author: GENOVESE, Judge.

text:
    STATE of Louisiana v. H.L.J.
    No. 2008-1070.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, H.L.J.
    Trent S. Brignac, District Attorney-Thirteenth Judicial District, Kathy Meyers, Assistant District Attorney, Ville Platte, Louisiana, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| PROCEDURAL HISTORY

On November 20, 2007, Defendant, H.L.J., was indicted by an Evangeline Parish grand jury on one count of aggravated rape. On June 16, 2008, pursuant to trial by jury, the jury returned a responsive verdict of guilty of forcible rape in violation of La.R.S. 14:42.1.

On October 2, 2008, Defendant was sentenced to serve twenty-five years at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence. Defendant moved for reconsideration of his sentence on the grounds of excessiveness, which the trial court denied.

Defendant appeals his conviction and sentence, alleging insufficiency of the evidence and excessive sentence as his assignments of error. For the following reasons, we affirm Defendant’s conviction and sentence, but amend his sentence to reflect that he is denied diminution of sentence pursuant to La.Code CrimJP. art. 890.1(B) as opposed to La.R.S. 15:571.3.

STATEMENT OF FACTS

Lieutenant Chris Godeaux, of the Mamou Police Department, was the first witness to testify at trial. Lieutenant Godeaux was on duty and patrolling by himself in the early morning hours of August 19, 2007, when the dispatcher sent him to a particular address in Mamou. When he arrived at the address, Lieutenant Godeaux heard a male and female arguing inside the residence. He knocked on the door, and Defendant, who was completely naked, answered the door. At that time, Defendant’s estranged wife, B.F.J., exited the house wearing a pink nightgown and appeared | .¿hysterical. Lieutenant Godeaux then instructed Defendant to dress and exit the residence.

Lieutenant Godeaux reported that, after Defendant put on a pair of pants and exited the home, he handcuffed Defendant and detained him on the porch until he could determine what had happened. Lieutenant Godeaux then went to find B.F.J., who had gone to a residence across the street. B.F.J., who was still hysterical and crying, stated that she awoke to find Defendant standing in her bedroom. When she asked why he was there, Defendant told her, “I came here to kill you.” Defendant had a knife in his hand. B.F.J. instructed Defendant to leave, but he refused. Defendant repeated that he was going to kill her and told her that before he killed her, “[he was] gonna get [him] some.” Lieutenant Godeaux described B.F.J. as being distraught and “a mess” during the interview.

Lieutenant Godeaux related that B.F.J. told him Defendant had raped her, and, in accordance with protocol, he contacted Chief Dupuis, Assistant Chief Katina Richard, and Acadian Ambulance. Once an ambulance arrived, the paramedics transported B.F.J. to the hospital. B.F.J. was still very hysterical and frantic when Lieutenant Godeaux turned her over to the paramedics.

Before she left for the hospital, B.F.J. told Lieutenant Godeaux that Defendant had a knife, but that she had been able to get it away from him when he set it on the floor during intercourse. Lieutenant Go-deaux related that B.F.J. told him that she had hidden the knife inside a towel that she had used to clean herself. B.F.J. stated that she had taken the knife with her when she went across the street and dropped it in the ditch. After B.F.J. pointed to where she had dropped the knife, Lieutenant Godeaux, with the assistance of two of B.F.J.’s neighbors, located the weapon and collected it | ¿as evidence. Lieutenant Godeaux and Assistant Chief Richard tagged the knife and locked it away in the evidence room. At trial, the State presented Lieutenant Godeaux with a folding knife in an evidence box, and he identified it as the weapon taken from the ditch.

Lieutenant Godeaux described the ditch as a straight drainage ditch that ran along a roadway intersecting the street where B.F.J. lived. He stated that it had water in it which wet the knife. Lieutenant Go-deaux did not take fingerprints from the knife because of the moisture and because it was recovered from the location pointed out by B.F.J.

Lieutenant Godeaux reported that he and Assistant Chief Richard entered the house for the purpose of investigating and collecting evidence after they had interviewed the witnesses. Defendant did not live in the house with B.F.J. Lieutenant Godeaux inspected B.F.J.’s bedroom and collected evidence therein. When he entered the bedroom, Lieutenant Godeaux noted that the sheets were not on the bed, but were crumpled into one corner of the bed; otherwise, there was no disarray to indicate that there had been a struggle. The sheets were collected as evidence. They appeared to be stained with feces and blood.

Lieutenant Godeaux testified that they also collected the nightgown B.F.J. had been wearing that morning. The sheets and the nightgown were sent to the Acadi-ana Crime Lab. After completing his physical investigation of the site, Lieutenant Godeaux arrested Defendant, transported him to the Mamou Police Department, and advised him of his rights. During booking, Defendant asked Lieutenant Godeaux, “How can a man rape his wife?” Lieutenant Godeaux explained to Defendant that once a woman said “no,” it did not matter whether she was the man’s wife. ^Lieutenant Godeaux finished booking Defendant based on accusations of domestic abuse battery, aggravated rape, and criminal trespass.

Assistant Chief Richard was the second witness to testify at Defendant’s trial. She testified that she had been at home, sleeping, when she was called about a possible rape. Lieutenant Godeaux was present when Assistant Chief Richard arrived at the scene, but B.F.J. was no longer there because she had left with the ambulance service. Assistant Chief Richard assisted Lieutenant Godeaux in stripping the bed and placing the sheets in an evidence bag. Assistant Chief Richard stated she was the one who transported the sheets, B.F.J.’s clothing, and the rape kit to the crime lab.

Lorena Marcantel, B.F.J.’s neighbor across the street, testified as the State’s third witness. Mrs. Marcantel stated that she was not that well-acquainted with B.F.J. and did not visit with her or see her “that much.” Mrs. Marcantel also stated that she was not well-acquainted with Defendant and seldom saw him visiting B.F.J.’s home.

Mrs. Marcantel related that, in the early morning of August 19, 2007, she awoke to B.F.J.’s terrible, horrible cry at her window. This frightened Mrs. Marcantel and caused her to believe something bad had happened. Mrs. Marcantel told her husband, Charles R. Marcantel, to wake up, and then she went to the window and peeped out. When she saw Defendant come onto their property, Mrs. Marcantel told her husband to get up out of bed. Mrs. Marcantel recalled that she called the police while her husband went outside. She stated that her son later went outside, but that she was too frightened to go outside immediately.

Mrs. Marcantel explained that, although it was dark, she thought that Defendant was naked at the time he came onto her property. She stated that she did not see B.F.J. at that time. Mrs. Marcantel went outside later when the police arrived Rand saw and comforted B.F.J., who was standing under their carport. Mrs. Marcantel stated that she put her arms around B.F.J. because B.F.J. was crying in a scary, terrible, and creepy manner.

Charles G. Marcantel, the son of Lorena and Charles R. Marcantel, was the fourth witness to testify for the prosecution. He testified that he knew Defendant and knew B.F.J. a little, but that he did not often visit with them socially. Charles G. Mar-eantel stated that, on the morning of the incident, he heard banging on his window and that B.F.J. was yelling that Defendant was after her and that she needed to call the police. When he went outside, B.F.J. was standing under the Marcantel’s carport “crying a lot,” Defendant was standing at B.F.J.’s house, and “they” were looking for the knife. Charles G. Marcan-tel assisted in searching for the weapon. After the weapon was found, the police took Defendant away.

On further examination, Charles G. Mar-eantel explained that he had gone to the door when he first heard B.F.J. yelling and banging on the window. He reported seeing Defendant at B.FJ.’s house, on the sidewalk or at the steps of the sidewalk at that time. He stated that he thought Defendant had been wearing pants, but it was dark and he was not sure. Charles G. Mareantel also stated that he saw a glimpse of the knife.

Mr. Charles R. Mareantel, Lorena Mar-cantel’s husband and Charles G. Marean-tel’s father, testified as the State’s fifth witness. He testified that, on the morning of August 19, 2007, he was awakened by a lady hitting his house and yelling for help. When he got up and went to the door, he saw the city police on his lot. Mr. Marean-tel stated that he knew Defendant and was able to identify him in court. He testified that Defendant was wearing clothes when he saw him that morning. | (Although Mr. Mareantel did not recognize the voice calling for help, Mrs. Mareantel identified the voice as B.F.J.’s. The only time Mr. Mar-eantel ever saw Defendant at B.F.J.’s residence was that morning.

B.F.J. was the sixth witness to testify for the prosecution. She testified that she was still married to Defendant at the time of trial. B.F.J. stated that she had married Defendant in the summer of 2002, but that they had been separated. She testified that they had no children together, but that she had children from a prior marriage. After B.F.J. separated from Defendant in April 2007, Defendant moved into his mother’s house while B.F.J. continued to rent them home. B.F.J. stated that, following their separation, she never visited with Defendant at his mother’s home; however, Defendant would visit her at her house. She testified that she and Defendant occasionally still engaged in sex, but that he would not go to her house “that often,” and they would not have sex every time he visited. B.F.J. testified that Defendant wanted to move back in, but that she did not encourage Defendant when he said he wanted to come home. B.F.J. explained that she left Defendant because “he was drinking and doing other stuff.”

B.F.J. stated that she was home alone on the morning of the incident, asleep, and was awakened when Defendant turned on the light. B.F.J. did not know how Defendant had gotten into the house because he did not have a key. Defendant “had [a] knife in his hand[,] and he said[,] T came here because I want some in the but’, [sic] for the last time.” Defendant told B.F.J. he was going to kill her, but before he killed her, “he wanted some in the but [sic].” After telling B.F.J. this, Defendant began undressing. B.F.J. was wearing her nightgown and panties. B.F.J. identified the knife that Defendant had been holding as the one he wore on his belt at all times. 17B.F.J. stated that the blade was exposed with Defendant holding the handle.

B.F.J. said that Defendant put the knife to her neck, picked up her nightgown, and ripped off her panties. He then made B.F.J. lay down before having anal sex with her. B.F.J. testified that he held the knife to her neck the entire time. B.F.J. stated that Defendant penetrated her for about an hour and, when he was done, he sat on the end of the bed. B.F.J. told Defendant that she needed to go to the bathroom to wipe. B.F.J. recalled that she had used a towel to clean herself because Defendant’s actions had caused feces to leak from her body.

B.F.J. reported that, when she returned, Defendant was standing by the bed with the knife in his hand. This time, Defendant penetrated her vaginally. B.F.J. explained that she began “flattering” Defendant when he complained that she was not responding. She recalled that she had replied to Defendant’s complaint by telling him that she was not responding because he was holding a knife on her, by asking him why he was doing this to her, and by saying that Defendant did not have to do those things. B.F.J. had covered the knife with a sheet and had been “flattering” Defendant to keep him from harming her or killing her. At some point, Defendant rolled off the bed and said, “my chest.” B.F.J. grabbed the knife from the bed and ran out of the house. B.F.J. recounted that she then crossed a street and two ditches to get to the neighbor’s house where she banged on the bedroom window and told them to call the police because Defendant was trying to kill her. B.F.J. said that she heard Defendant screaming for her to come back and that she saw him run out of the house with no clothes on. B.F.J. kept knocking on the window until Defendant grabbed her and dragged her across the street and through both ditches back onto her property. B.F.J. threw the knife into one of the ditches when Defendant began dragging her back |sacross the street. Defendant told her, “Oh bitch, I should had killed you in there.” B.F.J. then resumed her attempts at “flattering” Defendant.

B.F.J. testified that, once they were back across the street, they went inside her house, where Defendant yelled at her, “[B]itch[J I should [have] killed you.” Defendant began looking in the kitchen utensil drawer, and B.F.J., fearing for her life, continued to flatter him. The police arrived, and Defendant moved toward the living room when he saw the lights flashing. When B.F.J. opened the door, the police officer asked where Defendant was. B.F.J. replied “on the sofa” and ran out of the house.

B.F.J. told the officer and a neighbor where she had thrown the knife and assisted in the ensuing search for the knife. She said that she did not fight Defendant because he had been holding the knife to her neck and that she was frightened and believed he was serious in his threat to kill her. B.F.J. stated that she did not want to have sex with Defendant and that she did not flatter Defendant until after he held the knife to her neck. B.F.J. testified that she had considered divorcing Defendant, but when she called to ask about it, she discovered she could not afford the proceedings.

On cross-examination, B.F.J. explained that the hour she said that Defendant had penetrated her was a total time which included several instances, off and on, lasting up to fifteen minutes each, over and over. B.F.J. clarified that she had not wrapped the knife in a sheet; rather, she had pulled the sheet over the knife. She stated that the situation made it difficult for her to remember exactly what had happened. B.F.J. testified that she remembered talking Defendant into putting the knife down, but she did not clearly remember whether she covered it with a towel or the sheet. While trying to remember more clearly, B.F.J. became upset and started | flcrying on the witness stand.

B.F.J. spontaneously stated that Defendant had tormented her. She related that she did not attempt to escape again after Defendant had her back inside her house because Defendant was near the door. B.F.J. reported that, although Defendant had previously used lubricant when they engaged in anal sex, he did not use any on that occasion.

When the defense asked B.F.J. about Defendant’s visits and his giving her money, B.F.J. said that she would invite Defendant to her home, that he was there frequently, and that she would take any money he offered her to pay bills. B.F.J. did not recall going to the police station to give a statement, but she did recall speaking with an officer at the hospital. B.F.J. testified that, since his arrest, she had neither called nor visited Defendant. She also denied asking anyone about dropping the charges against Defendant.

The seventh witness to testify for the prosecution was Tina Roberie (Nurse Ro-berie), who was a registered nurse in the emergency room of Savoy Medical Center in Evangeline Parish. Nurse Roberie was working on the morning of August 19, 2007, when B.F.J. was brought in on a complaint that she had been raped by her husband from whom she had been separated. Nurse Roberie testified that B.F.J. told her that Defendant had broken into B.F.J.’s house and made her engage in both vaginal and anal sex with him. B.F.J. also informed Nurse Roberie that Defendant had been armed with a knife at the time and that she was scared, very upset, and crying.

Nurse Roberie said that she assisted Dr. Glen Bennett in performing a physical examination of B.F.J. Nurse Roberie stated there was no evidence of physical | iptrauma; however, feces were present around the anal area, and B.F.J. complained of pain in that area. Nurse Rober-ie assisted in both preparing the rape kit and in acting as a witness to the use of the rape kit. As part of the examination, Nurse Roberie collected and bagged B.F.J.’s nightgown. On cross-examination, Nurse Roberie clarified that she had seen neither bruising nor tearing during the examination.

Tren Landry, a forensic DNA analyst with the Acadiana Crime Lab, was the last witness to testify for the State during its case-in-chief. The trial court accepted Ms. Landry as an expert in forensic DNA analysis without objection by the defense. Ms. Landry examined the nightgown. It tested positive for blood, and there appeared to be feces present, but no seminal fluid. In order to positively identify the substance as feces, she stated that they would have needed to send the evidence to another location. Since the DNA analysis was completed only a week before trial, there was not enough time to have the garment tested to positively identify the substance as feces.

Ms. Landry also examined the bed sheets and stated that they, too, appeared to be marked with feces. As part of the rape kit, Ms. Landry examined vaginal, rectal, and oral swabs retrieved from B.F.J. Blood was present on both the oral and rectal swabs. The vaginal swabs were negative for blood and seminal fluid, but the vaginal slides were positive for spermatozoa. Ms. Landry analyzed the DNA and found that she could not exclude Defendant as the donor. She testified that the tests excluded 99.92 percent of the African-American population from the DNA profile. According to Ms. Landry, one out of 1,300 African-Americans could possibly have been a contributor of the DNA, and one out of 2,200 Caucasians could have possibly been a contributor of the DNA.

Landry found two DNA contributors to the samples found in the fingernail scrapings submitted with the rape kit. The major contributor was B.F.J.; however, there was insufficient information to draw any conclusions about the second contributor. Ms. Landry stated that, even with additional samples, she would not have had the time to complete the tests prior to trial.

L.R.J., Defendant’s niece, was the first defense witness who testified at trial. L.R.J. stated that she had gone to the police station on the morning of the incident to pick up Defendant’s personal items. L.R.J. said that she was waiting in the lobby when B.F.J. entered. L.R.J. testified that B.F.J. asked the officer on duty whether Defendant had any money in his wallet and said that she would do anything to help Defendant.

Defendant took the witness stand and testified that he was fifty-four years old, with an eighth grade education, and that he went to classes to learn how to operate heavy equipment. He confirmed that he had married B.F.J. in 2002 and that they had separated several months prior to the incident in 2007.

Defendant said he was a frequent visitor at B.F.J.’s house after their separation and that, although he sometimes showed up uninvited, he also went there upon B.F.J.’s invitation. He stated that he would bring B.F.J. food, that he would fix her car, and that he would occasionally mow her grass. Defendant explained that, during these visits, he and B.F.J. would sit and talk. Defendant maintained that they continued to engage in consensual sexual intercourse during their separation.

Defendant then described the events of August 19, 2007. Defendant stated that he arrived around nine o’clock pursuant to an invitation by B.F.J. During his visit, they sat, talked, watched a movie, ate popcorn, hugged, and kissed. Defendant h¿¡broached the subject of getting divorced if they were not going to reconcile because he was tired of giving her money. Defendant related that, since their separation, he had given B.F.J. $100.00 every Thursday and could no longer afford to give her the money.

Defendant asserted that he and B.F.J. retired to her bedroom after the movie ended where they made love. He recalled that they engaged in both anal and vaginal sex. Defendant testified that B.F.J.’s statements at the time made him believe the intercourse was consensual, and he denied holding a knife to her throat, threatening her harm, or telling her that he would kill her. He did not remember saying anything that would lead B.F.J. to believe that he wanted to kill or otherwise harm her. Defendant explained that the intercourse that evening was the same as always.

Defendant remembered having a chest pain and complaining to B.F.J. about it. He said that B.F.J. went to the bathroom to get a towel to clean themselves so he could leave, but she never returned. Defendant asserted that, after getting up and getting something to clean himself, he noticed the front door was open. After waiting for two or three minutes, Defendant, still naked, walked outside and saw B.F.J. in the neighbor’s yard. He walked over to get her and brought her back inside her house.

Defendant reported that they talked for a short while when he saw police lights shining through the window. He asked B.F.J. why she called the cops, but she would not answer. She just told him that it would be all right. When the police knocked on the door, B.F.J. told him to stay in the back, that it would be all right, and that she would handle the situation. Defendant said the last thing B.F.J. told him was, “Don’t worry about it.” B.F.J. answered the door. Defendant remembered conversing with B.F.J. that evening and denied arguing with her. He maintained the sexual | ^intercourse had been consensual.

On cross-examination, Defendant admitted that the knife introduced into evidence was his, but he denied having any sort of knife with him that morning. Defendant declared that he had left the knife with B.F.J. to keep in her toolbox and use as a household tool. Defendant denied grabbing B.F.J. when he went to get her from the neighbor’s yard. He reported that, at all times when B.F.J. was around him, she was perfectly calm and never appeared upset. Defendant said that B.F.J. left him because of his drinking and crack cocaine use.

Defendant contended that B.F.J. had him arrested because he refused to give her any more money. When the prosecutor pointed out that such a motivation would be foiled by Defendant being in jail continuously since his arrest, Defendant claimed that B.F.J. may have been more motivated by jealousy. Defendant asserted that the last thing B.F.J. told him was if “she couldn’t have me[,] nobody else would.” Defendant later amended his statement by stating that she had told him that when she left him in April 2007. Defendant also said that, with B.F.J., it was her way or no way at all and that she was a good actor when she wanted things to go her way.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is a correction needed regarding the sentence.

The trial court correctly denied Defendant eligibility for diminution of sentence but cited the wrong legal authority in doing so. At sentencing, the trial court stated that it was denying Defendant eligibility for diminution of sentence in accordance with La.R.S. 15:571.3(C). The supreme court has stated that a trial judge lacks 114authority under La.R.S. 15:571.3(0 to deny a defendant eligibility for diminution of sentence because that statute is directed exclusively to the Department of Corrections. State v. Narcisse, 97-3161 (La.6/26/98), 714 So.2d 698. Thus, the trial court in the present case lacked authority to deny Defendant diminution of sentence under the statute cited.

However, since Defendant was convicted of forcible rape, a sex offense which is designated as a crime of violence, the trial court may deny Defendant diminution eligibility, but only under La.Code Crim.P. art. 890.1(B). When imposing sentence upon Defendant in this case, the trial court stated the following:

Specifically, the [c]ourt considered the extremely violent nature of this crime, the physical and psychological suffering that resulted, and the force involved. The [cjourt is very concerned that, during a suspended sentence, additional violence might result and that a lessor [sic] sentence would deprecate the seriousness of the [DJefendant’s crime.

Then the trial court sentenced Defendant as follows:

The [c]ourt therefore imposes a sentence of [twenty-five] years at hard labor[,] with the first two years of said sentence to be without benefit of probation, parole, or suspension of sentence. Pursuant to [La.R.S.] 15:571.3[ (C) ], the [c]ourt finds and orders that diminution of the [Defendant’s sentence shall not be allowed. The [Defendant’s sentence has not been enhanced pursuant to any article or statute.

Although the trial court did not specifically state that the offense was a crime of violence, its reasons for sentence, as set forth above, clearly expressed its opinion that the offense was a crime of violence, and forcible rape is listed as a crime of 1 ^violence under La.R.S. 14:42.2(B)(13). Hence, we find that the trial court exercised its discretion in denying Defendant diminution of sentence in accordance with La.Code Crim.P. art. 890.1(B).

Therefore, we amend Defendant’s sentence to reflect that diminution of sentence is denied pursuant to La.Code Crim.P. art. 890.1 rather than La.R.S. 15:571.3. See State v. G.M.W., Jr., 05-391 (La.App. 3 Cir. 11/2/05), 916 So.2d 460.

ASSIGNMENT OF ERROR NO. 1

Defendant argues, “The evidence presented at trial, when viewed [in] a light most favorable to the prosecution, was insufficient to sustain the conviction.” He asserts that, during his separation from B.F.J., they continued to see each other on a regular basis and maintained an ongoing sexual relationship. Defendant urges that, even though he was not invited to the victim’s home on the evening in question, the sex was consensual. Defendant alleges that the victim made the rape accusation in retaliation for his comment that he was tired of giving her money. He claims that the victim’s testimony is “unreliable, untrustworthy, and incredible” in addition to being contradicted by the physical evidence. Defendant contends that the jury also had problems with the victim’s credibility as it returned the responsive verdict of forcible rape instead of finding him guilty as charged.

The State responds that the evidence is sufficient to prove forcible rape beyond a reasonable doubt and theorizes that the parties’ prior consensual relationship was the reason why the jury returned a forcible rape conviction instead of an aggravated [1(irape verdict.

The supreme court has discussed the standard for reviewing sufficiency of the evidence claims:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86.

Louisiana courts have previously discussed the extent to which a reviewing court may question credibility determinations made by the fact finder. “It is not the function of an appellate court to assess credibility.... ” Id. at 1286. “The actual trier of fact’s rational credibility calls ... are preserved through the requirement that upon judicial review all of the evidence is to be considered as if by a rational fact finder in the light most favorable to the prosecution....” Mussall, 523 So.2d at 1311 (citing Jackson, 443 U.S. 307, 99 S.Ct. 2781). “[T]he actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” Id. at 1310 (citing Jackson, 443 U.S. 307, 99 S.Ct. 2781). “In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction or convictions.” State v. Stec, 99-638, pp. 4-5 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787.

117When viewing the evidence in the light most favorable to the prosecution and when considering the circumstances and B.F.J.’s hysterical state at the time she gave her initial statement, B.F.J.’s trial testimony was not so inconsistent with her initial statement to such an extent that it would render the jury’s determination that she was credible an irrational determination. The Marcantels, Lieutenant Go-deaux, and Nurse Roberie all testified that B.F.J. was extremely distraught. Defendant’s own self-serving testimony was the only evidence introduced at trial that would contradict a finding that B.F.J. was hysterical.

Moreover, B.F.J. admitted to regularly engaging in the same type of intercourse she reported having occurred during the rape, and she admitted that she did not resist Defendant once he pressed the knife to her neck. Instead, she stated that she chose to plead with Defendant, to humor him, and to flatter him; hence, there is no inconsistency in the absence of cuts and bruises. Also, B.F.J. testified that Defendant pressed the knife against her neck, back to front, so she would not have been able to tell whether the sharpened edge of the knife was pressing against her skin. Additionally, Nurse Roberie stated that B.F.J. reported pain to her rectal area at the time of her exam and that there was blood present on the rectal swab, which would support B.FJ.’s statement that Defendant penetrated her anus without using a lubricant.

Thus, when the evidence is viewed in the light most favorable to the prosecution, B.FJ.’s testimony is not so internally inconsistent or in conflict with her prior statement, the trial testimony of the other witnesses, or the physical evidence, |1Rsuch that it would not support a finding by this court that the jury’s credibility determination was irrational.

The Louisiana Legislature has set forth the following applicable definition for forcible rape:

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:
(1) 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.

La.R.S. 14:42.1. “The testimony of a sexual assault victim alone is sufficient to convict the defendant. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant.” State v. Richard, 39,705, pp. 4-5 (La.App. 2 Cir. 5/11/05), 902 So.2d 1271, 1274, writ denied, 05-1713 (La.2/10/06), 924 So.2d 161 (citations omitted).

Because Defendant admitted to engaging in both vaginal and anal sexual intercourse with B.F.J. during the morning in question, the remaining issues before this court are the consensual nature of the sex and whether the victim was prevented from resisting by force or threats of physical violence under circumstances where she reasonably believed resistance would not prevent the rape. The victim’s testimony in the instant case was that she did not want to have sex, but that she engaged in the act, without resisting, because Defendant threatened her life and held her at knife point.

In State v. Cheeks, 34,772 (La.App. 2 Cir. 6/20/01), 792 So.2d 789, the second circuit found sufficient evidence to support the defendant’s forcible rape conviction. | HiThe defendant and the victim had an “on again, off again” relationship; however, at the time of the offense, they were in an “off again” phase. Id. at 790. One evening, the defendant went to the victim’s house to help put then- children to bed. Afterward, the victim drove the defendant home because it was raining. When the victim spurned the defendant’s requests to resume their relationship, the defendant struck the victim, threatened to beat her, and pulled her inside his house by her hair. Once inside, the defendant demanded that the victim disrobe and have sex with him. When she refused, the defendant grabbed a hunting knife and repeated his demand. The victim complied, and, sometime during the forced sex, the defendant lost possession of the knife. Feigning a need to use the restroom, the victim attempted to escape, but the defendant struck her again, dragged her back into the bedroom, and forced intercourse again.

In State v. Williams, 00-981 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, writ denied, 01-1377 (La.3/28/02), 812 So.2d 646, the fifth circuit found sufficient evidence to support the defendant’s forcible rape conviction. The victim accompanied the defendant to an isolated area where she became nervous and attempted to leave. The defendant, who was armed with a knife, grabbed the victim, pushed her down on the ground, shoved the knife in her face, threatened to kill her if she screamed, and plunged the knife into the ground next to her head. The defendant then removed the victim’s clothing and raped her. The victim attempted to flee at one point, but the defendant caught her, punched her, and raped her a second time.

In State v. Trosclair, 584 So.2d 270 (La.App. 1 Cir.), writ denied, 585 So.2d 575 (La.1991), the first circuit found sufficient evidence to support the defendant’s 1 .^forcible rape conviction when the victim was raped at knife point even though the defendant challenged the victim’s credibility on appeal. In Trosclair, the appellate circuit explained:

Although the defendant was originally charged with aggravated rape, the jury found him guilty of the responsive offense of forcible rape. Nevertheless, this verdict indicates that the jury accepted the victim’s testimony that she was forcibly raped at knifepoint, which was corroborated by the testimony of her son, and rejected the defendant’s testimony that the act of sexual intercourse was consensual. On appeal, this [cjourt will not assess the credibility of ■witnesses or reweigh the evidence to overturn a factfinder’s determination of guilt.
After a careful review of the record, we believe that a rational trier of fact, viewing all of the evidence as favorably to the prosecution as any rational fact-finder can, could have concluded that the State proved beyond a reasonable doubt that the defendant was guilty of forcible rape.

Id. at 282 (citations omitted).

The evidence before this court in the instant case shows that Defendant threatened B.F.J.’s life while holding a knife and stated that he wanted sex before killing her. Defendant held the knife to B.F.J.’s neck while he removed her underwear, and he continued to hold the knife to her neck while he engaged in sexual intercourse with her. The evidence also shows that B.F.J. did not want to participate in the sexual activity and submitted thereto only because Defendant was holding a knife to her neck. This is supported by the evidence which indicates that B.F.J. escaped as soon as feasible, i.e., once both she and the knife were out of Defendant’s physical control. Moreover, the record shows that, once Defendant regained physical control over B.F.J., he was able to pull her across two yards, two drainage ditches, as well as a street, and maneuver her back inside her house fairly quickly. Thus, when viewed in a light most favorable to the prosecution, the evidence shows beyond a reasonable doubt that Defendant engaged in both anal and vaginal intercourse with |21B.F.J. without her consent and that he prevented her from resisting by threats of physical violence wherein B.F.J. reasonably believed that the resistance would not prevent the rape. See La.R.S. 14:42.1(A)(1).

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends, “The trial court erred in imposing an excessive sentence.” He urges that the trial court failed to adequately follow the guidelines set forth in La.Code Crim.P. art. 894.1. Defendant claims that the trial court should have considered certain mitigating factors when sentencing him: (1) Defendant is fifty-four years old; (2) he has an eighth grade education; (3) he supported his wife financially during their separation; (4) there is no evidence that Defendant had any prior brushes with the law; and (5) Defendant maintained his innocence at all times. Based on the listed mitigating factors, as well as an allegation that Defendant is eligible for treatment programs addressing anger management and substance abuse, Defendant requests that this court find the imposed sentence to be excessive as being grossly out of proportion to the severity of the crime and a purposeless infliction of pain and suffering. Defendant further requests that this court vacate the imposed sentence and remand the matter for resentencing.

The prosecution responds, stating that the twenty-five-year sentence is less than two-thirds of the maximum possible sentence. The State further contends that the trial court adequately considered the La.Code Crim.P. art. 894.1 factors and that the record contains an adequate factual basis for the sentence.

“Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty-years. At least two years of the sentence | ¿¿imposed shall be without benefit of probation, parole, or suspension of sentence.” La.R.S. 14:42.1(B). Thus, Defendant’s twenty-five-year hard labor sentence falls within the statutory sentencing range.

This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted). “[Tjhe trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[; however,] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183 (citing State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272), the fifth circuit held that a reviewing court should consider three factors in reviewing sentences imposed by the trial court: “1. the nature of the crime, 2. the nature and background of the offender, and 3. the sentence imposed for similar crimes by the same court and other courts.”

| ¿¿In the instant case, the trial court issued written reasons for the penalty it imposed:

SENTENCING OF [H.L.J.]
The court is called upon to sentence the [Defendant, [H.L.J.], who was convicted by a jury of his peers of forcible rape. In arriving at a sentence, the court carefully considered the pre-sen-tence investigation report and all of the sentencing guidelines of [La.Code Crim.P. art.] 894.1. Specifically, the coui’t considered the extremely violent nature of this crime, the physical and psychological suffering that resulted, and the force involved. The court is very concerned that, during a suspended sentence, additional violence might result and that a lesser sentence would deprecate the seriousness of the [Defendant’s crime. It is the opinion of the court that the [D]efendant is in need of correctional treatment and a custodial environment that can best be provided by his commitment to an institution.
The court therefore] imposes a sentence of [twenty-five] years at hard labor, with the first two years of said sentence to be without benefit of probation, parole, or suspension of sentence. Pursuant to [La.R.S.] 15:571.3( [C]), the court finds and orders that diminution of [Djefendant’s sentence shall not be allowed. Defendant’s sentence has not been enhanced pursuant to any article or statute. Defendant is given credit for time served with regard to the crime for which he is sentenced today. Upon release or parole, [Defendant must comply with [La.R.S.] 15:542 with regard to registration of sex offenders.
The court informs you that by virtue of [La.Code Crim.P. art.] 930.8 there is a two year prescriptive period for you to apply for post conviction relief which begins to run from the time of finality of judgment of conviction and sentence.

These are the same reasons that the trial court gave at the October 2, 2008 hearing.

Immediately after sentencing, the defense made an oral motion to reconsider the penalty imposed:

By Mrs. Tate: Your Honor, I’d like to make an oral Motion to Reconsider the Sentence for it being excessive given [Defendant’s] age, he’s [fifty-five] years old, in another [twenty-five] years he’ll be almost [eighty] years old. He and the victim ... were married for eight years and there is a history of, she does have a history of bringing some charges against the [Defendant and then dropping the charges.

In response, the trial court denied the motion and gave oral reasons for its Indecision:

By the Court: And I don’t know where [sic] that means he didn’t do them, it means she just didn’t proceed with the charges. It indicates that there [have] been problems all along and that culminated in a situation where she could have died. There was a knife involved in this and she was brutally attacked and ... I respectfully decline your (inaudible).

In State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, this court affirmed a thirty-five-year sentence imposed on a forcible rape conviction. The defendant asserted that his sentence was excessive as he was a first-time offender. The defendant had been charged with aggravated rape for raping his eleven-year-old stepdaughter and using a knife in the commission of the crime, but he had pled guilty to forcible rape. This court found the defendant’s argument to be without merit and noted that the facts would have fully supported an aggravated rape conviction which carries a mandatory penalty of life imprisonment.

In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03), 862 So.2d 440, the second circuit affirmed the maximum forty-year sentence for forcible rape. The fifty-two-year-old “victim awoke to find a man beside her on her bed telling her not to scream and to do whatever he said so she would not be hurt.” Id. at 442. The victim testified that during the rape, she felt either a knife or some broken glass pressed against her. The sentencing court considered the defendant’s prior criminal record, his status as a first felony offender and Navy deserter, the facts of the crime, his level of education, and his drug addiction in sentencing the defendant.

In Williams, 786 So.2d 805, the fifth circuit upheld a maximum sentence of forty years for a forcible rape conviction resulting from the defendant raping the victim twice. When the victim tried to escape, the defendant punched her in the face. The defendant also used a knife and death threats during the offense. The trial court |25sentenced the defendant in accordance with similar cases, but without the benefit of a pre-sentence investigation report.

In State v. Reaves, 569 So.2d 650 (La.App. 2 Cir.1990), writ denied, 576 So.2d 25 (La.1991), the second circuit affirmed a twenty-five-year sentence for forcible rape. The defendant, who was admitted into the victim’s home on the pretext of needing to make a call, followed the victim into her bedroom where he held up a butcher knife and threatened to kill her if she shouted. The victim struggled, and the defendant cut her hand. The defendant, using the knife, ripped off the victim’s clothing and raped her. When the victim called to report the incident, she was very upset, crying, and moaning. In sentencing the defendant, the trial court took into account the facts of the case, the defendant’s lack of remorse, the fact that an aggravated rape had actually occurred, the psychological trauma to the victim, and the victim’s fear of the defendant.

The record in the instant case shows that the trial court considered the following factors before imposing Defendant’s sentence: the aggravating and mitigating factors set forth in La.Code Crim.P. art. 894.1; the facts of the case; the extremely violent and brutal nature of this offense; the physical and psychological suffering resulting from the crime; the force involved; the concerns both that, during a suspended sentence, additional violence might result and that a lesser sentence would deprecate the seriousness of Defendant’s crime; the history of similar charges being filed and dropped against Defendant by the victim; and, the use of a dangerous weapon during the offense. Considering the nature of the offense, the evidence in the record, the background of Defendant, and the penalties imposed in similar cases, we do not find Defendant’s sentence excessive.

12BAccordingly, this assignment of error is without merit.

DISPOSITION

Defendant’s conviction and sentence are affirmed. Defendant’s sentence is amended to reflect that diminution of sentence is denied pursuant to La.Code Crim.P. art. 890.1(B), and the trial court is instructed to note the amendment in the court minutes.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.

      . Initials are being used for both Defendant and the victim in order to protect the confidentiality of the victim in accordance with La.R.S. 46:1844(W).

      . Louisiana Code of Criminal Procedure Article 890.1(B) provides:
      Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).

      . In its closing argument, the defense asserted that the State failed to meet its burden of proving that this Defendant had been armed with the knife because there was no fingerprint evidence proving that he had held the knife. Defense counsel also claimed that the lack of bruising, cuts, or other injuries to B.F.J. meant that the intercourse had been consensual and, further, that Defendant had not been armed with the knife during sex.

      . Although not part of the evidence, the prosecutor demonstrated during closing arguments that the knife blade was not sharp enough to cut. However, the knife was published to the jury, and those jurors who so desired were allowed to handle the weapon.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Michael VIDRINE v. TECHE ELECTRIC SUPPLY, L.L.C.
    No. 08-1287.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Chuck R. West, West & Vidrine, Ville Platte, LA, for Plaintiff/Appellee, Michael Vidrine.
    W. Michael Stemmans, M. Todd Alley, Michael J. Taffaro, Jennifer Frederickson, Stemmans & Alley, Baton Rouge, LA, for Defendant/Appellant, Teche Electric Supply, L.L.C.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

_JjiThis litigation arises from a work-related injury sustained by the plaintiff, Michael Vidrine, while in the employ of the defendant, Teche Electric Supply, L.L.C. (Teche Electric). Teche Electric appeals the workers’ compensation judge’s (WCJ) denial of its La.R.S. 23:1208 fraud defense; its finding that Mr. Vidrine proved both continuing disability and the necessity of surgery; and the award of penalties and attorney fees based on Teche Electric’s termination of weekly indemnity benefits. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

Mr. Vidrine was a ten-year employee who performed sales and warehouse duties at Teche Electric’s Ville Platte business location. On March 13, 2006, he injured his lower back while moving a spool of wire weighing between 300 and 400 pounds. Because his supervisor, Stanley Darbonne, was not present at the time of the accident, the only person he told about the accident and injury was his co-worker, Damon Thomas. The next morning, Mr. Vidrine telephoned Mr. Darbonne and said that he had sustained an injury at work, that he was still hurting, and that he was going to remain at home. The following day, he reported the accident to Lisa Hebert, Teche Electric’s Human Resource contact, who authorized him to seek treatment.

Mr. Vidrine initially sought medical treatment on March 15, 2006, from his family physician, Dr. Charles Fontenot, a Ville Platte, Louisiana, general practitioner. Dr. Fontenot’s initial examination revealed spasms and pain in Mr. Vidrine’s lower back and down to his left foot. His initial diagnosis was acute lumbar strain, and he prescribed medication. On a follow-up visit on March 22, 2006, Mr. Vid-rine had not improved, and Dr. Fontenot recommended physical therapy. Despite this [.¿conservative treatment, Mr. Vidrine did not improve. Dr. Fontenot then referred his patient to Dr. George Williams, an Opelousas, Louisiana, orthopedic surgeon.

In examining Mr. Vidrine, Dr. Williams found spinal stenosis at L3-4 and L4-5 and recommended surgery, which would consist of a decompression at L3-4 and L4-5, together with a spinal fusion. Teche Electric refused authorization for this procedure. Thereafter, Mr. Vidrine was examined by two Lafayette, Louisiana orthopedic surgeons; Dr. Gregory Gidman and Dr. W. Stan Foster. Dr. Gidman’s examination was at Teche Electric’s request, and Dr. Foster’s was at the request of the WCJ. Both doctors disagreed with Dr. Williams’ recommendation of surgery, finding that Mr. Vidrine had merely suffered a strained back and was at maximum medical improvement.

On June 7, 2007, Mr. Vidrine filed a disputed claim for compensation seeking penalties and attorney fees based on Teche Electric’s refusal to authorize the surgery recommended by Dr. Williams. The same day, Teche Electric terminated his weekly indemnity benefits. Supplemental pleadings raised the issue of forfeiture under La.R.S. 23:1208, as well as the termination of indemnity benefits.

After trial, the WCJ rendered judgment rejecting Teche Electric’s fraud defense under La.R.S. 23:1208; finding Mr. Vid-rine temporarily, totally disabled; reinstating benefits retroactive to June 7, 2007; finding that Teche Electric’s termination of his indemnity benefits was arbitrary and capricious; awarding Mr. Vidrine $7,500.00 in attorney fees and $2,000.00 in penalties; and finding that the surgery recommended by Dr. Williams was reasonable and necessary. Teche Electric has suspensively appealed from this judgment, raising four assignments of error:

(1) The WCJ erred in finding that its 1208 fraud defense was without merit.
13(2) The WCJ erred in finding that the surgery recommended by Dr. Williams was reasonable and necessary.
(3) The WCJ erred in finding that claimant met the burden of proof with regard to establishing disability as a result of the alleged accident.
(4) The WCJ erred in finding that the employer acted arbitrarily or capriciously in terminating claimant’s benefits and that the denial of the claim was unreasonably controverted.

OPINION

In workers’ compensation matters, factual findings are subject to the manifest error standard of review. Stoute v. Petroleum Ctr., 07-1533 (La.App. 3 Cir. 4/2/08), 980 So.2d 818. In instances where there is a conflict in the evidence, reasonable inferences of fact will not be disturbed on review. LeJeune v. Trend Servs. Inc., 96-550 (La.App. 3 Cir. 6/4/97), 699 So.2d 95. If the WCJ’s factual finding emanates from a finding regarding a witness’ credibility, then that finding is entitled to great deference upon appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989). Furthermore, absent manifest error, the WCJ’s decision to award penalties and attorney fees will not be reversed on appeal.

La.R.S. 23:1208 Fraud Defense

Louisiana Revised Statutes 23:1208(A) provides in pertinent part that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” In order to prove fraud as defined by this provision, an employer must prove: (1) a false statement or misrepresentation by the employee, (2) willfully made, and (3) that it was made for the purpose of obtaining workers’ compensation benefits. Campbell v. City of Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.4/25/08),4 978 So.2d 366. -Upon proof of these three elements, the penalty to the employee is forfeiture of the right to recover any workers’ compensation benefits. La.R.S. 23:1208(E).

Teche Electric bases its right to seek forfeiture of benefits under La.R.S. 23:1208 on Mr. Vidrine’s deposition statements that he was unable to perform certain activities following his work-related accident, surveillance evidence which appeared to contradict his testimony, and Dr. Gidman’s testimony that Mr. Vidrine reported being totally inactive since his injury — that he mostly watched television while sitting in a recliner, did not drive, wash his vehicle, or cut grass, but would occasionally wash dishes.

Mr. Vidrine’s deposition was taken on September 19, 2007, wherein he was asked a general question concerning what he could do before the accident as opposed to what he could do thereafter. In response, he stated that he could no longer do “[his] yard work and the little bit of hunting and fishing that [he] used to do.” He additionally testified that as of the date of the deposition, he could only sit for short periods of time before experiencing pain and that he had only worked in his yard one time since the accident.

In support of its fraud argument, Teche Electric relied on the findings of Nick Arnold and Larry Zerangue, two private investigators it hired to conduct surveillance of Mr. Vidrine. Mr. Arnold did not testify. Instead, the parties stipulated that if called as a witness, he would testify that on May 10, 2007, he observed Mr. Vidrine mowing his yard, hauling and dumping dirt with a wheelbarrow, and then spraying the dirt with water; that during his surveillance, he saw no limitations in Mr. Vidrine’s movements; but that he had to prematurely terminate his surveillance | ^because Mr. Vidrine was alerted to his presence by a child. The short video made by Mr. Arnold shows Mr. Vid-rine using a water hose to spray down his yard and then mowing the grass with a push lawnmower.

Mr. Zerangue testified that he performed surveillance on Mr. Vidrine for six to eight hours per day on March 21, 24, 26, and 27, 2008. Over those four days, he observed Mr. Vidrine digging and picking up plants in his garden, walking around his garden and back and forth to his residence, speaking to his neighbor, and riding or parking a four-wheeler or tractor. In his four-day surveillance, Mr. Zerangue noticed no limitations on Mr. Vidrine’s movements. However, he did acknowledge that thirty minutes was the longest he was able to film without a break because of the activity around the Vidrine home. Additionally, the four-day surveillance produced only approximately one hour of video evidence, which shows Mr. Vidrine using a shovel to loosen dirt in order to pull grass.

Stanley Darbonne also testified concerning his observations of Mr. Vidrine’s activities. According to Mr. Darbonne, he drives past Mr. Vidrine’s home each day while traveling to and from work and, at different times, he has observed Mr. Vid-rine working in his yard. On one occasion, he claimed to have seen Mr. Vidrine standing on a ladder or chair while nailing roofing material on a structure located behind his home. He also claimed to have seen Mr. Vidrine driving his truck and, on one occasion, hauling a boat.

In both his deposition and trial testimony, Mr. Vidrine testified that he could no longer maintain his yard or hunt and fish because of back pain. Specifically, he denied any attempts to weed his garden, plant plants, dig holes, level his yard, or | fidimb a ladder. Other than one time mowing his yard, the most he acknowledged doing was helping his wife by washing dishes from time to time.

According to Mr. Vidrine, the one time he did mow his yard, on May 10, 2007, his efforts caused him to go to the Ville Platte Hospital Emergency Room that evening with swelling and spasms in his lower back. He further explained that he attempted to work in his yard on this particular day because of the encouragement of his employer’s claims adjuster. Before his accident, he had been able to mow his yard in slightly over one-half an hour, but this particular attempt took all day to complete because of his need to take frequent rest stops.

The emergency room records of the Ville Platte Hospital support Mr. Vidrine’s testimony. Those records reflect that at 7:26 p.m. on May 10, 2007, Mr. Vidrine presented himself to the emergency room complaining of back pain caused by weeding his lawn. Mr. Vidrine stated that this was his last attempt to mow his yard.

While admitting to cutting grass on May 10, 2007, Mr. Vidrine denied using a wheelbarrow to haul dirt as alleged by Mr. Arnold. He acknowledged that in March of 2008, he used a shovel to pull grass out along a fence row, but stated that this activity lasted for only twenty to thirty minutes. However, he denied performing any roofing-type work or using a ladder at any time after his work-related accident.

Mr. Vidrine’s wife, Brenda, testified that she was at home on May 10, 2007, when her husband attempted to mow the grass, but denied that her husband used a wheelbarrow to haul dirt. She testified that Mr. Vidrine constantly complained of pain while cutting the grass, limped during the process, and took many breaks. She | ./supported her husband’s testimony that the normally short job took most of the day to complete. She did not recall anyone alerting them to video surveillance and she said that she later took her husband to the emergency room. At the hospital, she said that he told the doctor that his back hurt from cutting the grass. Mrs. Vidrine further testified that she has never seen her husband up on a ladder repairing a roof or performing any labor for more than an hour, but said that she was not present when Mr. Vidrine was videoed by Mr. Zerangue. According to Mrs. Vidrine, these were the only two instances when Mr. Vidrine performed any outside work.

In rejecting Teche Electric’s fraud claim under La.R.S. 23:1208, the WCJ made a specific factual finding that Mr. Vidrine was credible in regard to his testimony on this issue. We find no manifest error in this factual finding and, therefore, find no merit in this assignment of error.

Request for Surgery

An employee is entitled to all necessary medical treatment, including surgery, required in the treatment of a work-related injury. La.R.S. 23:1203(A). If recommended, the employee is entitled to surgery if he proves, by a preponderance of the evidence, that the procedure is reasonable and necessary. Royals v. Town of Richwood, 42,585 (La.App. 2 Cir. 10/24/07), 968 So.2d 833, writ denied, 07-2447 (La.2/15/08), 976 So.2d 183.

The record establishes that throughout Dr. Williams’ treatment, Mr. Vidrine’s chief complaints were low back and left leg pain. Initially, Dr. Williams’ impression was that Mr. Vidrine suffered from back pain and lumbar spinal stenosis at L4-5, narrowing of the spinal canal, with radicu-lopathy. However, after reviewing a May 5, 2006 MRI performed at the request of Dr. Fontenot, he also noted spinal stenosis |sat L3-4. Because physical therapy had exacerbated Mr. Vidrine’s pain, Dr. Williams ordered a lumbar epidural steroid injection which provided only minimal relief. It was at this point that Dr. Williams concluded that only surgery, in the form of a posterior lumbar decompression and fusion at L3-4 and L4-5, would alleviate Mr. Vidrine’s lower back pain. Without surgical intervention, a procedure rejected by Teche Electric, Dr. Williams felt that Mr. Vidrine was totally disabled. He continued to treat Mr. Vidrine with the only thing available to him: pain medication, muscle relaxers, and anti-inflammatory medication.

After examining Mr. Vidrine and reviewing the medical records made available to him, Dr. Gidman categorically disagreed that surgery was necessary. He detected no objective symptoms during his examination and concluded that Mr. Vidrine’s MRI revealed minimal spinal stenosis at L4-5, but otherwise was normal. He found no evidence of neurocompression and no problem at L3-4. Dr. Gidman found Mr. Vidrine positive for four of five Wad-dell signs during the examination. According to Dr. Gidman, Mr. Vidrine complained of pain upon light palpation of the skin and during trunk rotation, pressure in his lower back with axial loading (pressing down on the head), and inconsistent straight leg raises. With regard to the straight leg raise, Dr. Gidman testified that a patient’s symptoms should be similar and that complaints in both the sitting and supine straight leg raise should be within twenty degrees of each other. In the sitting straight leg raise, Mr. Vidrine was negative on the right side and positive at sixty degrees on the left. In the supine straight leg raise, he was positive at forty-five degrees on the right and at ten degrees on the left.

| ¡[Dr. Gidman recommended a CT scan and lumbar myelogram based on Dr. Williams’ spinal stenosis diagnosis and Mr. Vidrine’s continued subjective complaints. The CT scan revealed minor central soft tissue ridging at L4-5, but no substantial spinal or foraminal stenosis and no evidence of nerve root displacement or compromise. It further revealed a normal disc space at L3-4. Based on this test, Dr. Gidman found no evidence of spinal steno-sis.

In disagreeing with Dr. Williams’ surgery recommendation, Dr. Gidman stated that nothing in the medical records or his examination indicated that Mr. Vidrine was suffering from any disease or pathology which required the decompression and fusion. He stated that Dr. Williams’ recommendation for a “life changing” operation was based solely on slight stenosis and Mr. Vidrine’s subjective complaints. In his opinion, Mr. Vidrine was at maximum medical improvement with a maximum of two percent anatomic impairment. He recommended a functional capacity evaluation with validity testing and vocational rehabilitation to return Mr. Vidrine to work within valid restrictions. He opined that Mr. Vidrine would never improve unless he returned to work and that his problems would be compounded tenfold if he underwent this surgery. He recommended that a third opinion be obtained on the need for surgery.

The WCJ heeded Dr. Gidman’s recommendation and caused Mr. Vidrine to be examined on March 22, 2007, by Dr. Foster. According to Dr. Foster, his physical examination of Mr. Vidrine revealed no objective symptoms and his evaluation of the medical records revealed no evidence of central or foraminal stenosis in either the MRI or the CT scan. In the absence of any positive findings, Dr. Foster opined that | ipMr. Vidrine was suffering from degenerative changes in his lumbar spine. In reaching this conclusion, he agreed with Dr. Gidman that Dr. Williams’ surgical recommendation was not warranted. He found Mr. Vidrine to be at maximum medical improvement with no permanent impairment. He also agreed with Dr. Gid-man’s recommendation that a functional capacity evaluation with validity testing should be performed before Mr. Vidrine returned to work.

In concluding that surgery was necessary, the WCJ gave more credence to the qualifications and testimony of Dr. Williams than of the other two physicians. Specifically, the WCJ found Dr. Williams to have better credentials in spine treatment and surgery than Drs. Gidman and Foster and gave his testimony greater consideration because he was Mr. Vidrine’s treating physician.

[I]n general, the observations and opinions of the treating physician are to be accorded greater weight than those of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. “However, the treating physician’s testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses.” Freeman v. Rew, 557 So.2d 748, 751 (La.App. 2nd Cir.1990) (citations omitted), writ denied, 563 So.2d 1154 (La.6/01/90). Ultimately, “the weight afforded a treating physician’s testimony is largely dependent upon the physician’s qualifications and the facts upon which his opinion is based.” Id.

Freeland v. Bourgeois, 06-932, p. 31 (La.App. 3 Cir. 1/24/07), 950 So.2d 100, 119-20, writ denied, 07-409 (La.4/5/07), 954 So.2d 144.

The WCJ’s determination with regard to the necessity for surgery is entitled to great weight and will not be disturbed on appeal unless clearly wrong or manifestly erroneous. Cajun Welding & Machine Co. v. Deville, 03-548 (La.App. 3 Cir. 11/5/03), 858 So.2d 875. In giving great weight to the WCJ’s findings concerning the individual doctors’ qualifications and the underlying facts supporting Dr. Williams’ opinion, we cannot say that the WCJ was clearly wrong or manifestly 11! erroneous in accepting Dr. Williams’ recommendation that the performance of a posterior lumbar decompression and spinal fusion at both the L3-4 and L4-5 levels was reasonable and necessary.

Dr. Williams’ recommendation is based on Mr. Vidrine’s limp, his complaints of lower back and left leg pain, and the positive straight leg raising test. Although both the MRI and CT scan provided normal results, they did reveal slight spinal stenosis at L4-5. In reaching his conclusion that surgery was necessary, Dr. Williams was aware that early conservative treatment was unsuccessful and declined to recommend physical therapy because it had exacerbated Mr. Vidrine’s pain when prescribed by Dr. Fontenot. While we may have reached a different conclusion, based on the medical evidence before us, we find no merit in this assignment of error.

Disability Status

In order to receive temporary total disability benefits, an employee must prove his physical inability to engage in any employment or self-employment as a result of his work-related injury. La.R.S. 23:1221(l)(c). The burden of proof in this instance is by “clear and convincing evidence, unaided by any presumption of disability.” La.R.S. 23:1221(l)(c).

At the time of trial, Mr. Vidrine had not yet been released to return to work by Dr. Williams, and had not seen a vocational rehabilitation counselor or undergone a functional capacity evaluation. In describing why he did not believe he could return to work, Mr. Vidrine testified that he still had a lump in his back that tended to swell with movement and cause spasms and pain into his left leg.

Nonetheless, Ms. Hebert testified that Teche Electric twice offered Mr. Vidi’ine a light-duty position in May of 2007. According to her, the certified mail letters | i2offering the position were returned unclaimed. The position offered to Mr. Vid-rine involved light desk work and taking telephone orders and carried the same wage scale as he had previously received. Ms. Hebert stated that before making the offer, she consulted with Mr. Darbonne and a vocational rehabilitation counselor. No effort other than sending the allegedly unclaimed letters was made to inform Mr. Vidrine about the light-duty position.

Mr. Vidrine denied that Teche Electric ever offered him a light-duty position, stating that the only certified letter he received from Teche Electric concerned a request from Mr. Darbonne for him to return his office keys. He testified that he voluntarily terminated his employment with Teche Electric in March of 2007, in order to access his 401K retirement plan. Mrs. Vidrine testified that she was not aware of any certified letter offering light-duty employment, and she supported her husband’s testimony that the only certified letter received was that from Mr. Dar-bonne concerning the office keys.

As previously noted, Dr. Williams stated that Mr. Vidrine is totally disabled and that he will remain so until after surgery. Drs. Gidman and Foster both found him to be at maximum medical improvement and recommended that he undergo a functional capacity evaluation with validity testing to assess his work capabilities. In addition, Dr. Gidman felt that Mr. Vidrine should undergo a vocational rehabilitation assessment in order to return to work.

Phil Moory, the special investigator handling the claim for Teche Electric, testified that the vocational rehabilitation assessment recommendation went by the wayside when Teche Electric raised its La.R.S. 23:1208 fraud defense. According |13to Mr. Moory, he recommended termination of Mr. Vidrine’s workers’ compensation benefits on June 7, 2007, for several reasons: (1) the reports of Drs. Gidman and Foster stating that Mr. Vidrine was capable of returning to work, (2) the fact that he was offered a light-duty position by Teche Electric at his previous wage, (3) the fact that he had voluntarily terminated his employment with Teche Electric, and (4) the fact that surveillance revealed Mr. Vidrine performing activities he said he was incapable of doing. However, Mr. Moory acknowledged that his recommendation was based primarily on the surveillance results and not the medical reports. He also acknowledged that because of prior dealings with Dr. Williams wherein he questioned the doctor’s medical opinions, he felt that Dr. Williams’ recommendation was off base.

Based on the evidence presented, we find that it was not unreasonable for the WCJ to find that Mr. Vidrine is still temporarily, totally disabled. Although Drs. Gidman and Foster both found him at maximum medical improvement, both recommended additional testing in order to determine his capabilities prior to returning him to work. Until the functional capacity evaluation and vocational rehabilitation counseling are provided, we find no error in the WCJ’s determination that Mr. Vidrine is entitled to temporary total disability in the amount of $320.02 per week from June 7, 2007.

Additionally, we find no error in the WCJ’s conclusion that Teche Electric acted arbitrarily and capriciously in terminating Mr. Vidrine’s indemnity benefits. Mr. Moory admitted that his decision to terminate these benefits was based heavily on the surveillance video, rather than the medical reports, and because of prior dealings he had Dr. Williams. Accordingly, this judgment is affirmed.

| ^CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ in all respects and assess all costs of this appeal to Teche Electric Supply, L.L.C.

AFFIRMED.

      . The same day as Mr. Arnold's surveillance.

      . The video taken this day contains no evidence of Mr. Vidrine using a wheelbarrow.

      . Dr. Gidman described Waddell signs as "screening maneuvers that indicate evidence of psychological or psychosocial factors affecting subjective complaints.”

      . The lumbar myelogram was not performed because Mr. Vidrine is allergic to iodine.

      . The record contains a copy of the letters, but contains no evidence other than Ms. Hebert's testimony that they were sent certified mail and unclaimed.


text:
    Hazel JONES, On behalf of her minor Grandchildren, Courtland JONES, Kayura Jones, and Hilton Jones, III v. The GEO GROUP, INC., formerly known as Wackenhut Corrections Corporation, Warden Kent Andrews, Warden Michael Estes, Associate Warden Bill Crucher, Captain Walter Garnett, Sergeant Patricia Mapel, and Guard Lashonda Hall.
    No. 08-1276.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Joseph F. Gaar, Jr., Jason M. Welborn, J.P. D’Albor, Lafayette, LA, for Plaintiff/Appellant, Hazel Jones, on behalf of her minor grandchildren, Courtland Jones, Kayura Jones, and Hilton Jones, III.
    Samuel B. Gabb Loftin, Cain, Gabb & LeBlanc, L.L.C., Lake Charles, LA, for Defendants/Appellees, The GEO Group, Inc., Kent Andrews, Mark Estes, Murray Crutcher, Walter Garnett, and Patricia Mapel.
    Joseph R. Pousson, Jr., Plauché, Smith & Neiset, Lake Charles, LA, for Defendant/Appellee, LaShonda Hall.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| tPlaintiff, Hazel Jones, on behalf of her minor grandchildren, Courtland Jones, Kayura Jones, and Hilton Jones, III, appeals the trial court’s judgment sustaining Defendants’ peremptory exception of res judicata, which dismissed Plaintiffs claims with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is a wrongful death action filed on May 12, 2008, by Hazel Jones, the mother of the deceased, Hilton Jones. Ms. Jones, on behalf of Mr. Jones’ three minor children, Courtland Jones, Kayura Jones, and Hilton Jones, III, filed suit pursuant to La.Civ.Code art. 2315.2 against the GEO Group, Inc., formerly known as Wackenhut | ¡^Corrections Corporation (GEO Group), the company that staffs Allen Parish Correctional Center (APCC) in Kinder, Louisiana, as well as employees of GEO Group at the time of Mr. Jones’ death, namely, Warden Kent Andrews, Warden Mark Estes, Associate Warden Murray Crutcher, Captain Walter Garnett, Guard Lashonda Hill, and Sergeant Patricia Mapel (hereinafter collectively referred to as “Defendants”). Plaintiffs petition alleges that Defendants negligently failed to protect Mr. Jones, an inmate at APCC, from another inmate at APCC, Shavis Toby. Mr. Toby allegedly stabbed Mr. Jones to death at APCC on January 19, 2005. Plaintiffs petition seeks damages for Defendants’ alleged “deliberate indifference to the health and well[-]being of [Mr.] Jones[J”

On May 27, 2008, Defendants filed a Peremptory Exception of Res Judicata and Declinatory Exception of Lack of Subject Matter Jurisdiction. Defendants alleged that Plaintiff initially filed a federal complaint on January 13, 2006, against Defendants in the United States District Court, Western District of Louisiana, for alleged constitutional violations arising under U.S. Const, amend. VIII and 42 U.S.C. § 1983. According to Defendants, the district court dismissed Plaintiffs federal | scomplaint by judgment dated March 20, 2008, pursuant to a motion for summary judgment filed by Defendants. In the case at bar, Defendants’ peremptory exception asserted that Plaintiffs claims must be dismissed based upon the legal doctrine of res judicata.

The trial court heard and sustained Defendants’ exception of res judicata on August 6, 2008. At the conclusion of the hearing on Defendants’ peremptory exception of res judicata, the trial court declared, in pertinent part:

I don’t think anyone disagrees that the same [P]laintiff[ ] filed suit in federal court against the same [Defendants and under the same facts and transactions. [Plaintiff] used the 1983 and Eighth Amendment claim for the same damages [Plaintiff is] asking for in the state’s [sic] suit. [Plaintiff] didn’t allege the state claims of negligence under [La.Civ.Code art.] 2315 or 2315.1[sic]. The federal suit was dismissed with prejudice in a motion for summary judgment that was filed by the [Djefendants.... [F]irst of all[,] it is clear that both ... suits arise out of the same transaction!,] there is no question as to that. It is also clear from a reading of the reasons in Judge Trimble’s case that the judgment was based on the merits of the case. Secondly!,] the court disagreed with the [P]laintiff s assertion that the federal court did not have pendent jurisdiction over the state claim in this matter. Pendent jurisdiction exists when there is a valid federal claim and the relationship between the federal claim and the state claim is such that they derive from a common nucleus of operative facts so that if considered without regard to their federal or state character [P]laintiff would have ordinarily be[en] expected to try them all in one judicial proceeding. And both of them arise out of the same set of facts. So, it is clear that there is pendent jurisdiction. So, lastly[,] we have to look at whether or not the federal court would have declined to exercise that pendent jurisdiction over the admitted state claims. And it is true that it is a doctrine of discretion, and that the federal courts have great latitude in deciding whether or not to exercise it. And ... they look at judicial economy, convenience, fairness[,] and comity. The case at hand, I don’t think it contains exceptional facts. I don’t see it that way. And just like in [Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994)], the federal court is the only for[um] ... where all of the claims could have been resolved. It is not enough, just like [Reeder] said, that the federal court had the power to decline or that it possibly or probably would have declined. It must be clearly shown. And I don’t think that is the case here. I don’t think it is clearly shown that they would have declined. So, I’m going to grant the [ejxception of [res judicata], and this matter is dismissed.

14A judgment to this effect was signed by the trial court on August 18, 2008. It is from this judgment that Plaintiff appeals.

ASSIGNMENT OF ERROR

In her sole assignment of error, Plaintiff argues that “[t]he trial court erred in granting the exception of res judicata, in favor of [D]efendants/[A]ppellees, and determining that the Honorable James Trim-ble, and the U.S. District Court for the Western District, could have exercised pendent jurisdiction, over the [s]tate law claims, filed in the [s]tate [c]ourt action.”

LAW AND DISCUSSION

The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties. State ex rel. Sabine River Auth. v. Meyer & Assocs. Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585. Such is the case in the instant matter.

Plaintiff claims that the trial court erred in holding that the present action was barred by the doctrine of res judicata. In brief, Plaintiff asserts:

After the dismissal of the [fjederal court case, Ms. Jones filed a[s]tate [c]ourt action, asserting the wrongful death and negligence claims against the same [Defendants. These wrongful death claims were the stand[-]alone claims, belonging to the children of the decedent, Hilton Jones, and were not symbiotic claims for violations of Mr. Jones’ civil rights. In other words, these were stand[-]alone suits, based upon the rights created by Louisiana law, for the benefits of the direct heirs and descendants of the deceased. By contrast, the [fjederal question jurisdiction over the [42 U.S.C. § 1983 and U.S. Const, amend. VIII] claims[ ] were symbiotic rights of the children, based upon those rights owed to the deceased himself. This distinction would become critical | sin an analysis of the application of the bodies of law, controlling the filing of [sjtate [ejourt petitions.

Defendants contend that the trial court correctly relied upon Reeder, 623 So.2d 1268, when it sustained their peremptory exception of res judicata and dismissed Plaintiffs state court claims. We agree.

The analysis for a peremptory exception of res judicata is well-settled:

The courts of this state have repeatedly confirmed that federal law is applicable to consideration of whether a federal court judgment has res judicata effect. See Terrebonne Fuel & Lube, Inc. v. Placid Ref. Co., 95-0654 (La.1/16/96), 666 So.2d 624; Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993); Bobby and Ray Williams P’ship, L.L.P. v. Shreveport Louisiana Hayride Co., L.L.C., 38,866 (La.App. 2 Cir. 9/22/04), 882 So.2d 676, writ denied, 04-2636 (La.12/17/04), 888 So.2d 875; McCollough v. Dauzat, 98-1293 (La.App. 3 Cir. 3/3/99), 736 So.2d 914. As explained in Terrebonne Fuel & Lube, 666 So.2d at 633, federal res judicata law indicates that a judgment bars a subsequent suit if the following requirements are satisfied: “1) both cases involve the same parties; 2) the prior judgment was rendered by a court of competent jurisdiction; 3) the prior decision was a final judgment on the merits; and 4) the same cause of action is at issue in both cases.” There are, however, exceptions to the law of res judicata. Id. Namely, the law of res judicata may be inapplicable if there is an express reservation of a claim that the defendant acquiesces in or if the court in the first action expressly reserves the plaintiffs right to pursue a subsequent action. Id.

Green v. Iberia Parish Sch. Bd., 06-1060, p. 3 (La.App. 3 Cir. 12/20/06), 945 So.2d 940, 943, writ denied, 07-111 (La.3/16/07), 952 So.2d 697.

We have reviewed Plaintiffs petition in this case in light of the filings contained in the record related to Plaintiffs federal court suit against Defendants. We find that all of the elements necessary for the application of res judicata are, in fact, present. Plaintiffs federal and state suits involved the same parties. The prior judgment was a final judgment and was rendered by a court of competent jurisdiction. Finally, the death of Mr. Jones is at issue in both cases. Therefore, we find no manifest error in the trial court’s determination that the federal court’s judgment bars | (¿Plaintiffs present state court case by virtue of the legal doctrine of res judi-cata.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court sustaining Defendants’ peremptory exception of res judi-cata. All costs of these proceedings are assessed against Plaintiff/Appellant, Hazel Jones, on behalf of her minor grandchildren, Courtland Jones, Kayura Jones, and Hilton Jones, III.

AFFIRMED.

      . Louisiana Civil Code Article 2315.2 provides:
      A.If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
      (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
      (3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
      (4) The surviving grandfathers arid grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
      B. The right of action granted by this Article prescribes one year from the death of the deceased.
      C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
      D. As used in this Article, the words “child”, “brother”, “sister”, “father”, "mother”, "grandfather”, and "grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.
      E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

      . According to Defendants' Peremptory Exception of Res Judicata and Declinatory Exception of Lack of Subject Matter Jurisdiction, Plaintiff's petition incorrectly referred to Warden Mark Estes as "Warden Michael Estes.”

      . According to Defendants’ Peremptory Exception of Res Judicata and Declinatory Exception of Lack of Subject Matter Jurisdiction, Plaintiff's petition incorrectly referred to Associate Warden Murray Crutcher as ‘‘Associate Warden Bill Crucher.”

      . United States Constitution Amendment VIII provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

      . In pertinent part, 42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

      . The judgment did not contain the trial court’s disposition of Defendants’ exception of lack of subject matter jurisdiction; thus, the exception of lack of subject matter jurisdiction is presumed to have been denied by the trial court, and said denial has not been appealed nor is it before this court for review. See M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16.