source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Hung V. NGUYEN.
    No. 11-KA-229.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Scott U. Schlegel, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAYOIS.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Hung V. Nguyen (“Nguyen”), appeals his conviction of aggravated rape in violation of La. R.S. 14:42 (Count 1) and unauthorized use of a motor vehicle in violation of La. R.S. 14:68.4 (Count 2). He was indicted by the grand jury of these crimes on October 8, 2009. At his arraignment, Nguyen pled not guilty to both crimes.

On February 22, 2010, without objection, the indictment was amended to correct Nguyen’s birthdate and, on that date, Nguyen proceeded to trial. Following trial, a unanimous, twelve-person jury found Nguyen guilty as charged as to both counts. Nguyen filed a motion for new trial, arguing that, among other things, the verdict was contrary to the law and evidence regarding aggravated rape and that the victim’s testimony, which had been contradicted, was the only evidence of the offense. Immediately following denial of the motion, Nguyen waived sentencing delays and was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence for Count 1, and to ten years of imprisonment with the |aDepartment of Corrections for Count 2. The sentences were to run concurrently. This appeal follows.

The victim, N.N., testified (through a Vietnamese interpreter) that she was working at Eva’s (a bar) as a waitress on November 27, 2008 when Nguyen, whom she identified in court, bought her six or seven small bottles of beer. They sat down, talked, and drank beer. Before she drank beer with Nguyen, however, she smelled alcohol on him. He told her that he had been to her boyfriend’s house earlier and had been drinking beer with him. Nguyen asked N.N. if she could take him to her apartment to sleep overnight. N.N. testified that Nguyen was drunk and could not drive his car, so she drove him in her car and brought him to her apartment in Jefferson Parish. She could not recall what time they left, but she knew her shift had started at 9:00 p.m.

After arriving at her apartment, Nguyen asked her if they could open a bottle of wine that was on the table. She testified that they drank the wine, and Nguyen was “coming on” to her. She explained that he wanted to have sex with her, but she did not want to have sex with him. She testified that she and Nguyen talked for over an hour and then he embraced and kissed her. She said she told him he could not do that to her, but he did not stop. Instead, he pushed her down onto the sofa and hit her. She explained that he used one arm to pull her pants down and she was trying to hold his arm while trying to hold her pants. She said that he hit her in her face and that she blocked him when he hit her. She did not know how many times he hit her in her face. She recalled screaming for him not to hit her, but he continued to hit her and eventually pulled her pants down.

According to N.N., Nguyen then put his penis into her vagina and raped her. N.N. testified that she pushed him out, but he hit her in her face with one hand and was holding her arm with his other hand. N.N. said that she told Nguyen he could J^not do that to her and screamed. She said she begged, but he told her to “shut up.” She testified that she did not stop screaming, and she did not stop struggling. She said that she was raped for “a long time.”

N.N. testified that Nguyen put his arm to her neck and made her faint. She did not know how long she remained unconscious, but, when she awoke, she saw that Nguyen was in her bedroom. She ran into her bedroom, still naked, and took her purse from Nguyen. He pushed her down and asked her for her keys. He took her keys from her purse, as well as her phone and some money. She testified that Nguyen ran downstairs and drove away in her car, without saying a word. She said that Nguyen did not have her permission to take her car when he left her apartment.

N.N. put her pants on and went to her neighbor for help. She told her neighbor, Ms. Yung, that she had been hit and raped and asked her neighbor to call her boyfriend. Her neighbor helped her call the police and served as an interpreter once the police arrived, as N.N. does not speak English. N.N. told the police who hit and injured her, stating that she did not know Nguyen’s name before the time she brought him home. She said that her neighbor helped her to find out his name. It appears from other testimony that she provided a partial name and that her neighbor happened to know Nguyen.

N.N. testified that she was shy and afraid. She explained that she did not initially tell the police about the rape, and she waited to disclose the rape when she was at the hospital. At the hospital, she was able to talk to the police through an interpreter. She was sent to a second hospital for a vaginal examination. N.N. testified that she felt pain in her vagina and anus, that her anus felt “very wet,” and she believed that Nguyen had inserted his penis into her anus when she was 15unconscious. N.N. testified that she did not tell the doctor examining her that she was raped anally, but she did tell the doctor that she had pain in both places.

N.N. testified that the photographs presented at trial accurately depicted her condition at the time. She also took photographs of her body, including her leg and neck, with her phone, although it appears these photos were taken days after the rape. She handed the police her phone when she met with them. She testified that the bruises in the photographs were because of Nguyen, who had pushed her and used his legs to push down her legs. She also explained the bruises on her neck, saying “[h]e pushed his arm to my neck and make [sic] me fall and leave [sic] a bruise on my neck.” N.N. testified that, at the time of trial, she still felt pain in the bones around her eyes.

Dr. Phillip Lee Reed, a physician employed by Ochsner Medical Center, was accepted as an expert in the field of emergency medicine. He recalled that a full “history” and a physical of N.N. was performed on November 28, 2008. Dr. Reed explained that he had treated thousands of patients, but he remembered N.N. because the amount and degree of trauma involved in her case had left an impression on him. He believed it was a sad case and recalled having to get a translator involved. A nurse, who was able to speak Vietnamese, was able to get a “history” from her. He believed the photographs presented at trial accurately depicted the victim at the time.

Dr. Reed testified that the patient said she was struck multiple times in her face and chest area with a fist. She reported a loss of consciousness and reported being raped. A physical examination revealed she appeared to have blunt force trauma, particularly concentrated around her facial area. She also had multiple abrasions, contusions, swelling, ecchymosis (bruising), and tenderness on her cheek. A CAT scan was conducted to investigate facial bone fractures and | f,revealed that she had a fracture in the inferior orbital region in the lamina papyraeea.

Dr. Reed testified that N.N. appeared to have trauma to her lip, which was contused and swollen, ecchymosis around her eye, redness and swelling around her eye, and tenderness where the fracture was. She also had trauma to the bridge of her nose. Dr. Reed testified that N.N.’s injuries were consistent with blunt force. Because of the amount of area involved, Dr. Reed believed that the injuries were not consistent with one blow but, instead, resulted from multiple blows. He did not believe one fist could cover all of the area of bruising to her forehead, lip, and both cheeks. He further testified that it was not as likely that N.N.’s injuries resulted from a strike and a fall.

Dr. Reed was questioned as to the level of force necessary to sustain such injuries. He responded that it would have taken a “[pjretty high degree of blunt force to create a fracture in the orbit,” and that it required a good amount of force to break that orbital bone. He testified that the level of trauma could be consistent with the loss of consciousness. After looking at the photographs from the phone, Dr. Reed noted that the injuries were consistent with someone placing a forearm onto the neck and compressing it. Dr. Reed testified that a great deal of force had to have been used to cause this much contusion. He also testified that the injuries to the wrist and legs could be consistent with somebody pinning someone down. After examining N.N., he discharged her and sent her to get a sexual examination.

Dr. Chi Dola, an associate professor at Tulane University School of Medicine and a practicing physician, was recognized as an expert in the field of obstetrics and gynecology. She testified that, on November 28, 2008, she conducted a rape examination on N.N. Dr. Dola testified that the photographs presented accurately depicted N.N.’s physical condition at the time of the 17examination at Tulane Lakeside Emergency Room in Metairie. She believed N.N. was initially evaluated at Meadow-crest Hospital. Dr. Dola testified that she learned N.N. was treated for injuries and had been medically stabilized before she was transported to the Tulane Lakeside facility. She noted the extent of the injuries to N.N.’s face and her outward extremities. Dr. Dola testified that she spoke Vietnamese and that it was her native tongue. Therefore, she was able to obtain a “history” from N.N., who she learned was 87 years old and had been pregnant four times and delivered four times. She also learned N.N. was assaulted sexually by someone she knew as an acquaintance. According to Dr. Dola, N.N. reported that she was penetrated vaginally, but not orally or anally. N.N. resisted, which resulted in facial fracture, ecchymosis (skin discolorations from blood escaping into tissues from ruptured blood vessels), bruises on her thighs, and scratches on her hands. Ecchymosis most likely occurs from a forceful trauma that did not penetrate the skin. She testified that N.N.’s “history” was consistent with her claim of sexual assault.

Dr. Dola observed scratches on N.N.’s hands and wrist. She also had facial scratches, facial ecchymosis, and bruises on her thigh. She testified that the victim appeared “badly beaten up” and her eyes were practically swollen shut. She testified that N.N.’s injuries were consistent with the use of force. N.N. cried out in pain with the insertion of the speculum, a device used in routine gynecological examinations. Dr. Dola determined that N.N. had normal female genitalia and the examination revealed no lesions or trauma. Further, no trauma to N.N.’s rectum was discovered. Although Dr. Dola was not able to observe any evidence of trauma in N.N.’s vaginal area, she noted that this was not inconsistent with N.N.’s claim of vaginal penetration. She explained that data showed that 12 to 40 percent of women who had been sexually assaulted did not have evidence of injuries. Dr. |sDola explained that the vagina can expand to accommodate insertions, regardless if the insertion is consensual. She also testified that she would not expect damage to the anal area if there was anal penetration because the anus can stretch and then regain its shape. She found no secretion to collect when examining N.N.’s anus.

Tracy Wine, a Jefferson Parish police officer, testified that she responded to a call at almost 9:00, regarding a female who said she had been beaten up. Officer Wine testified that a neighbor was at N.N.’s apartment and was able to translate in Vietnamese. In the initial statement, the victim said through her translator that she was knocked unconscious and, when she woke up, Nguyen was gone. Officer Wine noticed the victim had a swollen cheek and her eye was starting to shut. She had bruises on her face and blood by her mouth, as well as bruises on her wrist and around her chest area. The injuries looked “fresh,” with the officer testifying that it appeared the beating had occurred within a half hour. Officer Wine believed that the extent of N.N.’s injuries required medical treatment, so EMS transported N.N. to Meadowcrest. She testified that N.N. was scared and very timid and that not much detail was given at the residence. Officer Wine did not ask N.N. if she was sexually assaulted when at the residence, but she followed N.N. to the hospital and continued with the investigation, not knowing that N.N. had been sexually assaulted.

A nurse at the hospital helped with the translation to Officer Wine. Officer Wine testified that, when she communicated with the nurse, she discovered that N.N. said she was sexually assaulted. When the officer asked why N.N. had not disclosed this before, N.N. said she was embarrassed and did not want her neighbor to know she had been sexually assaulted. Officer Wine testified that the victim appeared embarrassed, was crying, was upset, but had calmed down at the 19hospital. According to Officer Wine, the neighbor did not say N.N. was sexually assaulted, and it would be a surprise to learn the neighbor had known this before the officer arrived.

Detective Mike Houlihan of the Jefferson Parish Sheriffs Office investigated the rape. When Detective Houlihan went to Meadowcrest Hospital to see the victim, he observed that N.N. was “beat up pretty bad,” was crying, was sluggish, and seemed kind of “out of it.” Detective Houlihan testified that a nurse was able to translate. Through the investigation, Nguyen was developed as a suspect. Detective Houlihan prepared an arrest warrant for him and was notified a couple of weeks later that Nguyen had been arrested. However, Detective Houlihan testified that a deputy told him that the person who had been arrested said they had the wrong guy, and he thought the police were looking for his brother who had the same name. They also lived at the same address. The victim was shown a photographic lineup with this person’s photograph, and she said that he was not the perpetrator. On the following date, Nguyen was presented in another photo lineup, and the victim made an identification. An arrest warrant for Nguyen was obtained, and Detective Houlihan was later notified that Nguyen had been arrested.

Detective Mike Tucker with the Sheriffs Office testified that he arrested Nguyen on February 19, 2009, after receiving a tip that he would be at a particular residence. Detective Tucker arrived and told Nguyen he had a warrant for his arrest for rape and advised him of his rights. During transportation, Nguyen initiated a statement by asking questions about the case. The detective informed Nguyen that he knew nothing about the case and had simply been there to bring him into custody. At that time, Nguyen advised that he did not rape the victim, but they had made love. Nguyen was again advised of his rights, but he went on to say |inhe met the victim, took her home in her vehicle, and they made love. Nguyen said that, the next morning, the two had an argument, he pushed her down, and left. He said nothing about hitting the victim. Detective Tucker was confused by Nguyen’s choice of words that they had “made love,” as Nguyen said he had just met the victim.

Detective Houlihan obtained a recorded statement from Nguyen, which was played for the jury at trial.

In the statement, Nguyen said that he could read and write English and acknowledged that he was advised of his rights, which he understood. He was willing to waive his rights and give a statement to Detective Houlihan. Nguyen was not related to N.N., but had met her at “Eva,” a lounge where she worked. He said he knew N.N. “for a long time but never got really acquainted.” He believed he arrived at the lounge at about 11:00 or 11:30 p.m. and stayed there until 3:30 or 4:00 a.m. Nguyen said that they sat and talked, and he offered her a couple of drinks. N.N. drank six or more beers. According to Nguyen, N.N. indicated that she did not know if she wanted a relationship. Nguyen later saw her when he walked out. N.N. was in her car and had a stomach ache or a chest ache. She did not appear to be drunk. Nguyen asked her if she wanted him to drive her home and eventually she said yes. He had to stop and pull over because of her pain, but the pain stopped. After they arrived at N.N.’s home, they sat, talked, and opened a bottle of red wine. They drank, hugged, kissed, and then made love. While they were making love, he became tired and told her he wanted to go to sleep. They lay on the couch until morning, when he woke up and said he needed to go home so he could take his nephew shopping. Nguyen asked N.N. to drive him home, but she said no because she did not want him to go. Nguyen was going to walk home, but, as he was leaving, N.N. pulled him back and would not let him go. He became Ininad when she was grabbing and scratching him. Nguyen pushed N.N., but when she came back at him again, he closed his fist and punched her in her face. He punched her once, hard, and believed she fell and hit her face on the corner or arm rest of the couch. Nguyen then took her keys and her van and drove to “Eva” to get his car. He agreed he did not have her permission to take her vehicle. He left the van there and went home.

In the statement, Nguyen said that N.N. did not say “no” when they were making love. He believed the sexual intercourse was consensual. He believed N.N. was saying that it was non-consensual because she was “pissed off’ at him because he hit her. He said that N.N. took off her own clothes, and he helped. Nguyen admitted that his penis went into N.N.’s vagina and that he did not wear a condom. He believed the sexual intercourse lasted maybe five minutes, and he did not believe that he ejaculated.

Detective Houlihan acknowledged that disclosures of rape were not immediate in every case. He testified that it was not unusual for a victim to fail to report a rape immediately, and he explained that some wait hours, days, weeks, months or years. He believed this was understandable. He did not go back and talk to the neighbor because to his knowledge, the neighbor did not know of the rape. Detective Houlihan further testified that he did not believe that Nguyen hit the victim once like Nguyen said in the statement because one punch could not have caused all that injury.

On appeal, Nguyen argues that, viewing the evidence in the light most favorable to the State, supports only a verdict of forcible rape. He avers that, although the victim suffered bruising and a bone fracture from a punch to the face and was steadfast in her claim that the sexual activity was without her consent, the victim failed to articulate a single threat of harm voiced by him. Nguyen further 112argues that the victim did not claim he was armed or say that he would arm himself during the course of the incident. He contends that the' evidence only supports forcible rape, concluding that this Court should set aside the verdict of aggravated rape and, instead, enter a verdict for the lesser included offense of forcible rape.

The constitutional standard for testing the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” “The rule as to circumstantial evidence is; assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

| iSRape is defined by La. R.S. 14:41(A) as “the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.” Any sexual penetration, however slight, is sufficient to complete the crime and emission is not necessary. La. R.S. 14:41(B).

Nguyen was convicted of aggravated rape in violation of La. R.S. 14:42, which provided, in pertinent part, the following:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, 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:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

Nguyen argues that, at most, the State presented evidence of forcible rape. He points to the events immediately preceding the rape, during which time the two drank together and went to N.N.’s home, continuing to drink. Nguyen also contends he was unarmed and that at no time did he threaten N.N..

La. R.S. 14:42.1 provides, in pertinent part, the following:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(l)When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” A greater degree of force is necessary to justify the more serious punishment imposed for aggravated | urape. The degree of force employed and the determination of the grade of rape is for the jury to decide. However, “there is no magic formula to determine which acts of coerced sexual intercourse warrant the greater punishment of aggravated rape rather than forcible rape. Each case must be examined on its own facts.”

In the present case, the jury charges included a responsive verdict of forcible rape, but determined the amount of force employed and the resistance exerted amounted to aggravated rape. It appears that the trier of fact believed the victim was credible. She clearly testified that she was raped and that there was vaginal penetration without her consent. Under the circumstances of this case, vaginal penetration was sufficient to constitute rape. Nguyen does not challenge that there was penetration, but provided in his statement that the sexual intercourse was consensual.

The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess the credibility determinations of the trier of fact or to reweigh the evidence. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. In the case of sexual offenses, the victim’s testimony alone can be sufficient to establish the elements of a sexual |1fioffense, even if the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense.

The evidence presented by the State supported the verdict of aggravated rape. According to her testimony, N.N.’s resistance was overcome by the physical force used to accomplish the rape. That testimony and the physical evidence reflect the extent of the victim’s resistance. N.N. described how Nguyen pushed her down on the sofa and testified that she pushed him “out,” telling him he could not do that to her. She described her multiple attempts to block Nguyen when he was hitting her. She explained trying to hold his arm when he was pulling her pants down and that she tried to hold onto her pants. She screamed and told Nguyen not to hit her or do this to her. She said she did not stop screaming and did not stop struggling. However, it is apparent that the relentless and brutal force used by Nguyen to accomplish the rape overcame any resistance by N.N. The evidence supports a conclusion that a specific verbal threat of great bodily harm would have, in this case, been superfluous. The mere fact that Nguyen was unarmed does not negate the possibility that an aggravated rape occurred.

Further, N.N. testified about the extent of her injuries and that she was still in pain at the time of the trial. At one point, N.N. testified that she became unconscious after Nguyen put his forearm to her neck. She suffered multiple injuries to her body, including an orbital fracture, and the photographs taken of her demonstrate the extent of her injuries and the degree of force that would have been required to cause those injuries. The testimony of the doctors supported a finding of the great physical force exerted on N.N. Taken in its entirety, N.N.’s testimony, combined with the physical evidence of her injuries and the testimony of the other 11fiwitnesses, supports the jury’s decision that this was an aggravated, not a forcible, rape. Based upon the facts herein taken in their entirety, we are convinced that N.N. resisted the rape to the utmost. The facts substantiate that Nguyen was able to physically overpower the victim even though he did not threaten her with a weapon. Viewing the evidence in the light most favorable to the prosecution, we conclude that the jury could have found beyond a reasonable doubt that the Nguyen raped the victim under circumstances where she resisted the act to the utmost, but her resistance was overcome by force. This assignment of error is without merit.

In his second assignment of error, Nguyen urges that the trial court erred in permitting his case to be tried by a jury without the services of a qualified courtroom interpreter, resulting in a denial of his right to confront his accuser.

Nguyen notes that the interpreter had only provided translation services in traffic court and had only been serving as an interpreter for about two months. He suggests that the interpreter’s broken English during “voir dire” should have sent a red flag to the court that he was unqualified for the task. He contends that the interpreter’s struggles were apparent as he attempted to translate for the victim. Nguyen also noted that defense counsel said “this isn’t working” when the interpreter was writing things down for the witness while he attempted to communicate with her. Nguyen argues that the interpreter demonstrated poor skills and that, during cross-examination, he struggled to keep up. Nguyen urges that the error in this case was so egregious as to require reversal and remand for a new trial.

At trial, the interpreter was questioned by the court. Sang Phuong testified that he spoke Vietnamese and English and understood both languages, having lived in this country since 1975. He testified that he had acted as an interpreter for about |17two months, explaining that he works for a firm that had trained and tested him, and had also evaluated his interpretation skills. Mr. Phuong said he interprets in the first person and says exactly whatever the victim says. The judge asked if there were questions for the interpreter. Neither the State nor the defense had questions. Thereafter, the court recognized Mr. Phuong as an interpreter for the court, and he was sworn in.

Defense counsel did not challenge the interpreter’s qualifications at this time. However, later, during the victim’s testimony, there was a bench conference in which defense counsel objected because the interpreter was writing things down. Defense counsel said he did not know if the interpreter had enough experience “to do this.” Thereafter, the interpreter was instructed by the court, the State, and defense counsel as to how to handle the interpretation. It was explained that the victim had to slow down so he could interpret and tell them exactly what she was saying, without writing things down.

On appeal, Nguyen argues that he suffered prejudice because he was not able to confront the victim in this case because of the non-qualified interpreter. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Further, the confrontation clause of the Louisiana Constitution specifically guarantees each accused the right to confront and cross-examine witnesses against him.

La. Const, art. I, § 16 grants the defendant a right to a fair trial. This constitutional article is the source of specific rights due a defendant in a criminal trial, such as the right to confront and cross-examine witnesses against him. “Utilizing this constitutional source provision, it is evident that the defendant’s | ^constitutional right to confront and cross-examine witnesses would be significantly impaired if he is unable to understand what these accusers say.” Confrontation errors are subject to a harmless error analysis.

Nguyen did not raise the issue of confrontation violation in the trial court. Further, defense counsel did not question the interpreter about his qualifications and mentioned a perceived lack of experience only once during the testimony of the victim. Therefore, Nguyen has, thus, not properly preserved this issue for review.

Nevertheless, we note the following: La. C.Cr.P. art. 25.1 requires the court to appoint an interpreter for a non-English-speaking person who is a principal party in interest or a witness in a proceeding before the court after consultation with the non-English-speaking person or his attorney. This article states the interpreter must be “competent” to interpret or to translate the proceedings to him and to interpret or translate his testimony. However, there is no law in Louisiana that requires interpreters, other than interpreters who translate for the hearing impaired, to be certified.

An interpreter should be a neutral and detached individual whose abilities are screened by the court. As described above, the court did examine Mr. Phuong’s credentials. With regard to the qualifications of a translator, a trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. ImOur review of the record discloses no manifest error in the determination to qualify Mr. Phuong.

In the present case, Nguyen has not claimed any specific prejudice arising out of the interpreter’s translations. There is also nothing in the record to suggest that any of the testimony at trial was improperly translated. Nguyen has failed to show that any substantial rights were violated. Further, we note that the record indicates that Nguyen spoke both Vietnamese and English. It is difficult to suggest that Nguyen was at a disadvantage to confront his accuser at trial because of some language barrier, when there is no indication in the record that he had difficulty communicating with the accuser/victim at the time of and just prior to the incident.

Finally, we find that the jury was presented with sufficient evidence other than that of N.N.’s testimony to support a guilty verdict. This assignment of error is without merit.

Our error patent review reveals the following:

Although the commitment reflects a proper advisal of the prescriptive period pursuant to La.C.Cr.P. art. 930.8, the transcript reflects that the judge advised Nguyen that he had “two years after judgment of ‘conviction for sentence’ to become final within which to file post-conviction relief.” Because we must remand for other reasons, below, we remand and order the district court to clearly inform Nguyen of the appropriate prescriptive period for filing for post-conviction relief.

Further, it appears that there is a discrepancy in the commitment, which reflects that the present case involved a judge trial, when the record clearly shows this was a jury trial. Therefore, we remand the matter for correction of the commitment for purposes of accuracy, and we order the district court to make the entries in the commitment reflecting this change. The court is further ordered to |2ndirect the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced.

Finally, the record does not reflect that Nguyen was notified of the sex offender registration requirements for his conviction of aggravated rape. La. R.S. 15:540, et seq. requires registration of sex offenders, and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La. R.S. 15:542 to Nguyen. The trial court’s failure to provide this notification constitutes an error patent. Therefore, on remand, the court is instructed to notify Nguyen of the sex offender registration requirements (and the child predator registration provisions) and to furnish the record with proof of such notice to Nguyen.

For the foregoing reasons, the conviction and sentence are affirmed. The matter is remanded with instructions to correct the noted errors patent.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The transcript does not reflect whether this was a.m. or p.m.

        . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See, State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted).

      . State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

      . State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

      . State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

      . State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78, 83.

      . State v. Dixon, 04-1019 (La.App. 5 Cir. 3/15/05), 900 So.2d 929 (citing State v. Parish, 405 So.2d 1080, 1087 (La. 1981) (on reh'g)).

      . State v. Dixon, supra (citing State v. Jackson, 437 So.2d 855, 858 (La.1983)).

      . State v. Dixon, supra (citing State v. Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893).

      . State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 480, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283.

      . State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651.

      . State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

      . State v. Gaddis, 07-395, pp. 7-8 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, 25, writ denied, 08-0156 (La. 10/10/08), 993 So.2d 1277.

      . State v. Davis, 09-1061, p. 6 (La.App. 3 Cir. 4/7/10), 36 So.3d 351, 356.

      . State v. Collins, 10-0757, p. 11 (La.App. 4 Cir. 5/11/11), 65 So.3d 271, 280 (quotation omitted).

      . State v. Taylor, 04-346, p. 7 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594 (quotation omitted).

      . State v. Lopes, 01-1383, p. 3 (La.12/7/01), 805 So.2d 124, 126.

      . See, State v. Haynes, 09-109, p. 8 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 331, writ denied, 10-0493 (La.9/24/10), 45 So.3d 1073.

      . See, State v. Santos, 09-789, p. 8 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 172, writ denied, 10-1080 (La. 11/24/10), 50 So.3d 828.

      . State v. Santos, 09-789 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 172-73, writ denied, 10-1080 (La. 11/24/10), 50 So.3d 828.

      . State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-0380 (La.9/19/08), 992 So.2d 952.

      . See, Thongsavanh v. Schexnayder, 09-1462 (La.App. 1 Cir. 5/7/10), 40 So.3d 989, 997, writ denied, 10-1295 (La.9/24/10), 45 So.3d 1074.

      . See, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

      . See, State v. Morgan, 06-529, p. 23 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213.


author: GREMILLION, Judge.

text:
    Succession of Achille BIJEAUX v. Mildred Bourque BROYLES, et al.
    No. 11-830.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.
    Rehearing Denied March 28, 2012.

      David John Calogero, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, for Appellee, David Anderson Alford, Stanford B. Gau-thier, II.
    Stan Gauthier, II, APLC, Michael G. Johnston, II, Attorney at Law, Lafayette, LA, for Appellant, Succession of Achille Bijeaux.
    James Patrick MacManus, Attorney at Law, Lafayette, LA, for Appellee, Mildred Bourque Broyles.
    Thomas A. Roberts, Larry E. Mobley, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, for Ap-pellees, David Anderson Alford, Morgan, Stanley, Smith, Barney, LLC.
    G. Philip Shuler, III, H. Michael Bush, Kurt D. Duncan, Chaffe, McCall, LLP, New Orleans, LA, for Appellee, John Hancock Life Insurance (U.S.A.).
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ,The Succession of Achille Bijeaux appeals the judgment dismissing its demands against John Hancock Life Insurance (U.S.A.) on summary judgment and against David A. Alford and Morgan Stanley Smith Barney, L.L.C. (Smith Barney) on exceptions of peremption. For the reasons that follow, we affirm.

FACTS

The Succession filed suit on July 21, 2005, against a number of defendants, alleging that in February and March, 1998, Mildred Broyles forged Achille Bijeaux’s signatures on applications for two annuity contracts that named Broyles as beneficiary. It was also alleged that Alford acted as the agent of John Hancock (then known as Manufacturer’s Life) and the employee of Smith Barney and that he completed the applications and assisted Broyles in the forgery. Broyles then allegedly converted Mr. Bijeaux’s funds from two banks to pay the annuity contracts, again with Alford’s assistance.

Mr. Bijeaux died in January 2003. Broyles allegedly filed benefits statements on the two annuities, again assisted by Alford, who submitted the claims to John Hancock, which John Hancock paid. The Succession demanded damages for the conversion of Mr. Bijeaux’s funds from Broyles and the funds themselves from the remaining defendants.

Alford and Smith Barney filed exceptions of peremption, asserting that the claims against them were barred by La. R.S. 9:5606, which provides for a three-year peremptive period for claims for damages against insurance agents, brokers, solicitors, or other licensees, calculated from the date of the alleged act or omission. John Hancock filed a similar exception of peremption and a motion for summary judgment. The motion for summary judgment was based on John Hancock’s contention that Alford was not its agent and it was not liable for any of his actions, Ron the immunity from liability for paying the named beneficiary prior to notice of a dispute found in La.R.S. 22:877, and on per-emption under La.R.S. 9:5606.

The Succession maintained that La.R.S. 9:5606 did not apply at all. Its argument was premised upon its contention that Bijeaux did not contract for insurance services, and as he did not so contract, there was no “engagement to provide insurance services,” as required by the statute.

The exceptions and motion for summary judgment were heard on the same date. The trial court ruled in favor of Alford, Smith Barney, and John Hancock. This appeal followed.

ASSIGNMENTS OF ERROR

The Succession assigns as errors the granting of the exceptions of peremption in favor of Alford and Smith Barney and the granting of John Hancock’s motion for summary judgment.

ANALYSIS

The exceptions of peremption

Louisiana Revised Statute 9:5606 provides (Emphasis added):

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Ariicle 1953.
|SD. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

“Peremption” is defined as a period of time fixed by law for the existence of a right. La.Civ.Code art. 3458. Once a peremptive period tolls, the obligation sought to be enforced is extinguished. Id.

The Succession argues that section 5606 does not apply because this was not an engagement to provide insurance services. This was not an engagement to provide insurance services, the Succession argues, because its evidence would have demonstrated that Bijeaux did not consent to the engagement. The Succession also complains of the procedure employed by the trial court at the hearing on the exceptions.

The Succession moved that the exceptions be dismissed because Smith Barney and Alford had presented no evidence to demonstrate that there was an insuring agreement, as the annuities were not filed. Smith Barney then offered the depositions of Alford and Broyles, the Succession’s petition, and a motion to traverse the detailed descriptive list filed in the succession proceedings. The Succession’s counsel did not object to the introduction of these before the trial court admitted them. The trial court then maintained the exceptions without allowing the Succession to introduce evidence in opposition to the exceptions. That testimony was then proffered.

An exception of peremption is considered a peremptory exception. Rando v. Anco Insulations, Inc., 08-1163 (La.5/22/09), 16 So.3d 1065. The party who files the exception bears the burden of proof, unless the matter is facially barred. Id. In the event that peremption is evident from the face of the pleadings, the burden of proof shifts to the plaintiff. Id. If evidence is introduced, the trial court’s ^conclusions are reviewed under the manifest error/clearly wrong standard. Id. Further, “[p]eremptive statutes are strictly construed against peremption and in favor of the claim. Of the possible constructions, the one that maintains the enforcement of the claim or action, rather than the one that bars enforcement should be adopted.” Id., at 1083.

Here, the trial court ruled on the exception before allowing the Succession to offer testimony. This constituted legal error. Evidence is allowed on exceptions of peremption. Id. However, because the succession proffered evidence, and this court is constitutionally vested with jurisdiction to review findings of law and fact, we are required to render judgment on a complete record. La. Code Civ.P. art. 2164; Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975).

The Succession argues that this was not an engagement to provide insurance services because the evidence fails to demonstrate that Bijeaux consented to the purchase of the annuities. It claims that Alford’s testimony, in which he asserted that Bijeaux told him in English that he wanted to name Broyles as the beneficiary, was in complete contrast to the testimonies of the other witnesses whose testimony was proffered. Because Bijeaux did not understand English, he could have neither consented to purchasing the annuities nor to naming Broyles the beneficiary.

We need not reach this issue. Alford’s alleged acts occurred in 1998. The annuities were delivered to Achille Bijeaux. The annuities clearly identified Broyles as the beneficiary. It was incumbent upon Bijeaux to review the annuities and if he did not understand them, to make inquiries. His receipt of the policies represented constructive notice sufficient to commence the tolling of peremption. Boes Iron Works, L.L.C. v. Galatas, 07-336 (La.App. 5 Cir. 12/11/07), 974 So.2d 713; Roadhouse Bar-B-Que, Inc. v. Certain Underwriters at Lloyds, 04-1697 (La.App. 3 Cir. 5/4/05), 909 So.2d 619. Because the suit was filed more than three Lyears after the alleged act, omission, or neglect, it is barred by peremption. The fraud exception to La.R.S. 9:5606 only applies to the one-year peremptive period. Boes Iron Works, L.L.C., 974 So.2d 713.

The motion by John Hancock

The provisions of La.R.S. 9:5606 apply equally to the situation of John Hancock as they do to that of Smith Barney and Alford. The suit was filed well after the preemptive period expired. Because the claim against John Hancock is preempted, we need not examine the other issues raised in its motion for summary judgment.

CONCLUSION

The transactions involving the purchase of the annuities by Bijeaux are subject to the three-year preemptive period created in La.R.S. 9:5606. The judgment of the trial court dismissing the demands against David Alford, Smith Barney, and John Hancock are affirmed. All costs of this proceeding are taxed to appellant, the Succession of Achille Bijeaux.

AFFIRMED.

SAUNDERS, J., dissents.


text:
    Bridgette JOHNSON v. WAL-MART STORES, INC.
    No. 11-1153.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.
    Rehearing Denied March 28, 2012.

      Michael B. Miller, Jacqueline B. Ma-nekce, Attorneys at Law, Crowley, LA, for Plaintiff/Appellant, Bridgette Johnson.
    Keith Joseph Landry, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JjAppellant, Bridgette Johnson, appeals the judgment rendered by the Workers’ Compensation Judge (WCJ) awarding her temporary total disability benefits, penalties, and attorney fees, but denying her demand for additional penalties and attorney fees for failure to pay indemnity benefits of $20.86 for the first day she was eligible to receive them, and for denying her request for a CT scan procedure. For the reasons that follow, we affirm as amended and render judgment awarding Johnson additional attorney fees.

FACTS

On September 27, 2008, Johnson, an employee at a Wal-Mart distribution center, was lifting a box when she felt a “pop” in her low back. She reported this to her supervisor and was seen that day at Doctors’ Hospital of Opelousas for complaints of low-back pain. The emergency room physician, Dr. Thomas Wilson, prescribed ibuprofen and Skelaxin and instructed Johnson to do no lifting of more than ten pounds for five days. Johnson was discharged from the hospital that day.

Johnson’s primary care physician was Dr. John Tassin of Ville Platte, Louisiana. She saw Dr. Tassin on October 1, 2008, for complaints of headaches and neck, low-back, and hip pain. Dr. Tassin prescribed somewhat stronger medication than did Dr. Wilson and instructed Johnson not to return to work. A notation on this order dated Johnson’s no-work status to September 29. Johnson returned to Dr. Tassin on October 3, 2008, with similar complaints. Dr. Tassin referred Johnson to Dr. Louis Blanda, a Lafayette, Louisiana, orthopaedic surgeon.

Dr. Blanda saw Johnson on October 9, 2008. She complained of aching neck pain and stabbing low back pain. Dr. Blanda prescribed physical therapy and Lortab for pain. Johnson again saw Dr. Blanda on October 30. Her pain had increased. Dr. Blanda discontinued Johnson’s physical therapy, ordered light ^activities and home exercises, a TENS unit, and cervical and lumbar MRI scans, which were scheduled for November 21, 2008. The MRI showed a small central annual protrusion at the C6-7 level and edema at the T12 level. Johnson had no disk herniation. She returned to Dr. Blanda on December 9, at which time he reviewed the MRI and recommended oral steroids and Tylox. On January 22, 2009, Johnson informed Bland that she did not take the full course of oral steroids because she thought it made her heart race. Her lower back complaints were significantly worse than her neck, and was radiating into both legs as low as the thighs. Dr. Blanda recommended that Johnson receive an epidural steroid injection. The injection was scheduled for February 26; however, Johnson found out she was pregnant in February and the injection was cancelled on Dr. Blanda’s order. She also was told to discontinue her medications.

In March 2009, Johnson’s pain was worse. She was to check with her obstetrician to see what medications she was allowed to take. Dr. Blanda prescribed a maternity corset for Johnson to .wear. In June, Johnson called Dr. Blanda’s office with increased complaints in her back, neck, and hips. Dr. Blanda’s physician’s assistant, Steve Scott, advised that she could have massage therapy, but was to check with her obstetrician about medications. In July, Dr. Blanda saw Johnson again and again was told that her pain was worse, but that her obstetrician told her that massage therapy was not an option because he would not want her having any “rub-down gels.” She was limited to taking Tylenol. By December, Johnson had delivered her child and again sought to have the epidural steroid injection. Dr. Blanda placed Johnson back on Lortab, scheduled the injection procedure, and told Johnson to return in three months.

Dr. Blanda next saw Johnson in March 2010. Her complaints at that time continued to be of pain in her low back and neck. Dr. Blanda recommended and [^scheduled a CT scan of Johnson’s low back and pelvis. Wal-Mart approved the scan of the low back but not of the pelvis. The lumbar CT scan demonstrated a herniated disk at the L4-5 level. Johnson returned to Dr. Blanda in April 2010 with continued back pain and pain in her right leg. Based on the CT scan, Dr. Blanda recommended that Johnson undergo a microdiskectomy at the L4-5 level.

By the time Johnson next saw Dr. Blan-da, June 10, 2010, her surgery had still not been approved. She had the same complaints of pain and demonstrated neurological deficits in her lower extremities, particularly on the right side. Wal-Mart’s claims administrator, Claims Management, Inc., authorized the surgery four days later. Although the record is not clear, it appears Johnson had not had the lumbar surgery as of the trial in June 2010.

The WCJ rendered oral reasons for judgment in March 2011. Pertinent to the issues presented on appeal, the WCJ found that Johnson was not entitled to a presumption of a 40-hour work week when calculating her average weekly wage as her responsibilities as a single mother regularly required that she work less than full-time. The WCJ also found that Wal-Mart should be penalized $2,000.00 for failing to timely pay the emergency room bill of September 27, 2008, $400.00 for failing to pay Johnson’s weekly indemnity for the pay period beginning on September 29, 2008, the so-called “waiting week,” and $100.00 for untimely payment of the first payment of weekly indemnity. The WCJ’s ruling was silent on an award to Johnson a penalty for Wal-Mart’s failure to pay indemnity for October 6, 2008, which Johnson claimed was the first day she was owed indemnity beyond the waiting week.

The WCJ also refused to assess a penalty for failure to authorize the pelvic CT scan. The WCJ’s reasoning was as follows:

|4I do not assess a penalty for the failure to immediately or ever approve the pelvic CT. It was requested after childbirth. As I mentioned earlier Ms. Johnson had, had a child during the course of her medical treatment. And the pelvic CT was recommended after she had her childbirth. She had no problems with the pelvis before she had the child. This was the first mention of any pelvic problems. Dr. Blanda does mention and consistently state a pelvic CT as opposed to a hip CT. There is no statement of causal relation to a pelvis problem by Dr. Blanda, and Dr. Blanda does not re-urge performance of the pelvic CT because the lumbar CT was immediately approved and performed. A herniated disc was found and surgery recommended.
In his April 13, 2010 report, Dr. Blan-da mentions that the pelvic CT was not authorized. He does not, in his recommendations, again recommend the pelvic CT that he had recommended the month before.
Under these facts, I do find that the claim for the approval or necessity of the pelvic CT was reasonably controverted.

The WCJ did not address in her oral reasons the issue of legal interest on amounts awarded. Johnson’s counsel was to prepare the judgment for the WCJ to sign. That judgment did not award legal interest on any sums, and no such language was inserted into the judgment for an award of interest.

ASSIGNMENTS OF ERROR

Johnson assigns the following errors:

1. The worker’s [sic] compensation judge erred in not awarding Ms. Johnson a $2,000.00 penalty for Wal-Mart Stores, Inc.’s failure to pay indemnity benefits for October 6, 2008.
2. The worker’s [sic] compensation judge erred in finding that the CT scan of the pelvis recommended by Dr. Blanda on March 16, 2010 was not causally related to Ms. Johnson’s accident and/or injuries and in not awarding a $2,000.00 penalty for Wal-Mart Stores, Inc.’s failure to reasonably controvert the need for the testing.
3.The worker’s [sic] compensation judge erred in not awarding legal interest and expenses.

ANALYSIS

An employer’s obligation to pay weekly indemnity benefits to a disabled worker is governed by La.R.S. 23:1221, et seq. Louisiana Revised Statute 23:1224 |sprovides, “No compensation shall be paid for the first week after the injury is received; provided, that in cases where disability from injury continues for six weeks or longer after date of the accident, compensation for the first week shall be paid after the first six weeks have elapsed.” This first week is known colloquially as the “waiting week.” In the context of Johnson’s claim, when the waiting week began was an issue because while Johnson visited the emergency room on September 27, 2008, she was not told by Dr. Tassin that she was not to work until October 1. Her weekly indemnity benefits were not paid by Wal-Mart to not begin until October 7. The WCJ found that the waiting week started on October 6 and Wal-Mart had under paid Johnson by a day. She awarded Johnson a $400.00 penalty. Johnson contends that the penalty should be $2,000.00.

Louisiana Revised Statute 23:1201(F) provides that failure to pay compensation “shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation ... or fifty dollars per calendar day.” However, the imposition of penalties falls within the WCJ’s discretion. Mauton v. Gulfstream Services, 08-1186 (La.App. 3 Cir. 5/6/09), 11 So.3d 1135. Further, penalties should only be imposed when “the facts clearly negate good faith and just cause in refusing to pay.” Id. at 1137 (quoting Young v. Christus Schumpert Med. Ctr., 39,593, p. 10 (La.App. 2 Cir. 5/11/05), 902 So.2d 1180, 1186-87). Here, penalties were awarded and the issue is the amount of the penalty.

We note that the statutory language seems to mandate the imposition of penalties. However, the statute states that the amount awarded is “up to” twelve percent or $50.00 per day. La.R.S. 23:1201(F). We find no abuse of the WCJ’s discretion.

| ^Johnson also complains that the WCJ found that the CT scan of the pelvis recommended by Dr. Blanda was not causally related to her accident and failed to award her a penalty for Wal-Mart’s failure to authorize the test. She points out that the medical records contain references to pain in the “hips.” This evidence, Johnson argues, entitles her to a presumption that the need for the pelvic CT scan is causally related to the accident. See Richard v. Vermilion Hosp., 10-385 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, writ denied, 10-1611 (La.10/8/10), 46 So.3d 1269. Accordingly, she contends the CT scan is reasonable and medically necessary treatment the law requires Wal-Mart to provide. See La. R.S. 23:1203.

Wal-Mart contends that Johnson is not entitled to a presumption that the CT scan is causally related to the accident. It properly points out that before the presumption attaches, the medical evidence must show that there is a reasonable possibility of a causal connection to the accident. Richard, 41 So.3d 1219. The plaintiff must also show that before the accident she was in good health, but afterward she exhibited a disabling condition that continuously manifested itself thereafter. Id. Proving these facts is a burden borne by the plaintiff. Id.

The WCJ was not impressed by Johnson’s attempt to carry her burden of proof. Of particular note to the WCJ was the fact that the CT scan was not recommended by Dr. Blanda until after the birth of Johnson’s child. The WCJ distinguished between “hip” and “pelvis” in terms of complaints. Further, Dr. Blanda’s records do not tie the CT scan to the accident, and after the CT scan of the lumbar area was approved, those records do not reiterate the need for the pelvic CT scan. These factors convinced the WCJ that Johnson had failed to carry her burden of proof.

|7The factual findings of the WCJ are reviewed under the manifest error standard. Id. Under that standard, the reviewing court must determine that there is no reasonable basis in the record to support the WCJ’s findings. Id.; Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the WCJ’s findings cannot be manifestly erroneous. Id. Further, the reviewing court may not simply skim the record to find evidence that contradicts or supports the WCJ’s findings, but must instead review the record in its entirety. Id.

We find that the record reasonably supports the WCJ’s factual findings regarding the pelvic or hip issues, regardless of whether one deems those terms synonymous. Johnson failed in two of the requirements for carrying her burden of proof: the record does not establish the required element that Johnson prove that she was in good health before the accident, and, as pertinent, she failed to establish that the hip or pelvis condition was continuously manifested after the accident. Dr. Blanda’s records do not contain any reference to hip or pelvis complaints between October 8, 2008, and her discovery of her pregnancy in February 2009.

Johnson also appeals the failure of the WCJ to award pre-judgment legal interest. As earlier noted, Johnson’s counsel prepared the judgment, which omitted any reference to legal interest. Nevertheless, La.R.S. 23:1201.3 provides that compensation awarded and all payments thereof ordered by the WCJ shall bear judicial interest from the date it was due until paid. We have long ruled that the interest provided for in Section 1201.3 is mandatory. See Crooks v. Town of Ball, 94-466 (La.App. 3 Cir. 11/2/94), 649 So.2d 597.

But Johnson does not stop there: because she prayed for penalties and attorney fees, she claims she is entitled to prejudgment legal interest on those awards as well. Penalties and attorney fees are not “compensation” within the ] «purview of La. R.S. 23:1201.3. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. As the Louisiana Supreme Court recognized in Smith v. Quarles Drilling Co., 04-0179, pp. 6-7 (La.10/29/04), 885 So.2d 562, 566-67 (footnote omitted)(alteration in original):

The judgments rendered by the workers’ compensation judge and the court of appeal in this matter are devoid of an award of interest accruing on the attorney fee award. It has long been the rule that interest cannot be recovered on a judgment which is silent as to interest. Factors’ & Traders’ Ins. Co. v. New Harbor Prot. Co., 39 La.Ann. 583, 2 So. 407 (La.1887); Succession of Anderson, 33 La.Ann. 581 (La.1881). An exception exists when interest is provided by statute. We agree that “legal [or judicial] interest is statutory and should be strictly construed.” Cole v. Celotex Corporation, 599 So.2d 1058, 1081 (La.1992), quoting Cole v. Celotex Corporation, 588 So.2d 376, 389 (La.App. 3rd Cir.1991), which in turn cites Merchant v. Montgomery Ward & Co., 83 So.2d 920, 926 (La.App. 1st Cir.1955), a case in which then Judge Tate writing for the court states, “[Judicial] interest is somewhat in the nature of a penalty, and as applied to the present facts the statute should be strictly construed.”

Interest on penalties and attorney fees are not mandated by statute; thus, the judgment’s silence amounts to a denial of interest on those sums. Johnson is entitled to prejudgment judicial interest only on the “waiting week” indemnity that was not paid. She is, however, entitled to post-judgment legal interest on all sums awarded, to be calculated from the date those sums were awarded. Sharbono, 696 So.2d 1382.

Johnson also appeals the WCJ’s failure to award expenses in the amount of $470.56. These expenses represent telephone charges, postage, mileage, photocopies, and the copying fees assessed by Drs. Blanda and Steven Staires and Doctors’ Hospital for Johnson’s medical records. Awards of court costs at the trial level are governed by La.Code Civ.P. art. 1920. The article provides that when the judgment is silent on the issue, costs “shall be paid by the party cast, and may be taxed by a rule to show cause.” No such rule was filed in this case. We are empowered and mandated to “render any judgment which is just, legal, and proper 13upon the record on appeal.” La.Code Civ.P. art. 2164. The evidence regarding the costs Johnson is seeking consists of her counsel’s affidavit, which itemizes those costs. Based on the record, we find it proper to render judgment on the cost issue and amend the judgment to tax Wal-Mart with costs of court in the amount of $470.56.

Lastly, Johnson seeks additional attorney fees for her counsel’s work on appeal. The award of additional attorney fees on appeal is generally premised upon the employee successfully defending the WCJ’s judgment on appeal. See Bourgeois v. Brown’s Deli & Market, Inc., 09-290 (La.App. 3 Cir. 10/14/09), 21 So.3d 1072; Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313; LeMelle v. Wal-Mart Stores, Inc., 04-527 (La.App. 3 Cir. 9/29/04), 883 So.2d 526. In LeMelle, we awarded a claimant additional fees for appeal when both parties appealed and the employee was only successful in defending the judgment against the employer’s appeal. We are not aware of any instance in which additional fees were awarded a claimant who was the only appellant and who was largely unsuccessful in obtaining relief; indeed, that would only encourage appeals of dubious merit. We decline to award any additional attorney fees for work on appeal.

CONCLUSION

The award of a penalty of $400.00 for Wal-Mart’s failure to pay Johnson’s “waiting week” did not constitute an abuse of the WCJ’s discretion. A penalty of $2,000.00 is allowed by statute, but is not mandated.

The WCJ was not manifestly erroneous in finding that Johnson failed to carry her burden of proof that the pelvic CT scan was causally related to her on-the-job accident. The condition was not continuously manifested from the date of the accident, and Johnson failed to establish that she was in good health before the |l0accident. She was not entitled to a presumption of causation, and no medical evidence was introduced to establish a causal relationship.

Johnson is not entitled to pre-judgment judicial interest on her demands for penalties and attorney fees. These items are not “compensation” for purposes of the award of interest as a matter of law. She is, however, entitled to pre-judgment judicial interest as a matter of law on the indemnity owed. She is further entitled to post-judgment interest on the penalties and attorney fees awarded.

We amend the judgment to award costs of court to Johnson of $470.56.

Lastly, because we have not awarded additional attorney fees to an appellant who has not succeeded in obtaining relief on appeal, we decline to award any additional attorney fees in this matter.

Costs of this appeal are taxed to appellant, Bridgette Johnson.

AFFIRMED AS AMENDED.

      . Johnson must rely on the presumption because the medical records do not associate the need for the pelvic scan with her on-the-job accident, and Johnson presented no medical testimony establishing a causal connection.


author: JUDE G. GRAVOIS, Judge. EDWARDS, C.J.,

text:
    Michael O. READ v. WILLWOODS COMMUNITY.
    No. 11-CA-222.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Daniel Lund, Ryan M. McCabe, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    F. Evans Schmidt, Attorney at Law, New Orleans, LA, Robert J. David, Michael J. Juneau, Karen T. Bordelon, Attorneys at Law, Lafayette, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ¡¡Plaintiff, Michael O. Read, appeals a grant of summary judgment in favor of defendant, Willwoods Community (“Will-woods”), which found that as a matter of law, plaintiff failed to prove that he had an employment contract with defendant for a definite term. For the following reasons, we reverse, finding that this matter was not appropriately decided on summary judgment, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Michael 0. Read, filed suit against defendant Willwoods alleging that the parties had entered into an oral employment contract for a minimum defined term of five years, and that Willwoods breached that contract by ^terminating Mr. Read after only one year without identifying any serious ground of complaint or issue of cause for the termination.

Mr. Read’s petition alleged that he was approached by Willwoods’ Chairman of the Board, John Becker, in early 2009 to submit his résumé for the newly created position of Executive Director. This position was created for the purpose of grooming a successor to the President of Willwoods, Father Thomas Chambers, who was then 74 years old. Mr. Read, a lawyer, insurance executive, and banker, who was then currently employed by Capital One Bank, also had a twenty-three year working relationship with Father Chambers, they having served together on the Holy Cross College Board of Regents, as well as having worked together in other church-related activities. Mr. Read and Father Chambers also had a very close personal relationship as well, with Father Chambers being a frequent visitor and companion to the Read family home and having performed the wedding ceremonies of at least two of Mr. Read’s children. Mr. Read also stated in his deposition that he also knew the members of the Hiring Committee very well. The Hiring Committee, formed for the purpose of finding the Executive Director, consisted of then members of Willwoods’ Board of Directors: John Becker, Patrick Veters, Msgr. Christopher Nalty, and Dr. Frank Schmidt. He described them in the trial court and in brief to this Court as “friends of longstanding.”

The record shows that while the Hiring Committee also considered several other candidates for the position, they considered Mr. Read to be the “best candidate” and several days after a formal interview, offered him the position, which he accepted. The contract was oral. The terms were never reduced to writing. Further, Mr. Read’s job description was never reduced to writing. Mr. Read alleged, however, that during the interview, Mr. Veters asked him if he was willing to commit to working for at least “five to six years,” as the Hiring | ^Committee did not wish to “go through this process” again anytime soon. Mr. Read agreed that he was prepared to commit to this term. Mr. Read asserts that one of the reasons for his agreement was that he would be leaving longstanding employment that he considered secure, and that he had family obligations that required that he have secure employment, facts of which the Hiring Committee was well aware given their longstanding mutual friendships. It appears to be uncontested that the term of employment was not mentioned again, and was not discussed when Mr. Read accepted the offer of employment and began working as Willwoods’ Executive Director on June 1, 2009.

Willwoods terminated Mr. Read’s employment on June 22, 2010 after first asking him to resign voluntarily, which he refused to do. Mr. Read characterized the termination as completely unexpected and without any prior complaint or ground of complaint about his service. This suit for damages followed. Willwoods answered and requested a jury trial.

After discovery was conducted and depositions were taken, Willwoods moved for a summary judgment, arguing that as a matter of law, Mr. Read could not establish that he was employed for a definite term by Willwoods. Willwoods argued that as a matter of law, the question posed by Mr. Veters to Mr. Read at the interview did not establish an employment contract for a definite term. The motion was supported with deposition testimony of Mr. Read and various witnesses. Mr. Read opposed the motion for summary judgment, arguing that the record as a whole established a genuine issue of material fact as to whether he had been offered employment for a definite term. He also supported his position with various deposition testimony and his sworn affidavit.

The trial court granted Willwoods’ motion for summary judgment and dismissed plaintiffs suit against Willwoods with prejudice, finding that if the term [ ,;of employment was so important to Mr. Read, he should have confirmed it in some way when he accepted the offer of employment. The trial court further found that Mr. Read failed to overcome the defendant’s arguments by “substantial facts,” and that some of the “corroborating circumstances” necessary to prove a term of employment “were totally within the mind of the plaintiff,” i.e., that it was the plaintiffs subjective belief that he had been offered employment with a definite term of at least five years. This appeal followed.

APPLICABLE LAW AND ANALYSIS

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment |7should be granted. LSA-C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.

Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La.1989); Greer v. Dresser Indus. Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235; Helwick v. Montgomery Ventures Ltd., 95-765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, writ denied, 96-175 (La.3/15/96), 669 So.2d 424.

In determining whether an issue is genuine for purposes of a summary judgment, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Coto v. J. Ray McDemott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828; Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490; Helwick v. Montgomery Ventures Ltd., 95-0765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306.

In Louisiana, there are two types of contracts for hire: 1) the limited duration contract, and 2) the terminable at will contract. The distinction between the two is that under a limited duration contract, the parties have agreed to be bound for a certain period of time during which the employee is not free to depart without | assigning cause, nor is the employer at liberty to dismiss the employee without assigning any reason for so doing. See L.S.A.-C.C. arts. 2746-2750; see also Brodhead v. Board of Trustees for State Colleges and Universities, et al., 588 So.2d 748 (La.App. 1 Cir.1991). The parties must consent to the period of time that is to be the duration of the contract. The party relying on an alleged contract of employment for a set duration of time has the burden of proof that there was a meeting of the minds on the length of time of the employment. Under facts showing no meeting of the minds, the contract of employment for a set duration of time is void for lack of consent, and what remains is a contract of employment terminable at will. Id.

The fact that Mr. Read, the Hiring Committee members, and Father Chambers had longstanding personal and working relationships of varying degrees appears to be uncontested. The facts that Mr. Veters asked Mr. Read in the interview if he was willing to commit to a term of five to six years if hired, and that Mr. Read agreed to that commitment in the interview, also appear to be uncontested. Likewise, it appears to be uncontested that when Mr. Read was orally offered the employment, the term was not mentioned at that time, and neither the contract of employment nor Mr. Read’s job description were reduced to writing. What is contested, however, is whether those facts show that Willwoods is entitled to judgment as a matter of law. We find that at this stage of the proceeding, they do not.

We agree with Mr. Read that the trial court’s reasons for judgment make it clear that he determined the parties’ intent, which is a subjective fact, by weighing the evidence, evaluating the testimony, and making credibility determinations, which is impermissible in summary judgment practice. We do not hold that a single statement, in and of itself, made at a job interview is necessarily enough to create a contract with a definite term of employment. In this case, however, the |3intent and effect of Mr. Veters’ statement to Mr. Read at the job interview must be considered within the entire context of the parties’ relationships and history, and the entire interview process. This is the very “judicial determination” of subjective facts such as motive, intent, good faith or knowledge that is prohibited on summary judgment, which is what the trial court did here. This was inappropriate on a motion for summary judgment.

We are guided not only by the law on summary judgment as stated above, but also by case law that has interpreted LSA-C.C. art. 2749 relative to proving oral contracts for employment that contain definite terms of length. In Brodhead, supra, the court determined after a trial on the merits that the entirety of the evidence, which consisted of various oral representations and statements and written drafts and proposals, supported plaintiffs allegation that he had been offered and had accepted an employment contract for a definite term of five years.

Similarly, in Meredith v. Louisiana Federation of Teachers, 209 F.8d 398 (5th Cir.2000), a jury decided that under Louisiana law, “substantial evidence” showed that the plaintiff had negotiated a contract for a definite term of employment with the defendant, when there was no written contract to interpret.

Our reversal of summary judgment herein is not a determination of which party should succeed on the merits, but is only a determination that this matter was not appropriately decided on summary judgment.

|in CONCLUSION

Accordingly, for the reasons expressed above, the grant of summary judgment in favor of defendant Willwoods is reversed, and the matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED

EDWARDS, J., dissents with reasons.

EDWARDS, C.J.,

dissents.

|)I disagree with the majority’s conclusion that the trial court weighed the evidence, evaluated the testimony, and made credibility determinations. In its Motion for Summary Judgment, Willwoods contended that Mr. Read could not prove the existence of an oral contract for a specific period of time and that there was no meeting of the minds. Willwoods pointed out that Mr. Read could not prove an essential element of his claim — that he was hired for a certain determinate term. The party relying on an alleged contract of employment for a set duration of time has the burden of proof that there was a meeting of the minds on the length of time of the employment.

La. C.C. art. 1846 requires that proof of an oral contract in excess of $500 must be proved by at least one witness and other corroborating evidence. While that witness may be the plaintiff, the corroborating evidence must come from another source.

I agree that there is no dispute as to whether an employment contract existed. However, in opposing summary judgment, Mr. Read did not provide corroborating evidence of the issue before us; that is, there was no evidence that the contract was one of limited duration rather than one terminable at will.

The portion of Mr. Veters’ deposition in the record reveals that the hiring committee wanted “somebody who was going to make a commitment to Willwoods for a certain period of time.” Mr. Veters did not recall, one way or the pother, whether he asked Mr. Read to commit for a certain period of time. “There was never a time in my recollection, either with the search committee or with Mike, that we ever discussed a specific tenure for him to be at Willwoods.” The only testimony or evidence regarding a certain determinate term was that of Mr. Read. Accordingly, there was no corroborating evidence that the contract was one of a determinate duration.

The existence of a contractual relationship is a question of law and not a question of fact and, therefore, it is a proper basis for the granting of a motion for summary judgment. Once Willwoods pointed out the absence of evidence for a contract term, it was incumbent upon Mr. Read to produce evidence to show that such a contract did exist. I am unable to conclude that testimony regarding the relationship between the parties, absent any specific evidence regarding the issue of a determinate term, is relevant to our inquiry.

For these reasons, I respectfully dissent.

      . Willwoods is a private charitable foundation subject to the "precepts of the Roman Catholic Church.” It is uncontested in this case that Willwoods, like any private employer in Louisiana, is subject to Louisiana employment statutes and the laws relating to obligations.

      . The court of appeal reversed, however, finding a lack of substantial evidence that the parties ever agreed to a definite term of employment. This reversal does not, however, undermine the point for which we rely on this case, which is that the matter, which involved the interpretation of a combination of oral representations and written offers and counter offers, was appropriately decided in a trial on the merits, not summary judgment, where the trier of fact could properly evaluate testimony, credibility, and thereby determine subjective facts.

      . Brodhead v. Bd. of Trustees for State Colleges & Universities, 588 So.2d 748 (La.App. 1 Cir. 1992).

      . Louisiana Weld & Press, L.L.C. v. Loupe Const., 09-720 (La.App. 5 Cir. 1/12/10), 31 So.3d 467.

      . See, e.g., McPherson v. Cingular Wireless, LLC, 07-0462 (La.App. 3 Cir. 10/3/07), 967 So.2d 573, 579 writ not considered, 07-2147 (La. 1/7/08), 972 So.2d 1150. See also, Atherton v. Palermo, 11-256 (La.App. 3 Cir. 10/26/11), 76 So.3d 1253.