainage-related problems reported by these homeowners, the Police Jury assumed the responsibility for the defective drainage system and had the duty to properly maintain it.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.

      . The document containing the covenants for Country Place Subdivision, Unit No. 5, dated January 23, 1978, allowed the option for the later conversion of lot 363 into a public street or otherwise for the use of the lot for a residence. James Mohr, civil engineer and land surveyor, who was involved in the design of Country Place Subdivision, explained that Lot 363 was out of sequential numerical order because it was not intended to be slotted for residential construction; rather it was the intent of the developer to leave it open for the possible construction of additional streets to tie in prospective development to the west. Mohr further testified that the pipe was not in existence at the time of the 1977 dedication because it was unclear of the lot's intended use.

      . La. R.S. 33:5051 B. The map referenced in Subsection A of this Section shall contain the following:
      (1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
      (2) The dimensions of each square in feet, feet and inches, or meters.
      (3) The designation of each lot or subdivision of a square and its dimensions in feet, feet and inches, or meters.
      (4) The name of each street and alley and its length and width in feet, feet and inches, or meters.
      (5) The name or number of each square or plat dedicated to public use.

        (6) A certificate of the parish surveyor or any other licensed land surveyor of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
      (7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys', and public squares or plats shown on the map to public use.

      . In Simmons v. Board of Com'rs of Bossier Levee Dist., 624 So.2d 935 (La.App. 2d Cir. 1993), this court recognized a drainage-related easement shown on a subdivision plat, determining that a servitude had been "dedicated.” It was unclear whether a statute or ordinance served as the basis of the "dedication” or whether implied dedication was the basis of the transfer and creation of the servitude. See also, Best Oil Co. v. Parish Council of East Baton Rouge Parish, 176 So.2d 630 (La.App. 1st Cir. 1965), writ denied, 248 La. 365, 178 So.2d 656 (La.1965).

      . La. C.C. art. 645: Regulation of the servitude.
      A right of use is regulated by application of the rules governing usufruct and predial ser-vitudes to the extent that their application is compatible with the rules governing a right of use servitude.

      . La. C.C. art. 1763: Definition.
      A real obligation is a duty correlative and incidental to a real right.
      La. C.C. art. 1764: Effects of real obligation.
      A real obligation is transferred to the universal or particular successor who acquires the movable or immovable thing to which the obligation is attached, without a special provision to that effect.
      But a particular successor is not personally bound, unless he assumes the personal obligations of his transferor with respect to the thing, and he may liberate himself of the real obligation by abandoning the thing.

      .“The right of ownership, which according to traditional civilian analysis includes the elements of usus, fructus and abuses, may lawfully be dismembered in a variety of ways either by the intention of the owner or by operation of law.” Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 144.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ruth E. MORRISON, Appellant.
    Nos. 45,620-KA, 45,621-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 24, 2010.

      Paula Corley Marx, W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Jonathan M. Stewart, District Attorney, Douglas L. Stokes, Jr., Jonesboro, LA, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

11 Ruth E. Morrison was convicted by a jury of aggravated rape and aggravated oral sexual battery and received concurrent sentences of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the rape conviction and 20 years at hard labor for the battery conviction. Morrison appeals urging five assignments of error. Morrison’s convictions and sentences are affirmed.

Facts

In 1997, Morrison was charged with the aggravated rape and aggravated oral sexual battery of then nine-year-old J.M. More specifically, the bill of indictment alleged that Morrison aided and abetted her husband, Danny R. Morrison, in his having vaginal intercourse with J.M. and that Morrison had oral sex with the child.

lain April of 1997, Morrison asked J.M.’s aunt, who was a family friend, if J.M. could spend the weekend at her house to attend a church function with her on Sunday. When J.M. arrived home on Sunday, she told a family member that Morrison and her husband touched her vagina with their tongues more than once and that Morrison’s husband, Danny Morrison, tried to have sex with her. J.M. also told the family member that the incidents were videotaped. The next day, J.M.’s family took her to Child Protection Services, then to the Jackson Parish Sheriffs Office. During an interview at the sheriffs office, J.M. informed officers about the incident and that there was a videotape. Later that day, J.M. was taken for an examination by the Winn Parish Coroner, Dr. R.L. Williams, who found evidence of sexual abuse. During a search of the Morrison residence, sheriffs office investigators seized a videotape which contained footage of the acts described by J.M.

Following the execution of the search warrant, Morrison and her husband were arrested. Danny Morrison pled guilty to aggravated rape and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence in May of 1998. Morrison originally entered a plea of not guilty but issues were raised concerning her competency to proceed to trial. After a sanity hearing, the court concluded |Rthat Morrison was unable to proceed to trial due to an inability to understand the proceedings against her and to assist counsel in her defense. As a result of her incompetence, Morrison was committed to a state mental institution.

After approximately 8 years, on August 6, 2008, the court deemed Morrison competent to proceed to trial, and ordered that she be returned to the custody of the Jackson Parish Sheriffs Office. In preparation for the sanity hearing, Morrison was examined by Dr. James B. Pinkston, Ph. D., M.P. In his report dated March 11, 2008, Dr. Pinkston stated that he was hired by “Ms. Morrison’s attorney to help determine her sanity at the time of the alleged offense, her ability to proceed to trail [sic ] and her capacity to assist counsel.” In his evaluation, Dr. Pinkston considered all of the mental health difficulties that Morrison had in her life. He ultimately concluded that she was capable of assisting with her defense and communicating with her attorneys. Most importantly, Dr. Pinkston found that at the time Morrison committed the offenses she was able to distinguish between right and wrong. Specifically, he noted:

Evidence indicates that Ms. Morrison possesses sufficient cognitive resources to allow her to appreciate the appropriateness and potential wrongfulness of her behavior, and she indicated feeling that her behavior was wrong at the time of her offense.

|/Thereafter, on February 17, 2009, Morrison withdrew her former plea of not guilty, and entered a plea of not guilty and not guilty by reason of insanity. A joint motion to consolidate the charges was granted by the trial court. Following the conclusion of the jury trial, Morrison was found guilty as charged. She received concurrent sentences of life in prison at hard labor, without benefit of parole, probation, or suspension of sentence on the aggravated rape conviction and 20 years’ imprisonment at hard labor for the aggravated oral sexual battery conviction. After a timely motion for reconsideration of sentence was denied, this appeal by Morrison ensued.

On appeal, Morrison raises issues of insufficient evidence to convict her of both offenses, ineffective assistance of trial counsel, and court error.

Discussion

I.

Morrison argues that there is insufficient evidence to prove her guilt for the offense of aggravated rape beyond a reasonable doubt because the state failed to prove that her husband penetrated J.M., a requisite element of the crime of rape. Alternatively, Morrison argues that if the court concludes that an aggravated rape did occur, the defense of justification due to her fear of her husband warrants the reversal of both of her convictions despite her admission to the crime of aggravated oral sexual battery.

15At the time of the offense, La. R.S. 14:41 in pertinent part, provided:

A. Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however' slight, is sufficient to complete the crime.

Likewise, La. R.S. 14:42 provided in pertinent part,

A. Aggravated rape is a rape committed upon a person ... where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act.

A violation of La. R.S. 14:41 occurs when there is any penetration, however slight, of the aperture of the female genitalia, even its external features. State v. Bertrand, 461 So.2d 1159 (La.App. 3d Cir.1984), writ denied, 464 So.2d 314 (La.1985).

In this matter, Morrison was charged as a principal to aggravated rape. The law of principals as set forth in La. R.S. 14:24 provides:

IfiAll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

At the time of the offense, La. R.S. 14:43.4 defined aggravated oral sexual battery in pertinent part as follows:

A. Aggravated oral sexual battery is an oral sexual battery committed when the intentional touching of the genitals or anus of one person and the mouth of or tongue of another is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:

(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act without the consent of the victim.

La. R.S. 14:18 provides in pertinent part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed[.]

|7The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, unit denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. —, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36, writ denied, 08-2639 (La.5/22/09), 9 So.3d 141 (same deference applies to bench trial).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

The defense of justification is an affirmative defense that must be proven by a preponderance of the evidence. State v. Cheatwood, 458 So.2d 907 (La.1984); State v. Brazil, 34,341 (La.App.2d Cir.4/4/01), 784 So.2d 734; State v. Shed, 36,321 (La.App.2d Cir.9/18/02), 828 So.2d 124, writ denied, 02-3123 (La.12/19/03), 861 So.2d 561. The defense of justification |acan be claimed when any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed. In reviewing a conviction in which the defendant offered testimony that his criminal actions were justified, a reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The state presented the testimony of Chief Criminal Deputy Stephen Watts who testified that he received the initial report of the subject crime on April 18, 1997. On that date, Deputy Watts spoke with J.M. who reported that Morrison and her husband had “sexually assaulted” her. J.M. also informed Deputy Watts about the videotape of the incident. Accordingly, Watts procured a search warrant of the Morrison home. Deputy Watts testified that a videotape depicting the crime was seized from the Morrison home. He stated that he viewed the tape which was later introduced into evidence. Deputy Watts identified J.M., Morrison and Danny Morrison from the video. He stated that from this incident, Danny Morrison pled guilty to aggravated rape. Evidence of Danny Morrison’s judgment of conviction was | mintroduced into evidence. Deputy Watts was present when Morrison was arrested and did not notice any bruising on her person; he also testified that Morrison appeared coherent at the time.

The videotape of the crime was played for the jury. The video begins with the victim sleeping fully dressed. The next scene in the video shows the victim totally nude with her legs spread wide open by Morrison. The defendant’s husband is filming the scene and at some point focuses the camera directly on the victim’s vagina. Morrison can be heard promising the victim $10 “to do whatever she wants” and a “bicycle” for her participation. During the filming, Morrison states that in order to get $10 and a bicycle the victim “has to play with him [the husband] as much as he plays with you [the victim].” After that, the defendant encourages her husband to stop filming and join them. Morrison’s husband then comes over and performs oral sex on the victim for several minutes. During the videotape, Morrison’s husband performs oral sex on the victim on more than one occasion. The defendant also clearly performs oral sex on the victim. While doing that, the victim is forced to rub on the husband’s penis and to perform oral sex on him.

The video shows that the victim’s vagina was digitally penetrated by both the defendant and her husband on at least 4 to 5 different occasions. [, tThe video also shows that Morrison’s husband takes his penis and places it directly on the victim’s vagina on at least two different occasions. During the first occasion, he moves his hips back and forth in a thrusting motion at least 4 to 5 different times. During the second occasion, he places his penis on the victim’s vagina and moves his hips back and forth with an increasingly intense thrusting motion at least 15 to 20 times. The video concludes with Morrison performing oral sex on her husband while the victim watches. She then has vaginal intercourse with her husband. During both acts, they try to entice the victim to touch the defendant’s husband by reminding her of the $10 and bicycle.

Dr. Randolph Williams, Winn Parish Coroner, testified concerning the results of his medical examination of J.M., who he testified was under the age of 12 at the time. Dr. Williams testified as follows:

Q. All right. What are the results of any of your findings of the examination that you made of [J.M.] with reference to the organs that you’ve described?
A. Okay, specifically, from the report, physical examination. Introitos, that the opening to the vagina itself ... The introitos is noted to be red, irritated, and that is the entire round circular area in the beginning of the vagina. That’s called the in-troitos. Okay, it’s red, irritated, and inflamed.
Q. Okay, How about the hymen ring, did you make-
[ 12A. Hymenal ring shows evidence of recent, recent partially healed tears. Very red, inflamed and irritated, and painful to the touch.

Dr. Williams could not specify whether a finger or a penis caused the entrance to J.M.’s vagina to be inflamed, although he did not find anything inconsistent with penile penetration.

J.M., who was 21 years old at the time of trial, testified that Morrison put her mouth or tongue on J.M.’s vagina. J.M. also testified that Morrison’s husband “put his penis” against her vagina, but she could not recall if he penetrated her. J.M. stated that Morrison assisted her husband in that act. J.M. stated that at some point during the weekend, she asked Morrison whether she could go home. Morrison told her that her aunt and uncle were at a casino and that J.M. could not go home. J.M. testified that she never heard Morrison’s husband threaten Morrison, yell at her or hit her. Morrison never told the child that her husband made her do those things. Morrison told J.M. not to tell anybody, and she offered her a bike and money in exchange for the child’s silence.

The defense presented several witnesses on Morrison’s behalf. Arvie Huckaby, Morrison’s sister, gave an overview of Morrison’s life. She indicated that her sister had been married 5 times and all 5 spouses were abusive. With respect to Danny Morrison, Huckaby relayed several violent | ^assaultive incidents that she witnessed. On one occasion, Danny Morrison went to Huckaby’s house armed with a gun and told her he would kill her if she interfered with his marriage. Morrison was present and observed the incident. After this incident, Morrison would visit Hucka-by’s home but was only allowed to stay for 15 minutes at a time. At one point, Danny Morrison told Huckaby “if you call her, I will kill her.” Finally, Morrison’s husband showed Huckaby a map of his stepfather’s property and said that he would kill Morrison and bury her there.

Terry Folden, who is related by marriage to Morrison, testified that she witnessed Morrison’s husband straddle Morrison with his knees on each side of her body and hit her. Folden testified that she offered to help Morrison, but Morrison heard her husband in the background ordering her to make Folden leave or he would kill them both.

Debbie Clifton, Morrison’s daughter, also testified. She was present for the incidents described by Huckaby and offered similar testimony which supported Huckaby’s contentions. Additionally, Clifton testified that on two occasions Danny Morrison nailed the doors to the family residence shut from the outside so that Morrison could not get out of the house.

Dr. Dennis Kelly, an expert in psychiatry and clinical director of the Greenwell Springs Hospital, an acute psychiatric facility, testified that at the |14time of her arrest, Morrison suffered from a delusional disorder, although he was not sure of the full extent of the illness. She claimed to be a model, singer, college teacher, sheriff and private investigator upon her admission to the hospital in 2000 and denied being the person who had harmed J.M. Dr. Kelly stated that in his opinion he could say with “reasonable degree of medical certainty” that Morrison “had an emotional reaction to what happened in this case ... that was a very strong reaction and that given her underlying psychiatric vulnerabilities ... caused her to have what we would call a psychotic break with reality.” Dr. Kelly also diagnosed Morrison with paraphilia, deviant sexual arousal or deviant sexual behavior that does not necessarily rise to the level of pedophilia.

On cross-examination, Dr. Kelly admitted that when Morrison began to admit her identity and participation in the crime in 2004, she never asserted that her husband forced her to participate in the crime.

Rachel Scott, a domestic violence expert, testified that she had reviewed the instances of violence committed by Morrison’s husband against Morrison and concluded that she was a victim of domestic violence and that she was in fear for her safety from Danny Morrison. Scott testified that because of Morrison’s limited cognitive functioning, she was more vulnerable to intimidation and control than other women who might have a | ^different background and level of functioning. Scott testified that Morrison was in survival mode and would do whatever it took to avoid the abuse inflicted by her husband, including commission of criminal acts.

Dr. Mark Vigen, Ph.D., a clinical psychologist, reviewed all of Morrison’s records and he, along with members of his staff, interviewed her. Dr. Vigen found that Morrison had an IQ range of 65-75, was a mildly retarded, passive, dependent person who relied on others for direction. Dr. Vigen testified that Morrison had a history of mental illness including undirected paraphilia. Dr. Vigen stated that Morrison has external locus of control, meaning that she felt she had no power in her life. He admitted that such an external locus did not necessarily indicate criminal activity. Dr. Vigen testified that Morrison fit the psychological definition of an individual with battered wife syndrome. He explained that battered women minimize and rationalize and deny the wrong behavior they perform for their spouses. Similar to Scott, Dr. Vigen also found that Morrison was living in fear of her husband and was in survival mode. This caused her to do things out of fear and avoidance of violence.

On cross-examination, Dr. Vigen admitted that Morrison’s truthfulness would have an impact on his opinions. He testified that although both he and Dr. Pinkston had concerns about Morrison’s truthfulness in the 11fiIQ testing, extensive testing did not indicate that Morrison was a malingerer in regard to her delusional disorder.

Morrison’s first argument relating to proof of aggravated rape is that the state failed to prove sexual penetration. The evidence presented at trial is sufficient to support Morrison’s conviction as a principal to the charge in that she acted in concert with Danny Morrison in the sexual abuse of the child. Regarding the sexual penetration, Dr. Williams’ testimony. and the videotape were sufficient to establish the overwhelming implication that penetration did in fact occur. J.M. recalled that Danny Morrison put his penis against her vagina. The videotape clearly shows that the defendant’s husband placed his penis against the victim’s vagina and engaged in a repeated thrusting motion. Dr. Williams confirmed from his examination that the injury to the victim’s vagina indicated the requisite penetration for the crime of rape. From this evidence, the jury could have concluded beyond a reasonable doubt that penetration occurred during the perpetrator’s sexual intercourse with the child with Morrison’s voluntary participation.

Additionally, the record does not contain a preponderance of evidence to support Morrison’s claim that her commission of either offense was justified. While the testimony presented during Morrison’s case-in-chief supports her contention that she suffered abuse at the hands of her husband, |17the evidence does not show that at the time she committed either offense she was in imminent peril of great bodily harm, or reasonably believed herself or others to be in such danger. In stark contrast, the testimony presented by the State established that: (1) Morrison alone brought J.M. to her residence; (2) before and during the offenses, J.M. did not observe Danny Morrison threaten the defendant; (3) before the offenses occurred Morrison lied to J.M. to keep her at the residence after J.M. asked to return home; (4) after the offenses Morrison offered J.M. money and gifts to keep quiet; (5) when Morrison returned J.M. home, she made no mention of the offenses; (6) the videotape of the incident does not reveal Morrison’s husband threatening her in any way, but instead shows her participating willingly in the acts of abuse committed by her husband against J.M.; and (7) Morrison committed independent crimes against the child. Because the evidence presented by the State is wholly inconsistent with any claim of immediate peril, Morrison’s claim of justification lacks merit.

II.

In her second assignment of error, Morrison argues that her trial counsel’s performance was deficient because he failed to proceed with her defense of not guilty by reason of insanity. She claims that her lawyer [ 1simpermissibly abandoned the defense without adequate information to do so. She also claims that there is no evidence in the record to establish whether her competency at the time of the offense was ever tested.

Although a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief rather than on appeal, this Court may resolve the issue on direct appeal if the record is sufficient. La. C. Cr. P. art. 930; State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Id. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Id. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State |19v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). See also, State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Id. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Id.; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

_[2¡¡In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La. R.S. 15:432. To rebut this presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La. C. Cr. P. art. 652.. Criminal responsibility is not negated by the mere existence of mental disease or defect. To be exempted of criminal responsibility, defendant must show she suffered a mental disease or mental defect which prevented her from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14; State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27; State v. Foster, 26,134 (La.App.2d Cir.12/9/94), 647 So.2d 1224, writ denied, 95-0548 (La.6/30/95), 657 So.2d 1026.

In this matter, Morrison chose to go to trial maintaining a plea of not guilty by reason of insanity. At trial, the defense presented the only expert testimony regarding the issue of Morrison’s mental health. Nevertheless, both experts limited their opinion testimony to the consideration of the battered spouse syndrome, with neither being asked for an opinion regarding Morrison’s ability to distinguish between right and wrong at the time of the offense. In fact, in closing arguments, defense counsel conceded that the experts were not asked that question because “that’s not our defense in this case.” The earlier psychiatric assessment of Morrison by Dr. Pinkston, who Li had indicated in his opinion that Morrison was able to distinguish between right and wrong at the time of the offense, was not presented to the jury. Thus, from the record before us, a complete understanding of the abandonment of the insanity defense cannot be gained for a determination of whether ineffective assistance of counsel occurred. With this insufficiency in the present record, this matter more properly lends itself to the presentation of evidence at a post-conviction hearing. Accordingly, the issue raised by this assignment of error must be raised through an application for post-conviction relief.

III.

In her third assignment of error, Morrison contends that the trial court erred in refusing to grant her pretrial motion to suppress the search warrant because the description of the place to be searched was inadequate. More specifically, Morrison argues that the search warrant was invalid because it incorrectly stated that the Morrison house was the only house at the end of the driveway. As a result, Morrison argues that the videotape seized as a result of the search should have been suppressed and her convictions reversed.

Both at the pretrial hearing and trial, Jackson Parish Sheriffs Deputy Stephen Watts testified regarding his preparation and execution of the search | ^warrant at issue. Deputy Watts obtained the search warrant for the Morrison residence after speaking with J.M. Deputy Watts, who was familiar with the location of the Morrison residence, drove there and took pictures of the residence to attach to his search warrant. The application for the search warrant described the residence as follows:

if one was traveling south on U.S. Highway 167 from Jonesboro, toward Winn-field, you would enter the community known as Wyatt, you would turn left onto Louisiana 505 and travel east 1.5 miles, and you find a mailbox on the left side of the road with the name DANNY in orange letters on top of the mailbox. The driveway is at the mailbox. You would turn to the left off of highway 505 into the driveway, you would travel approximately 400 feet to the only residence on the driveway. The residence is at the end of the driveway and consists of a barn type structure and an upstairs area that contains the residence. This residence is known by affi-ant to be the residence of Danny and Ruth Morrison.

The law addressing this issue is provided in La. C. Cr. P. art. 162, which states:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

123The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. State v. Korman, 379 So.2d 1061 (La.1980); State v. Petta, 354 So.2d 563 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977). Hence, “a minor error in a portion of the description of the premises to be searched does not invalidate the search.” Korman, supra. But, if police officers knowingly search an entirely different premises than that described in the warrant, the evidence seized will be suppressed because the warrant did not particularly describe the place to be searched. State v. Manzella, 392 So.2d 403 (La.1980).

In this case, the residence which was searched by the police was “particularly described” in the warrant. In fact, the search warrant specifically describes the route Deputy Watts took in order to arrive at the Morrison residence. Moreover, the photographs depicting the residence leave little possibility for error. Although other structures were on the property, they were across the pond and approximately 100 yards from the building Deputy Watts described in the search warrant as the Morrison residence. Given Deputy Watts’ familiarity with the location of Morrison’s residence and the meticulousness with which he acted in securing the 124warrant, there is no merit to Morrison’s contention that the search warrant did not describe the place to be searched with sufficient particularity.

IV.

Morrison argues that the trial court erred by failing to grant a mistrial when the prosecutor referred to her affirmative defense of justification as an excuse. She claims that this description of her defense by the prosecutor was an inaccurate statement of the law and prejudiced her defense.

During voir dire, the prosecutor stated that an affirmative defense “is basically for lack of a better word, an excuse.” Morrison’s trial counsel moved for a mistrial which was denied by court. In so ruling, the trial judge stated:

And I’m concerned about the language but I don’t think the defendant has been prejudiced at this point and if we move forward and be more careful about telling the jury that they think the Judge is going to instruct them as to what the law may be.

When the jury returned to the courtroom, the trial judge admonished them that comments made by lawyers were not necessarily the correct law and he would instruct them on the law whenever the appropriate time came.

La. C. Cr. P. art. 775 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.

12r,A prosecutor’s misstatements of the law during voir dire examination, or in his opening and closing remarks, do not require reversal of a defendant’s conviction if the court properly charges the jury at the close of the case. State v. Cavazos, 610 So.2d 127 (La.1992). The court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Legrand, 02-1462 (La.12/3/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). The determination of whether actual prejudice has occurred which would warrant a mistrial lies within the sound discretion of the trial judge; this decision will not be overturned on appeal absent an abuse of that discretion. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

In State v. Cheatwood, supra, the Louisiana Supreme Court stated the following in referring to justification defenses:

Since “justification” defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.

(Emphasis Added.)

12(jEven if the prosecutor’s reference to Morrison’s affirmative defense of justification as an “excuse” is considered as an incorrect and misleading statement of law, the trial judge instructed the jury when they were empaneled that comments made by the lawyers were not necessarily the correct statement of the law. Moreover, the record reflects that the trial court properly instructed the jury on the defense of justification, thus further curing any possible prejudice which may have occurred in the prosecutor’s comment. For these reasons, this assignment of error has no merit.

V.

Morrison argues that under the circumstances of this ease the mandatory life sentence imposed by the trial court for her conviction for aggravated rape constitutes cruel, unusual, and excessive punishment under the U.S. Constitution. Similarly, she contends that her sentence of 20 years for her conviction for aggravated oral sexual battery is excessive due to her low IQ, history of physical and sexual abuse and the lack of a meaningful relationship with her mother.

At the time Morrison committed the offense of aggravated rape, La. R.S. 14:42 provided in pertinent part:

C. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. However, if the victim was under the age of twelve years, 127as provided in Paragraph A(4) of this Section, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, of sentence, in accordance with the determination of the jury.

Likewise, La. R.S. 14:43.4 defined the crime of oral sexual battery in pertinent part:

C. Whoever commits the crime of aggravated oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than twenty years.

This Court has held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Robbins, 43,240 (La.App.2d Cir.6/4/08), 986 So.2d 828, writ denied, 08-1438 (La.2/20/09), 1 So.3d 494; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

12flAs this Court stated in State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490:

Although ... the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive.

In State v. Foley, 456 So.2d 979 (La. 1984), the Louisiana Supreme Court expounded at length on the constitutionality of the mandatory sentence found in La. R.S. 14:42. The Court held that the mandatory life sentence for aggravated rape is a valid exercise of the state legislature’s prerogative to determine the length of sentence for crimes classified as felonies. This Court has affirmed the mandatory life sentence for aggravated rape as not being unconstitutional. State v. Ingram, 29,172 (La.App.2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505.

In cases where there is no mandatory sentence, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 06-2768, 06-2781 (La.6/22/07), 959 So.2d 494.

In those cases, appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence, is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice orj^makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Absent a showing of manifest abuse of that discretion this Court may not set aside a sentence as excessive. State v. Guzman, supra; State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, unit denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

In relation to her life sentence for aggravated rape, Morrison fails to argue or present any evidence that she is an “exceptional” defendant for which downward departure from the mandatory maximum sentence for aggravated rape is warranted. Thus she has failed to clearly and convincingly show that the imposed sentence is not meaningfully tailored to the gravity of the offense. Moreover, Morrison’s poor choices and the unfortunate circumstances of her life fail to mitigate the egregiousness of an offense which involved the seeking out of a nine-year-old child for unconscionable acts of perversion.

Similarly, Morrison is equally unpersuasive in her argument regarding her receipt of the maximum sentence allowed under La. R.S. 14:43.4. Adequate La. C. Cr. P. art. 894.1 compliance is evident on the record. The trial court specifically considered Morrison’s claim that she was mentally |S1 deficient and the factors she had utilized in her defense of justification. The court noted the jury’s evident rejection of her justification. Therefore, he also considered Morrison’s conduct. Her victim was a young child she knew. She put the child in danger by knowingly obtaining and subjecting the child to her husband — who she knew to be abusive. She lured the child to her home under the false pretense that she would take her to a church function. She knew her actions were wrong because she offered the child a reward to remain quiet. In addition to providing a reasonable factual basis for the imposed sentence, these factors also serve to qualify Morrison as the worst possible offender. Accordingly, the chosen sentence not only is meaningfully tailored to the culpability of this offender, but is suited to the gravity of the offense. Morrison’s arguments to the contrary are without merit.

Error Patent

An error patent review reveals that the trial court failed to specify that Morrison’s 20-year sentence for aggravated oral sexual battery be served without benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 14:14.43.4. Nevertheless, when a trial court fails to order that a sentence should be served without benefit as mandated by the statute, those required restrictions are self-activating and there is no need to remand for a | ^ministerial correction of an illegally lenient sentence. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Braziel, 42,668 (La.App.2d Cir.10/24/07), 968 So.2d 853.

Conclusion

For the foregoing reasons, Morrison’s convictions and sentences are affirmed.

AFFIRMED.

      . J.M. lived with her aunt after the death of the child’s biological mother.

      . Although Morrison raises the subject of her insanity plea in her ineffective assistance of counsel claim, she has not raised a sufficiency of evidence issue regarding the jury's rejection of her plea of not guilty by reason of insanity. The record shows that the jury was instructed regarding a not guilty by reason of insanity verdict. Specifically, the jury was instructed that insanity is defined as an affirmative defense if Morrison proved by a preponderance of the evidence "that because of a mental disease or defect she was incapable of distinguishing between right and wrong with reference to the conduct in question at the time of the offense[.]"

      . Effective August 15, 2001, La. R.S. 14:41 was amended to also include oral sexual intercourse, i.e., the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender or the intentional touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim. Under this statute, when rape by "oral sexual intercourse” is committed on a person under the age of thirteen then it becomes aggravated rape and the perpetrator is subject to life in prison without benefit of parole.

      . Effective August 15, 2001, La. R.S. 14:42(A) was amended to include oral sexual intercourse. Moreover, in order for a defendant to be charged with oral aggravated rape, the victim must have been under the age of 13 instead of 12.

      . La. R.S. 14:43.4 was repealed by the legislature in 2001. However prosecution under this statute was still proper because its repeal came after Morrison’s alleged perpetration of the offense. The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518.