author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Robert W. BELL.
    No. 11-720.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 2013.

      John F. DeRosier, District Attorney, Lake Charles, LA, Carla S. Sigler, Karen C. McLellan, Alberto Dupuy, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward King Alexander, Jr., Calcasieu District Defender, Lake Charles, LA, for Defendant/Appellant, Robert W. Bell.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Robert W. Bell, was indicted by a grand jury on March 6, 2008, for aggravated rape, a violation of La.R.S. 14:42, and sexual battery, a violation of La.R.S. 14:43.1. The indictment alleged Defendant engaged in oral sexual intercourse with H.N., a juvenile born March 16, 1994, and made H.N. touch his penis with her hand during a period of time from January 1, 1997, to December 31, 2003. Defendant filed a motion for discovery and inspection and two motions for bill of particulars on May 2, 2008. The State filed a motion for production of physical evidence on May 22, 2008. The trial court granted the State’s motion on June 10, 2008, and ordered Defendant to “provide all physical evidence of photographs of his penis to the State of Louisiana for comparison through Calcasieu Parish Sheriffs Office on June 11, 2008.” Photographs of Defendant’s penis were taken on June 11, 2008, by Corporal Tim Soileau.

The State responded to Defendant’s motion for bill of particulars on June 18, 2008, by furnishing a copy of the indictment and by responding, “The answers can be obtained by reading the Discovery materials.” The State objected to furnishing a further response.

The jury found Defendant not guilty on the first count of aggravated rape and guilty of attempted sexual battery as a responsive verdict on the second count. He was sentenced to five years at hard labor with credit for time served. Defendant filed a motion in arrest of judgment, a motion for judgment of acquittal, and a motion for new trial, which were denied. He alleges eight assignments of error on appeal. We affirm.

| ¡.FACTS

H.N. was sixteen years old at the time of trial. She had never seen or lived with her biological father. H.N. has three brothers, two older and one younger than she. In 1997, H.N. was three years old, and Defendant was her stepfather.

At trial, H.N. testified Defendant made her “touch him in bad ways whenever [she] was a little girl.” The first time occurred when H.N. was three or four years old. She peeked in the bathroom door, and Defendant told her to come in. His pants were down, and “he had [her] feel him ... with [her] hand.” She touched his penis with her hand. The touching always occurred in the bathroom when her two older brothers were at school and her mother was at work.

When H.N. touched Defendant’s penis, she noticed “a bump” on it; Defendant told her “he swallowed a banana Runt [candy], and it got stuck.” His penis felt “kind of hard, kind of squishy ... the same at one time.” Defendant would tell H.N. “to try and hang on it.” Defendant continued to make H.N. touch his penis until she was around eight or nine years old.

On one occasion, Defendant “grabbed a rag and then he said he needed to clean [her]. And he brought me to momma’s room and laid me down and put his hand down there. And the rag, it wasn’t the rag.... Because it was warm and slimy and a rag is rough.” She recalled seeing the rag on his hand, and she did not look down. This incident occurred before H.N. started attending school.

H.N. said she told Defendant she wanted to tell someone about what happened to her. Defendant “told [her] to tell ... over and over again,” but she never did until she told her friend, Brittany Campbell, around age thirteen. H.N. also told Brittany’s sister, Brooke; she asked them not to tell anyone because she “was scared.”

|aWhen H.N.’s mother first questioned her about whether Defendant had done anything to her, she told her no “because [she] didn’t want them to know.” H.N. and her mother went to the sheriff’s office the day after H.N. “talked to her about everything,” and over the next couple of days H.N. told them things she remembered as she “would get nerve enough where [she] was able to tell them — tell her.” She told how she would wake up and Defendant “would have a porno in; and he would have [her] sit down and watch it with him,” how Defendant “would tell [her] to go get a knife, and he said that it was too big and he needed to cut it off now,” and “how [they] used to take showers together.”

At trial, H.N. explained she used pictures of a girl and a man at the child advocacy interview to show what happened to her. She circled the vagina “because he licked me down there,” and she circled the hands because he touched her with them. On the picture of a man, she circled the penis “[b]ecause he made [her] touch him there,” and she circled the mouth “[b]e-cause he touched [her] with that.”

H.N. testified she told the truth at trial and did not lie to get back at Defendant, her stepfather, for anything. She did not tell her mother sooner “[b]ecause [she] was scared. [She] thought [she] was going to get in trouble. And [Defendant] was [her] dad. [She] didn’t want him going anywhere.”

Brittany Campbell was eighteen at the time she testified at trial. She had known H.N. since the third grade, and they were good friends. When Brittany was around age twelve or thirteen in the fifth grade, H.N. told her Defendant had made her watch dirty movies with him and made her touch him when she was younger. H.N. asked Brittany not to tell anyone, and Brittany told H.N. she should tell her mom when she was ready. Brittany did not believe H.N. would lie about something like this; when H.N. told Brittany, “She was like crying.... She was|4very upset. She didn’t want to tell me at first.” Brittany promised H.N. she would not say anything, but she encouraged H.N. to tell her mother. From her point of view, Brittany believed Defendant was a good man, based on how he treated her personally.

April Bell, Defendant’s former wife and H.N.’s mother, testified that she met Defendant in July 1996. Defendant watched H.N. after school several times, and he moved into a trailer with April in August 1997. In January 1999, April began attending school, and Defendant took care of H.N. while April was in class. April and Defendant were married on May 12, 2000. Throughout 2001 and 2002, Defendant watched H.N. after school.

April’s divorce from Defendant became final in October 2005. Their custody agreement involved visitation of their child together, but H.N. would also visit Defendant sometimes. Defendant and April reconciled around March 2006, and were together for about a year, and H.N. spent time with Defendant in 2007.

In January 2008, April’s son asked H.N. if something had happened to her after a discussion of possible abuse involving H.N.’s younger half-brother. H.N. was eating, and she put her head down and burst into tears. April then asked her about exactly what happened; she called the sheriffs department and made an appointment for the next day.

Detective Michael Primeaux, of the Cal-casieu Parish Sheriffs Office, received an arrest warrant for Defendant on January 24, 2008, and arranged for Defendant’s arrest in Beauregard Parish. Detective Primeaux first asked Defendant how many times H.N. had touched his penis with her hand. Defendant said, “never, never happened, couldn’t have happened, didn’t happen.” Detective Primeaux then asked Defendant “about the time when she had disclosed to [them] about the oral sex when he would wipe her with a rag.” Defendant said “that | ¡¡never happened, he the [sic] never did oral sex on her, never could have happened, didn’t happen.” Defendant also denied H.N. could have walked into the bathroom after he had taken a shower. Defendant did say he was urinating in the restroom on one occasion when H.N. walked in on him. He was able to turn away, and H.N. probably saw his penis for probably one to two seconds.

After Defendant denied the allegations, Detective Primeaux asked him how H.N. could know about a specific characteristic of his penis. Defendant then became very uncomfortable, pale, and “just almost deflated.” He mentioned for the first time he had been sick with pneumonia. Defendant began to talk about childhood abuse at the hands of his father. He then related an incident where he was masturbating in the shower when H.N. came in and asked what he was doing. When asked again about allegations of oral sexual intercourse, Defendant responded “that was so, so, so long ago, he doesn’t remember that incident, that he used to drink a lot in the past.”

Detective Primeaux had received information about a bump on top of Defendant’s penis. H.N. had “disclosed that [Defendant] told her that he had swallowed a Runt banana candy and it got stuck down there.” After a hearing, the State obtained an order to take photographs of Defendant’s penis. Corporal Tim Soileau took photographs that were introduced at trial as State Exhibits 8 through 11. In the first group of photographs, the bump was “not quite distinctive.” Defendant was asked “to start massaging or rubbing his penis to maybe have some blood circulate through it. And as he did that, the lump progressed a little bit higher than what it was earlier.” At trial, the State introduced a box of Runt candy for the jury’s reference.

Prior to Defendant’s arrest, April had informed the sheriffs department that Defendant “had numerous weapons in his residence, handguns, a shotgun, and | (¡swords that were supposed to be extremely sharp.” Detectives tried unsuccessfully to contact Defendant twice on January 22 and once on January 23, 2008, before seven officers, including a four-man SWAT team for purposes of officer safety, went to Defendant’s home on January 24, 2008. Officers tried twice to summon Defendant using a loud speaker and tried to call his cell phone. Defendant answered the call and was told to come outside with his hands up. After “maybe a minute or two,” Defendant did not come outside. Detective Primeaux called Defendant’s cell phone a second time; Defendant came to the door and was immediately grabbed and taken to the ground. From the time of the ride from Defendant’s home to Detective Pri-meaux’s conversation with Defendant at the Beauregard Parish Sheriffs Office, Defendant never said anything about being ill.

Alyson Meisner Dooley, Case Investigator with Child Protection Services from Beauregard Parish, received a report on January 22, 2008, about two sexual abuse allegations by H.N. against Defendant. The first allegation was that H.N. had touched Defendant’s penis. The second allegation was that Defendant had told H.N. “he was going to wash her with a cloth, but that he had put his tongue between her legs instead.”

Dooley met with Detective Primeaux and Defendant on January 24, 2008. Defendant denied that H.N. had ever seen or touched his penis. He said he had been in the bathroom once when H.N. walked in; Defendant realized she was there after a second or two and turned away so that H.N. could not see his “private part.” Defendant said that H.N. would have never been in the bathroom while he was taking a shower. He denied performing oral sex on H.N., and “[h]e denied ever telling her that he was going to wash her with a cloth and then instead put his tongue between her legs. And he also denied ever telling her to go and get a kitchen knife to cut his penis off because it had grown too big.”

|7At first, Defendant “was very gregarious and talkative.” About two hours into the interview, around 9:00 p.m., Defendant was told H.N. had identified “a lump on the top of his penis.” Defendant seemed “to suddenly fall ill ... You could see a physical change in his appearance. He became pale, said he didn’t feel good, that he had been suffering from pneumonia, hung his head down and started to gag and said that he was really tired because he wasn’t used to being — wasn’t used to being up that late.”

Defendant waived his Fifth Amendment rights and testified at trial. He stated he was involved in H.N.’s toilet training and hygiene during the time he babysat her. When asked whether he had put his tongue on her crotch or made her put her hands on his penis, Defendant responded, “Absolutely not.”

Discord regarding H.N. and her younger half-brother around the time of the allegations included H.N. “being hateful towards her brother, by kicking him in the groin whenever she got mad at him ...” Defendant had no control over April’s household because he was not living there. April had threatened H.N. with “kiddy jail,” and Defendant backed her up on that. Defendant told H.N. he “had to stand behind her mother’s decision.” About three or four weeks later, the police came to Defendant’s house. Defendant reiterated that he had not done any of the things he was accused of.

On cross-examination, Defendant admitted the possibility that H.N. had seen his penis when he was using the bathroom or drying off in the shower. Defendant was questioned about his reaction when he learned H.N. said he had a bump on his penis. He said that was after the detective had made offensive remarks about April, after Defendant “had said that [he] was not going to talk anymore to him, that this conversation was over.” It was apparent to Defendant “that [Detective Pri-meaux] was not interested in hearing anything but bits and pieces, answers to pleading questions in which [Defendant] had no idea-no ability to continue the statement of.” Defendant testified that he had told Detective Primeaux he was weak and recovering from pneumonia at the time the detective called him at home on his cell phone. Defendant “knew what was going on” at the interview, [b]ut when you take tepin (sic) hydrate with codeine, you start to fall asleep.”

Defendant testified H.N. was making up these allegations, but he had no idea why. He said Brittany and Brooke had told him H.N. had said some things. However, at Defendant’s bond reduction hearing, he had said only Brooke, Brittany’s twin, had told him. Brittany testified that she never told anyone about what H.N. told her.

Betty Campbell, the mother of Brooke and Brittany, testified that Defendant had a reputation for truthfulness, and “was always good to the kids.” She “never heard nothing bad” about Defendant, who was “a father figure” to Brooke and Brittany-

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial court patently erred in failing to withhold the imposition of sentence for twenty-four hours following the denial of his motion for new trial, as required by La.Code Crim.P. art. 873. The record reveals that the trial court did run afoul of the Code of Criminal Procedure. However, the error is harmless. Defendant does not assign as error excessiveness of his sentence, and he does not show, or even allege, any way he was prejudiced by the lack of delay. See State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erroneously denied his motion to continue the trial despite the alleged untimely receipt of the court’s list of priority cases, in violation of State v. Simpson, 551 So.2d 1303 (La.1989). Trial was 19originally set for September 8, 2008. It was refixed for trial on March 2, 2009; that date was continued unopposed at Defendant’s request until September 14, 2009. On March 2, 2009, trial was refixed for September 14, 2009. It was later re-fixed for January 4, 2010, February 8, 2010, May 3, 2010, and September 20, 2010. Jury selection began on September 28, 2010; trial was recessed first until October 4, 2010, and then until October 5, 2010.

The record contains no further motions or orders for continuance. Nevertheless, in a hearing on another matter on September 29, 2010, Defendant’s counsel argued that he had already orally moved for a continuance, and his motion was denied. The record does not reflect such a motion or disposition. At that hearing, Defendant’s counsel indicated that he was filing a written motion for continuance and supporting memorandum, which argued that he could not prepare for trial of this matter and another matter because of problems with the trial court’s priority list. Counsel then proceeded to argue the issue extensively, even though it had not been set for hearing, noting one of his concerns in this matter “was having to try [this] case while [the other] case was over [his] head for Monday.” The trial court granted the continuance in the other case and ordered the trial of this case to proceed. The record does not indicate that the motion to continue to which Defendant’s counsel referred was ever filed.

A motion to continue “shall be in writing” and “shall be filed at least seven days prior to the commencement of trial.” La.Code Crim.P. art. 707. The trial court may grant a written motion to continue at any time “only upon a showing that such motion is in the interest of justice.” Id. When circumstances occur unexpectedly and defense counsel has insufficient opportunity to prepare a written motion, the requirement of a written motion may be waived. State v. McGee, 04-963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, writ denied, 05-593 (La.5/20/05), 902 So.2d 1050.

The motion defense counsel argued on September 29, 2010, was oral. The prior motion to which counsel referred was likewise oral. Defendant’s counsel indicated that he had received the Simpson list twelve and one-half days prior to trial, on the Tuesday after the Labor Day holiday. The record reflects that he took no action toward seeking a continuance of this trial during those twelve and one-half days, but rather waited until the second day of jury selection to complain that he had insufficient time to prepare for trial. This case does not present circumstances that occurred unexpectedly nor did it provide counsel an insufficient opportunity to timely prepare a written motion. Again, the record contains no written motion. Accordingly, the trial court did not err in denying Defendant’s oral motion to continue the trial on the second day of jury selection.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant alleges that the trial court erred by denying his motion for mistrial after trial began with the seating of the jury but before the commencement of evidence and/or for denying his renewed motion for mistrial as to Count 2 of the indictment after conviction. Both of Defendant’s motions during trial concerned the allegedly defective indictment. He now argues the “overcharging of Count 1 requires reversal of his conviction on Count 2.”

The entire argument is based on the allegedly defective indictment. Count I of the indictment, filed March 6, 2008, reads:

COUNT 1: AGGRAVATED RAPE
[DEFENDANT] DID ENGAGE IN ORAL SEXUAL INTERCOURSE WITH TO WIT: H.N., DOB: 3-16-94, A JUVENILE, WITHOUT THE VICTIM’S LAWFUL CONSENT UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS PREVENTED FROM RESISTING THE ACTS BY THREATS OF GREAT AND IMMEDIATE BODILY HARM, ACCOMPANIED J_n APPARENT POWER OF EXECUTION OCCURRING IN CAL-CASIEU PARISH.

The indictment alleges that this act occurred “on or about January 1, 1997 to December 31, 2003.”

The crime of aggravated rape did not include oral sexual intercourse until an amendment of La.R.S. 14:42, effective August 15, 2001, changed the language of the statute. Acts 2001, No. 301, § 1. In response to the State’s pre-trial writ application seeking to include responsive verdicts on the verdict form, this court held, “If the evidence at trial shows the offense occurred prior to August 15, 2001, the trial court shall charge the jury as to the responsive verdicts available at that time” and ordered the trial court “to fully charge the permissible verdicts which are supported by the evidence adduced at trial.” State v. R.W.B., an unpublished writ ruling bearing docket number 10-1198 (La.App. 3 Cir. 10/5/10).

After a trial begins, an order of mistrial is mandatory when the indictment contains a defect of substance. La.Code Crim.P. art. 487(A). A defect of substance is one “which will work to the prejudice of the party accused.” State v. Harris, 478 So.2d 229, 231 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1331 (La.1986) (quoting City of Baton Rouge v. Norman, 290 So.2d 865, 870 (La.1974)). In Harris, the trial court allowed amendment of a defective indictment after trial began over the defendant’s objection. This court held the defendant did not allege or prove prejudice resulting from the defect in the original indictment, he was made aware of the crime charged and the date and time it allegedly occurred, and his rights concerning pre-trial notice and double jeopardy were not compromised. Thus, the defect was one of form, not of substance, and the trial court did not err by allowing the amendment.

112Here, Defendant alleges prejudice by “the defect and the overcharging of Count 1.” He contends that the State proceeded with prosecution of Count 1 despite a lack of evidence to support the charge, and the “other crimes” evidence the jury was allowed to hear was the evidence of the aggravated rape charged in Count 1. Defendant acknowledges his acquittal on Count 1 but nevertheless argues the prosecution of that count somehow influenced his conviction on Count 2, “due to the overall prejudicial effect of the flawed bill of indictment.”

The trial court considered the indictment here to be defective because the facts on which the State relied constituted the crime of aggravated rape only for part of the time period alleged by the State in the indictment. The court

worked [its] way through that to make sure that the crime that [it was] dealing with fit particular time periods. The [c]ourt listened to the evidence and made rulings as [it] went along to insure that the jury would only consider the initially indicted charge of aggravated rape only for a particular time period because of the change in the law.

Evidence of other crimes “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” La.Code Evid. art. 404(B). Evidence of the “other crime” in this case, i.e., aggravated rape, was not offered or admitted as an indication of character. It was offered because aggravated rape was the crime charged in Count 1 of the indictment.

The jury found Defendant not guilty on Count 1. This verdict shows that the jury obviously did not consider the evidence the State presented to be evidence of “other crimes”; through the not guilty verdict, the jury showed it did not consider Defendant to have committed that crime. We, therefore, fail to see how Defendant was prejudiced. Because we find no prejudice resulted, the defect in the indictment was one of form, not of substance; therefore, the trial court did not err in denying Defendant’s motion for mistrial.

^ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues reference to H.N. as “the victim” by the trial court and the State prejudiced him. He contends the reference “presupposes that the fact has been established that the accuser is the victim of the crime at trial, and thus invades the province of the jury.” Defendant cites no authority to support this position.

Defendant fails to cite any instance where reference to H.N. as “the victim” caused any prejudice to him or resulted in unfair treatment. The trial court’s instructions to the jury told them to disregard any impression he may have given regarding Defendant’s guilt or innocence. He explained Defendant was “presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.” This argument is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues prospective juror # 316 was improperly dismissed for cause. Such an argument is proper only where “the effect of the ruling is to allow the state to exercise more peremptory challenges than is allowed by law.” State v. Green, 98-1388, p. 12 (La.App. 3 Cir. 3/31/99), 735 So.2d 723, 731, writ denied, 00-2904 (La.8/24/01), 795 So.2d 323 (citing State v. Joe, 28,198 (La.App. 2 Cir. 7/26/96), 678 So.2d 586, writ denied, 97-559 (La.10/31/97), 703 So.2d 16; State v. Fleeks, 26,720 (La.App. 2 Cir. 3/1/95), 651 So.2d 370; La.Code Crim.P. art. 800(B)). Here, the State was entitled to twelve peremptory challenges. La.Code Crim.P. art. 799. It exercised only eleven. Thus, even if the prospective juror were improperly excused for cause, his exclusion did not result in allowing the State peremptory challenges to which it was not entitled.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that he was improperly denied the right to submit impeachment evidence at trial; thus, his rights under the Confrontation Clause of ¡ 14the Sixth Amendment and his due process rights under the Fourteenth Amendment were violated. He complains that he was prevented from submitting evidence to show H.N.’s “motives of chafing at parental restriction of her conduct and society with a particular member of the opposite sex or boys generally, and of what before trial had come full flower as her manifest biological imperative.” Defendant argues that he should have been allowed to put on evidence that H.N. had borne two children by the time she testified at trial at age sixteen. He speculates that the jury “was left to wonder whether [he] himself had possibly fathered one or both of them,” although the only reference to either child occurred when H.N. testified, during Defendant’s cross-examination, that she lived with “her two babies.”

Evidence of a victim’s past sexual behavior is certainly admissible under certain circumstances. La.Code Evid. art. 412(A). None exist here. Article 412’s comment (c) explains that this rule “is not intended to exclude evidence showing bias, interest, or corruption.” Defendant contends that he was entitled to put on the evidence to show H.N.’s keen interest in making the allegations: namely, to get him out of the way so that she could behave as she wished.

The evidence Defendant was able to admit showed that H.N. lived with her mother, little brother, two children, and stepfather at the time of trial. According to H.N.’s testimony, she had seen television programs talking about child molestation. She believed the father of her older half-brother had been charged with a child-molestation offense. Before H.N. told her friend, Brittany, what Defendant had done, Brittany “told [H.N.] that her dad had done something to her. But then she later said that didn’t happen.” H.N. believed Defendant and her mother were divorced, but Defendant “was staying in the house sometimes” when her conversation with Brittany took place. H.N. “might have been 12, but probably close to 13” at the time.

11SAround a half a year to a year later, H.N. told her mother and her half-brother that Defendant had done something to her. The next day, H.N.’s mother took her to the sheriffs office to report the incidents. When H.N. was around age thirteen, she and her mother began having disagreements about things she would be allowed or not allowed to do. She was also thirteen when her mother took her to the sheriffs office to talk about what she had told Brittany.

After H.N. talked to Brittany and her mother about what happened with Defendant, H.N.’s mother “caught her” with her boyfriend. H.N.’s mother “would get on to [her] about laying on the couch with him and warning [her] not to do anything.” H.N. testified that Defendant never said anything to her about that, and he never played any part in the conversations between H.N. and her mother. H.N.’s mother told her many times, up until around the time she was around age thirteen, that she would put H.N. in juvenile detention if she “didn’t straighten up.” H.N. testified that she did not make up what she said Defendant did to her because of the threats to be put in “juvie,” because of the custody dispute between her mother and Defendant involving her younger half-brother, or so that her younger half-brother could stay with her mother.

The trial court allowed extensive testimony by April, over the State’s objection, about details from her divorce proceeding with Defendant. Defense counsel was allowed to discuss papers filed in that proceeding that alleged April committed adultery with a named individual. When the State objected, defense counsel argued “[t]he relevance goes to the motive to make or to assist in the allegations that have been made against [Defendant] in this case.” April testified that she filed for divorce from Defendant because they argued all the time, he constantly yelled at H.N., and he and their son got into several arguments. The petition was filed September 12, 2005, and they executed a custody agreement | ^concerning their son on February 2, 2006. April testified that she and Defendant had no major issues regarding their son’s custody after that agreement. H.N. disclosed the alleged abuse by Defendant in the beginning of 2008.

Defendant himself testified about discord in their family regarding both H.N. and his son. He observed H.N. “being hateful towards her brother, by kicking him in the groin whenever she got mad at him, these types of things.” Defendant had no control over H.N.’s discipline in early 2008, because he was not living with her, but he did stand behind April’s discipline, including the “kiddy jail” that was threatened. He told H.N. he would stand behind her mother’s decision on that matter about three or four weeks before he was arrested.

As seen from the foregoing, Defendant put on a great deal of evidence tending to demonstrate the problems H.N. allegedly posed. However, by his own testimony, those problems occurred after he and April had divorced and settled their custody dispute. We find the introduction of evidence establishing the fact that H.N. became sexually active and gave birth to two children after Defendant’s arrest is prohibited by Article 412 under these circumstances. The admission of this evidence would not serve the purpose of showing H.N.’s interest in seeing Defendant sent away to prison for reasons other than the crimes of which he stands convicted.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant argues that Louisiana’s ten-to-two majority verdict law is federally unconstitutional. La.Code Crim.P. art. 782. Although it is unclear from the record whether this issue was properly preserved for review on appeal, we find no merit to Defendant’s argument. The trial court’s instructions to the jury stated, “At least ten members of the jury must concur to reach a verdict in this case on each count.” Defendant contends that the Supreme Court’s decision in McDonald v. City of Chicago, Ill., — U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), required a unanimous verdict here; thus, Defendant’s conviction must be vacated.

The McDonald court, if anything, verified the constitutionality of Article 782. McDonald concerns the issue of whether the right to bear arms is incorporated into the concept of due process, not the issue of one’s right to a unanimous jury verdict. The case does, however, discuss the applicability of the federal Bill of Rights to the states and notes, “[T]he Court abandoned ‘the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,’ stating that it would be ‘incongruous’ to apply different standards ‘depending on whether the claim was asserted in a state or federal court.’ ” Id. at 3035 (citing Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495, 12.L.Ed.2d 653 (1964)).

However, footnote 14 of McDonald states:

There is one exception to this general rule [that Bill of Rights protections are enforceable against the states]. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); see also Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. See Johnson, supra, at 395, 92 S.Ct. 1620 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U.S., at 406, 92 S.Ct. 1628, 32 L.Ed.2d 184 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414-415, 92 S.Ct. 1628 (Stewart, J., dissenting); Johnson, supra, at 381-382, 92 S.Ct. 1620 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections 11Rapply identically to the States and the Federal Government. See Johnson, supra, at 395-396, 92 S.Ct. 1620 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments”).

McDonald, — U.S. at-, 130 S.Ct. at 3036-36, n. 14.

Defendant’s counsel even admitted, at the hearing of the motion in arrest of judgment, that “the majority verdict law is being consistently upheld, and that’s not going to change until the U.S. Supreme Court grants, cert, and reverses Appadoc-ca [sic] vs. Oregon.” That has not happened. Thus, based on Apodaca and the Court’s positive comments on it in McDonald, we conclude that Defendant’s argument is without merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant complains that the trial court erroneously “admitted highly-prejudicial police photographs of the defendant being forced to stretch out his penis while wearing jailhouse orange.” He contends admission of the photographs was more prejudicial than probative and violated his due process rights.

H.N. testified Defendant had “a bump” on his penis, and he told her he “swallowed a banana Runt [candy], and it got stuck.” The State obtained an order to take photographs in an effort to determine whether any penile abnormality in fact existed. Photographic evidence is generally admissible unless its probative value is outweighed by its prejudicial effect. State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.

Snyder involved the admission into evidence of postmortem photographs that the defendant claimed were prejudicially gruesome. Our supreme court held that “[postmortem photographs ... are admissible to prove corpus delicti and to | ^corroborate other evidence establishing cause of death and location and placement of wounds, as well as to provide positive identification of the victim,” and these were “relevant to illustrate the number and location of stab wounds to the victim.” Id. at 843.

This case presents a similar issue. The photographs, while certainly sensitive, are not gruesome. The photographs were admitted during Detective Primeaux’s testimony to corroborate H.N.’s testimony and support her credibility. The trial court was very careful to prohibit Detective Pri-meaux from testifying about his opinion of what he saw in the photographs. The trial court explained to the jury it could “make [its] own decision about whether something is there or not.” The trial court further instructed the jury that people in jail “wear jailhouse orange,” and “[t]he fact that person has been arrested, has been charged with a crime or is in jail is not proof that they committed any crime.” It also explained that the purpose of showing the jury the photographs was “only for the purpose of [the jury] seeing his penis.” We find that the trial court did an exemplary job in providing instruction, and consequently, the jury was able to make its own determinations and freely decide whether it saw anything in the photographs to corroborate H.N.’s testimony. The probative value of the photographs outweighed any prejudicial effect they may have had; thus, Defendant’s argument is without merit.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.

      . Initials of the victim are used throughout to protect her identity pursuant to La.R.S. 46:1844(W).


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James BOWDEN.
    No. 12-1352.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 2013.
    J. Phillip Haney, District Attorney, 16th JDC, Robert Clausen Vines, Assistant District Attorney, New Iberia, LA, for Appel-lee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant/Defendant, James Bowden.
    Court composed of MARC T. AMY, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

_JjOn September 6, 2011, Defendant entered an Alford plea to the charges of aggravated burglary and aggravated assault on a police officer. Subsequently, on November 3, 2011, the sentencing court imposed a sentence of fifteen years at hard labor without designating to which offense the penalty applied.

On June 12, 2012, Defendant filed a motion for appeal, and the trial court granted the out-of-time appeal on the same date. Thereafter, on July 22, 2012, Defendant died of natural causes at the Bogalusa Medical Center. The appeal record was lodged with this court on November 26, 2012.

On December 10, 2012, defense counsel filed a “Motion to Vacate the Judgments of Conviction and Abate Prosecution Ab Ini-tio ” with this court. Defense counsel asserts that, under the cited jurisprudence, a defendant’s convictions and sentences should be vacated and the prosecution voided ab initio when that defendant dies during the pendency of his appeal. State v. Harvey, 94-343, p. 1 (La.10/20/94), 644 So.2d 371, 371 (citing State v. McClow, 364 So.2d 566, 566 (La.1978); State v. Morris, 328 So.2d 65, 67 (La.1976)); State v. Burton, 46,552, p. 1 (La.App. 2 Cir. 9/21/11), 74 So.3d 253, 253-54.

Examination of the law and cited jurisprudence confirms that relief is due based on the facts in this case. Accordingly, Defendant’s convictions and sentence are vacated and all proceedings in this prosecution are abated from their inception.

CONVICTIONS AND SENTENCE VACATED; PROSECUTION ABATED FROM INCEPTION.


author: KITCHENS, Justice,

text:
    COLEMAN & COLEMAN ENTERPRISES, INC., d/b/a Coleman Funeral Home, Kenny G. Coleman and Kenny G. Coleman, Jr. v. WALLER FUNERAL HOME.
    No. 2011-CA-00697-SCT.
    Supreme Court of Mississippi.
    Nov. 15, 2012.
    Rehearing Denied Feb. 7, 2013.

      J. Hale Freeland, Oxford, M. Reed Martz, attorneys for appellants.
    J. Cal Mayo, Jr., Oxford, Paul Bowie Watkins, Jr., attorneys for appellee.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. This case concerns whether preneed contracts for funeral services were unilaterally transferable by customers from the original service provider, Waller Funeral Home (Waller), to another service provider, Coleman Funeral Home (Coleman). Customers who had contracted with Waller had prepaid the costs of their funeral services and merchandise, and Waller had placed their money in a trust maintained by the Mississippi Funeral Directors Association (hereinafter “the Trust”). Coleman, along with Aubrey Parham, who previously had contracted with Waller for prepaid funeral services, filed a declaratory action asking the trial court to find that the prepaid funeral services contracts issued by Waller to its customers were unilaterally transferable by those customers to Coleman. Waller filed a counterclaim that alleged tortious interference with its contracts, false advertising, and defamation. Waller argued in its motion for partial summary judgment, and the trial court agreed, that the contracts were valid, enforceable, irrevocable and nontransferable, and, thus, granted Waller’s motion. At trial, the jury was instructed accordingly.

¶ 2. Ultimately, the jury found in favor of Waller on all issues presented at trial and awarded both actual and punitive damages. Post-trial, upon the motion of Coleman, the circuit court reduced the punitive damages to $0 due to Coleman’s representation to the court that it had a negative net worth. Waller was awarded attorneys’ fees. Both parties have appealed the trial court’s final judgment.

¶ 3. We find that the trial court erred in allowing Waller to adduce speculative evidence about its alleged damages (future lost profits) for its contracting customers who are living, for whom no goods or services have been provided, on behalf of whom no payment from the Trust has been made to Coleman, and whose preneed funeral services contracts with Waller were found to be valid, binding, and nontransferable. Accordingly, we remand for a new trial on damages.

Facts and Procedural History

¶ 4. Waller and Coleman both operate funeral homes in Lafayette County, Mississippi. Waller opened in 1977, while Coleman opened its funeral home in 2004. Waller offered customers a preneed funeral trust program, which permitted them to make decisions regarding their desired funeral services and merchandise. The purpose of these preneed contracts was to fix the price of funeral services and merchandise, so the customer could avoid the risk of inflation. Waller placed any payment received from customers into the Trust. Over the years, Waller used three different contract forms for its preneed trust contracts. Form 3 was used before 1997. Form 2 was used from 1997 to 2002. Form 1 was used after 2002 and was subject to approval by the Office of the Secretary of State.

¶ 5. Upon its opening in 2004, Coleman advertised that it would perform funeral services for customers who previously had entered into preneed funeral contracts with other providers. One such consumer was Aubrey Parham, who sought to have his funeral services contract (entitled “Pre-Need Funeral Service Contract”), which he had entered into with Waller, transferred to Coleman. Waller issued a cease and desist letter to Coleman threatening a lawsuit for tortious interference with a contract, due to Coleman’s advertisements that stated Coleman would hon- or contracts with other funeral homes and due to Coleman’s having told Parham that it would honor his contract with Waller.

¶ 6. On or about May 18, 2005, Aubrey Parham died. At the request of Par-ham’s family, Coleman performed the funeral. The estate made requests for the refund of the prepaid funds, but Waller refused to release the funds from the Trust to the Estate. In the First Amended Complaint, the Parham estate alleged that a refusal to release the prepaid funds that had been held in trust for the purpose of funeral services constituted a conversion on the part of Waller and had caused the estate to suffer unnecessary attorney fees and other damages. Moreover, the complaint sought a declaratory judgment finding that Mississippi Code Sections 75-63-51 to 75-63-81 are unconstitutional, that customers may legally transfer their preneed contract forms to other providers, that Coleman had not engaged in tortious interference with a contract, that the Waller contracts contained a revocation clause, that (alternatively) the Waller contracts were contracts of adhesion and thus, void or voidable, and that the Waller contracts were ambiguous. Coleman also sought preliminary and permanent injunctions restraining and prohibiting Waller from filing suit against Coleman and requiring Waller to turn over the funds owed the Parham estate. Eventually, prior to trial, the Parham estate was paid funds out of the Trust, and thereafter, the estate paid Coleman for services rendered.

¶ 7. Waller filed its Answer, Affirmative Defenses and Counterclaim on August 15, 2005, against Coleman, and Kenny G. Coleman and Kenny G. (“Glen”) Coleman Jr. (collectively Coleman), alleging that Coleman intentionally had interfered with existing contractual relationships between Waller and its customers, and that Coleman had engaged in false, deceptive, and misleading advertising. Waller maintained in its counterclaim that Coleman had knowledge of the irrevocable nature of its contracts, but targeted Waller’s customers despite this knowledge. In its complaint, Waller asked for not less than $100,000 in compensatory damages, not less than $100,000 in punitive damages, reasonable attorney fees and expenses, and preliminary and permanent injunctive relief.

¶8. Waller filed a motion for partial summary judgment based on its argument that the contracts were valid, irrevocable, nontransferable, and enforceable. Based on the pleadings filed by the parties and a hearing on the matter, the trial court granted partial summary judgment on this issue based on its finding that no genuine issues of material fact existed as to whether the contracts entered into by Waller and its customers for funeral services were valid and enforceable agreements that could not be transferred by the purchaser to another funeral service provider without Waller’s consent. In so doing, the court noted that the contracts lacked a revocation clause, and, furthermore, in some instances clearly stated they were irrevocable.

¶ 9. Trial commenced on January 31, 2011, and the only remaining issues were those contained in Waller’s counterclaim. Ultimately, the jury awarded Waller $55,000 in compensatory damages and $25,000 in punitive damages. Post-trial, Coleman filed a motion to amend the verdict and reduce the award of punitive damages, which the trial court granted, based on its finding that Coleman had a net worth of -$78,112 and that, consistent with Mississippi Code Section 11 — 1—65(B)(a), the punitive damages must be set at $0. Additionally, the trial court made a finding that Waller was entitled to $100,083.77 in attorneys’ fees and that the fees Waller requested were reasonable under McKee v. McKee, 418 So.2d 764 (Miss.1982), and Mississippi Rule of Professional Conduct 1.5. Aggrieved by the jury’s verdict and trial court’s award of attorneys’ fees to Waller, Coleman filed the instant direct appeal. Waller filed the instant cross-appeal.

Discussion

On Direct Appeal

I. Whether the trial court erred in granting Waller partial summary judgment and in instructing the jury that the consumers’ preneed funeral services contracts with Waller were nontransferable to another service provider.

¶ 10. Coleman asks this Court to reverse the jury verdict and render judgment in its favor based on its contention that the contracts at issue could be transferred unilaterally by customers to a substitute provider. Alternatively, Coleman contends this Court should reverse and remand for a new trial to allow a jury to decide this issue. In reviewing a trial court’s grant or denial of summary judgment, our well-established standard of review is de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Likewise, the interpretation of a contract is a question of law that this Court reviews de novo. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (Miss.2010) (citing Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (Miss.1999); Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993)).

¶ 11. Coleman makes several arguments for the first time on appeal that it failed to make in support of its response in opposition to Waller’s motion for summary judgment and/or its own counter-motion for summary judgment, including: (1) Waller was not a party to the contract, but simply the trustee’s agent who accepted consumers’ funds to be held in trust for the benefit of those consumers; (2) Waller’s contracts are impermissible restraints on trade under the Sherman Act; (3) industry standards dictate that preneed funeral service contracts are portable in nature and allow the consumer to choose another service provider at any time; and (4) the amendment to the Mississippi Pre-need Cemetery and Funeral Registration Act, effective July 1, 2012, recognizes the portability of preneed services contracts; thus, it is evidence of the legislative intent to make preneed funeral services contracts transferable. See Miss.Code Ann. § 75-63-63 (Supp.2012). These arguments were never properly before the trial court and should not be addressed by this Court. “[A] trial judge cannot be put in error on a matter not presented to him.” Chantey Music Publ’g, Inc. v. Malaco, Inc., 915 So.2d 1052, 1060 (Miss.2005) (quoting Southern v. Mississippi State Hosp., 853 So.2d 1212, 1214-15 (Miss.2003)). “This Court [will] not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs.” Id. (citing Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989)).

¶ 12. The argument that Coleman made in its complaint, and the argument made before this Court, is that the terms “irrevocable” and “non-transferrable,” as used in the contracts, are ambiguous terms that should be construed against Waller as the drafter of the contract. The elements of a valid contract are: “(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003) (citation omitted). In the instant case, customers contracted for services and merchandise at the current rate, while Waller contracted for payment upon performance of services, which it contractually obligated itself to perform upon the contracting customer’s death.

¶ 13. Mississippi Code Section 75-63-63 (Rev.2009), as it existed at the time the contracts at issue were drafted, provided:

If the preneed contract contains a revocation clause, the contract insured or his representatives may name a substitute provider for the preneed contract at any time prior to the performance of the contract. The naming of the substitute provider shall be in writing .... Upon receipt of the notice of substitute provider, the original provider shall be relieved of all obligations to perform the contract including all obligations of reporting and accounting, and the substitute provider shall assume all obligations to perform the contract including all obligations of reporting and accounting.

Thus, contracts formulated after the January 1, 2002, effective date of Section 75-63-63 were required to have a revocation clause in order for customers to chose a substitute provider to perform his or her funeral services. Form 1, used by Waller after 2002 and subject to Section 75-63-63, did not contain a revocation clause; thus, those contracts were irrevocable and nontransferable under the statute.

¶ 14. Prior to January 1, 2002, the contracts were governed by common law contract principles. “[I]n the absence of some provision in the contract authorizing termination or cancellation, every contract is presumed irrevocable.” Theobald v. Nosser, 752 So.2d 1036, 1041-42 (Miss.1999). Neither Form 2 nor Form 3 contained a provision authorizing termination or cancellation, and both even contained the terms “irrevocable ” and “non-transferable.” Accordingly, we cannot find that the trial court erred in finding that these binding, enforceable agreements were not unilaterally transferable by Waller’s customers to Coleman.

II. Whether the trial court erred in allowing the jury to consider Waller’s tortious interference claim.

¶ 15. The elements for tortious interference with a contract are:

“(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted.” Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992) (citing Liston v. Home Ins. Co., 659 F.Supp. 276, 281 (S.D.Miss.1986)). The plaintiff must prove that an enforceable obligation existed between the plaintiff and another party. Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 898, 407 (Miss.1997). In addition, the plaintiff must prove that the contract would have been performed but for the alleged interference.

Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss.1998). With a claim of this type, “a showing of specific intent is not required. Rather, intent can be inferred when a defendant knows a contract exists between two parties and does a wrongful act that he is certain or reasonably certain will interfere with the contract.” Neider v. Franklin, 844 So.2d 438, 437 (Miss.2003) (citing Cranford v. Shelton, 378 So.2d 652, 655 (Miss.1980)).

¶ 16. The trial court already had resolved the issue that an enforceable obligation existed between Waller and its customers. Waller then had to prove the four elements of tortious interference, in addition to proving that the service contracts would have been performed but for Coleman’s interference.

¶ 17. After having advertised that it would honor Waller’s preneed funeral services contracts, Coleman drafted and had customers sign a document entitled “Official Transfer Notice,” which specifically referenced Waller’s preneed trust contract, making it, in essence, a new contract for goods and funeral services with Coleman. Although Coleman maintained at trial that it had no knowledge the contracts were irrevocable, Waller cites evidence that, when Coleman filed its complaint with the Secretary of State’s office against Waller, the Secretary of State made it clear that Mississippi law allowed for irrevocable preneed services contracts and that Parham’s contract with Waller was irrevocable. Ordinarily, “[w]hen testimony is contradicted, this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial.” Venton v. Beckham, 845 So.2d 676, 684 (Miss.2003) (citation omitted).

¶ 18. However, we find that Waller’s claims of tortious interference with contracts of those customers still living at the time of trial did not meet the fourth element of a claim of tortious interference with a contract in that Waller could not prove that actual damages or loss had resulted, given that the trial court had held that those living customers had irrevocable, nontransferable contracts with Waller to be performed upon their deaths. The money paid into the respective trusts by those living customers still is being held in trust. For Waller to be paid for those customers’ funeral services and goods, would create the risk of double recovery by Waller upon the death of those customers with whom Waller continues to have valid contracts. Accordingly, Waller was entitled only to damages in the form of lost profits for those contracts that were actually performed by Coleman (irrespective of whether Coleman was paid in full for those goods and services). We agree with Coleman that evidence adduced as to Waller’s future lost profits for living customers, with whom Waller still has enforceable contracts, was speculative in nature and warrants a remand for a new trial on damages. Moreover, we agree with Coleman that any funeral services contracts performed by Coleman with Waller’s consent cannot be claimed by Waller as lost profits.

III. Whether the trial court erred in allowing the jury to consider Waller’s false and deceptive advertising claim.

¶ 19. The Lanham Act provides a civil remedy for any person damaged or likely to be damaged by false or misleading representation of fact in commercial advertising or promotions which misrepresent the nature of his or another person’s goods, services, or commercial activities. 15 U.S.C.A. § 1125(a)(1) (2009). To sustain a claim of false and misleading advertising pursuant to the Lanham Act, Waller had to show that Coleman’s advertisements were either false, or if not literally false, then likely to mislead and confuse consumers. Id. At trial, Waller placed the published advertisements into evidence, which showed Coleman making claims that prepaid funeral services, insurance policies, and funeral plans were unilaterally transferable by Waller’s customers with contracts. In addition to ads published in local newspapers, Coleman advertised on several billboards, one of which was in close proximity to Waller Funeral Home.

¶ 20. A prima facie case of false advertising under the Lanham Act requires the plaintiff to establish:

(1) A false or misleading statement of fact about a product;
(2) Such statement either deceived, or had the capacity to deceive a substantial segment of potential consumers;
(8) The deception is material, in that it is likely to influence the consumer’s purchasing decision;
(4) The product is in interstate commerce; and
(5) The plaintiff has been or is likely to be injured as a result of the statement at issue.

Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495 (5th Cir.2000). The jury was instructed on these elements.

¶ 21. Coleman maintains that the advertisements reflected its knowledge of the industry custom and practice and that it did not intend to mislead the public. To the contrary, Waller argues that Mississippi law, at the time the contracts were executed, allowed for irrevocable funeral services contracts, and that Coleman had knowledge that the contracts were nontransferable, yet advised potential customers to the contrary in its ads.

¶ 22. The evidence shows that Coleman had actual knowledge that Mississippi law allowed for irrevocable funeral services contracts and that, absent a revocation clause, customers could not unilaterally transfer their policies without Waller’s consent. Coleman filed a complaint with the Secretary of State’s office, listing several of Waller’s customers as complainants, and asking that office to advise him as to whether those contracts were transferra-ble. The Secretary of State’s office responded in a letter dated August 12, 2004, advising Coleman that Mississippi Code Sections 75-63-55(6) and 73-63-63 “clearly contemplate[ ] irrevocable contracts” and provide the procedure for substituting providers if the contract contains a revocation clause. The office further determined that Aubrey Parham’s contract with Waller was irrevocable due to its lack of a revocation clause and that it did not appear as though “he can change providers under this contract.”

¶23. This was an issue for the jury to resolve. The jury weighed the conflicting evidence and found in favor of Waller. This Court resolves “all conflicts in the evidence and every permissible inference from the evidence” in favor of the verdict. Venton, 845 So.2d at 684. This assignment of error is without merit.

IV. Whether the trial court erred in granting Waller’s attorneys’ fees.

¶ 24. Under the Lanham Act, the trial court in “exceptional cases” may award the prevailing party reasonable attorney fees. 15 U.S.C.A. § 1117(a) (2009).

The prevailing party bears the burden of demonstrating the exceptional nature of the case by clear and convincing evidence. An exceptional case is one where the violative acts can be characterized as malicious, fraudulent, deliberate, or willful. The necessary showing demands a high degree of culpability on the part of the infringer, for example bad faith or fraud.

Bd. of Supervisors for Louisiana State Univ. Agric. and Mech. College v. Smack Apparel Co., 550 F.3d 465, 491 (5th Cir. 2008). Coleman asks this Court to reverse the trial court’s award of attorneys’ fees due to its contention that the fees were unreasonable and arbitrarily awarded. An award of attorneys’ fees is reviewed by this Court for an abuse of discretion. Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 478 (Miss.2002).

¶ 25. Coleman argues that Waller failed to meet its requisite burden of proof that Coleman’s ads were false and misleading, and that Coleman acted maliciously, fraudulently, and deliberately. The jury found this to be an exceptional case of false advertising under the Lanham Act.

¶ 26. Coleman makes several arguments that are without merit. First, Coleman argues that it should not be responsible for attorneys’ fees incurred relative to claims on which Waller did not prevail or damages it did not seek. In support of this premise Coleman cites A & F Properties, LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282-83 (Miss.Ct.App. 2000), in which the Court of Appeals held that the parties were entitled only to the attorneys’ fees for enforcing the specific contract provisions on which they prevailed. This was because the award of attorneys’ fees in A & F Properties was based on a contractual provision, not on statutory authority. Id. Generally, “unless a statute or contract provides for imposition of attorney fees, they are not recoverable.” Stokes v. Board of Directors of La Cav Imp. Co., 654 So.2d 524, 529 (Miss.1995) (quoting Century 21 Deep South Props., Ltd. v. Corson, 612 So.2d 359, 375 (Miss.1992)) (internal quotations omitted). Absent a “contractual provision or statutory authority providing for attorney fees, they may not be awarded as damages unless punitive damages are also proper.” Id. (quoting Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992)). In the instant case, statutory authority under the Lanham Act supported the award of attorneys’ fees as well as an award of punitive damages. Thus, attorneys’ fees were authorized.

¶ 27. Coleman further suggests that, pursuant to McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the trial court, in its determination of an appropriate amount of attorneys’ fees, was limited to “a sum sufficient to secure one competent attorney,” and that Coleman should not be responsible for fees of two attorneys. We do not interpret McKee as having held that attorneys’ fees in Mississippi are limited to the fees of only one lawyer.

¶ 28. Coleman also cites Gulf City Sea-foods, Inc. v. Oriental Foods, Inc., 986 So.2d 974, 979 (Miss.Ct.App.2007), in support of its contention that attorneys’ fees that are more than twice the amount of compensatory damages are unreasonable. However, Gulf City Seafoods, 986 So.2d at 979, was a collection suit, and the rule cited in that case is limited to collection suits.

¶ 29. Ordinarily, the fixing of reasonable attorneys’ fees is a matter within the sound discretion of the trial court. Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999) (quoting Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss.1966)). However, “[t]he [trial] court may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So.2d 1318, 1325 (Miss.1989) (citing Sanford v. Jackson Mall Shopping Ctr. Co., 516 So.2d 227, 230 (Miss.1987); Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1354 (Miss.1987)). Cole man suggests that Waller failed to adduce sufficient evidence during the post-trial hearing on attorneys’ fees and suggests that the trial court simply awarded the amount requested by Waller. The record, however, reveals that, in support of its post-trial motion for attorneys’ fees, Waller produced a detailed, itemized statement of fees incurred from April 2004 through trial in February 2011, accompanied by affidavits from its attorneys. This argument is without merit.

On Cross-Appeal

V. Whether the trial court erred in reducing the punitive damages from $25,000 to $0.

¶ 30. The jury awarded Waller punitive damages in the amount of $25,000, which the trial court decided was reasonable and rationally related to the statutory purpose of such damages. Post-trial, Coleman filed a motion for remittitur seeking a reduction of the punitive damages based on its negative net worth. In support of that motion, Coleman produced a balance sheet, a profit and loss statement, and affidavits from its accountant and its principals. Its accountant, Rob Church, CPA, made a determination of negative net worth. Waller opposed the motion based on its contention that this information should have been disclosed during discovery, or at least prior to trial. See URCCC 4.04(a).

¶ 31. The trial court reduced the punitive damages to $0, based on its finding that Coleman had a negative net worth and that, pursuant to Mississippi Code Section ll-l-65(3)(a)(iv) (Supp.2012), an award of punitive damages that exceeds two percent of the defendant’s net worth for a defendant with a net worth of $50 million or less is prohibited.

¶ 32. Waller argues that Coleman waived the claim for a reduction of punitive damages made in its post-trial motion by not presenting evidence of net worth at trial. See C & C Trucking Co. v. Smith, 612 So.2d 1092, 1105 (Miss.1992) (holding that “evidence of net worth must be presented at trial, or error in the amount of punitive damages is waived.”). Moreover, Waller renews its argument that Coleman’s disclosure of its negative net worth was untimely, and, as a result of Coleman’s alleged untimely disclosure, Waller contends it did not have sufficient time to review the financial statements or to depose Coleman’s post-trial designated financial expert.

¶ 33. The holding of C & C Trucking Co., 612 So.2d at 1105, is as follows:

We hold that it is not legally necessary for either plaintiff or defendant to introduce evidence of the net worth of the defendant during the trial to support an award of punitive damages. If, however, no such evidence is presented, neither party may challenge on appeal either the inadequacy or the excessiveness of a punitive damages award. If a party wishes to preserve the question for appeal, evidence of net worth must be presented at trial, or error in the amount of punitive damages is waived.

Thus, both parties are charged with either presenting evidence of net worth, or waiving their right to challenge the amount of punitive damages. Because Waller failed to adduce proof of Coleman’s net worth during the punitive phase, it cannot now complain of the reduced verdict.

Conclusion

¶ 34. On direct appeal, Coleman’s argument that the contracts were ambiguous is without merit. There is no error on the part of the trial court in finding the contracts irrevocable and nontransferable. Regarding Waller’s claim of tortious interference with contracts, we agree with Coleman that Waller was unable to show it suffered any losses stemming from Coleman’s “transfer” of services for Waller’s customers who are still living. The trial judge ruled that Coleman’s “transfers” were null and void and that Waller still has binding contracts with these policy holders. Accordingly, we remand for a new trial on damages. As for Coleman’s final assignment of error, we find no error on the part of the trial court in awarding Waller’s attorneys’ fees and, thus, affirm.

¶ 35. Regarding the cross-appeal, Waller did not adduce proof at trial that Coleman had a positive net worth and cannot now challenge the insufficiency of the punitive damages award. Thus, we affirm the trial court’s order reducing the award to $0 based on a finding that Coleman had a negative net worth.

¶ 36. ON DIRECT APPEAL: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

CARLSON AND DICKINSON, P. JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . By the time of trial, Waller had abandoned its defamation claim.

      . The docket shows that the original complaint was filed October 7, 2004, and suggests that Aubrey Parham was one of the originally named plaintiffs; however, only the First Amended Complaint, which lists the Estate of Aubrey Parham as a named party, and was filed August 12, 2005, is included in the record.

      . The plaintiffs filed their response to Waller’s counterclaims on June 3, 2005.

      . Coleman maintains that the trial court erroneously relied on precedent from other states that was not binding on Mississippi courts. While the trial court’s order did cite two cases from other states, it is clear that the trial court relied primarily on Mississippi Code Section 75-63-63 (Rev.2009).

      .Included in the record are examples of three forms of contracts used by Waller. Only three representative contracts (one for each of the three forms) from three different customers (including that of Parham) are included in the record. Coleman does not take issue with the fact that the record does not contain any of the contracts at issue in Waller’s claim for lost profits arising from Coleman’s alleged tortious interference with those contracts.

      . 15 U.S.C.A. § 2 (2009).

      . Given its effective date of July 1, 2012, the amendment would not apply to any of previously existing contracts between Waller and its consumers.

      . The Secretary of State’s office has jurisdiction over consumer complaints regarding pre-need funeral services under the Mississippi PreNeed Cemetery and Funeral Registration Act, but only with respect to those contracts executed after the effective date of the statute, July 2002. Miss.Code Ann. § 75-63-69 (Rev. 2009).

      . Alternatively, Waller maintains that the trial court erred in reducing the punitive damages because the trial court’s finding that Coleman had a negative net worth was not based on generally accepted accounting principles, as required by Mississippi Code Section 11 — 1— 65(3)(b) (Supp.2012), given that Coleman’s expert did not state that his opinion was in accordance with generally accepted accounting principles. As we have found that Waller failed to preserve this issue for appeal, it is unnecessary to address this argument.