author:
MARC E. JOHNSON, Judge.
      WICKER, J.,

text:
    FIRST BANK AND TRUST v. Warren G. TREME.
    No. 13-CA-168.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      James M. Garner, Debra J. Fischman, Attorneys at Law, New Orleans, LA, for PlaintiffiAppellee.
    Joseph R. Ward, Jr., Attorney At Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ¡)Defendant/Appellant, Warren G. Treme, appeals the partial summary judgment in favor of third-party defendant, Joseph C. Canizaro, which resulted in the dismissal of Mr. Treme’s third-party demands against Mr. Canizaro filed in the 24th Judicial District Court, Division “J”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The pertinent facts for this appeal are as follows:

On July 26, 2006, Plaintiff/Appellee, First Bank and Trust (hereinafter referred to as “the Bank”) filed a Petition for Exec-utory Process against Mr. Treme to collect amounts due on a promissory note dated April 29, 2004 in the amount of $1,113,871.70, which resulted in the seizure and sale of Mr. Treme’s 2005 Chevrolet Avalanche. The Bank then filed a Supplemental Petition for Deficiency Judgment on February 9, 2007 for the remaining amount owed for the April 29, 2004 promissory note. In response, Mr. Treme filed an answer to the petition, a 13reconventional demand, and a third-party demand on July 17, 2007 against the Bank, First Bank and Trust Community Development Corporation (hereinafter referred to as “First Bank CDC”), and Mr. Caniza-ro, the Bank’s chairman.

In his reconventional and third-party demands, Mr. Treme asserted claims arising from two sets of agreements. As to the first set of agreements, Mr. Treme averred that he was contacted by representatives of the Bank in late 1996 and early 1997 and was requested to enter into numerous contracts for the construction and renovation of properties in a blighted area in and around the St. Thomas Housing Project. He alleged that he and the Bank subsequently entered into a series of contracts with the Bank over a period of time from August 1996 through 2004 for the blighted property. Mr. Treme stated the project had serious cost overruns that needed additional loans to cover the costs. According to Mr. Treme, the Bank loaned him the additional money with the assurance that the cost overruns would be recouped on the subsequent project; however, the recoupment by Mr. Treme did not occur. When Mr. Treme failed to pay the additional loans, the Bank began its collection efforts. Because of the collection efforts, Mr. Treme alleged the Bank, First Bank CDC, and Mr. Canizaro’s actions constituted breach of contract, fraud, fraudulent inducement, illegal tying, extortionate banking transaction, and breach of fiduciary duty in relation to a renovation project for the St. Thomas Housing Project.

As to the second set of agreements, Mr. Treme averred that he was involved in a joint venture with the Bank to build a banking branch in Kenner, Louisiana. Mr. Treme maintained that Mr. Canizaro used his position as chairman to interfere with the purchase of the property. As such, Mr. Treme also alleged that Mr. Caniza-ro’s conduct constituted breach of fiduciary duty, breach of contract, and |4intentional interference with contractual relations in reference to a joint venture to build the banking branch.

On October 17, 2007, the Bank, First Bank CDC, and Mr. Canizaro filed a peremptory exception of prescription, a peremptory exception of no cause of action, a peremptory exception of no right of action, and a dilatory exception of vagueness. In a judgment rendered on October 9, 2009, the trial court sustained, in part, the exception of prescription regarding the illegal tying claims; sustained the exception of no cause of action regarding the breach of fiduciary duty claims and allowed Mr. Treme 15 days to amend his demands; sustained the exception of no cause of action regarding the intentional interference with contractual relations claims and allowed Mr. Treme 15 days to amend his demands; and sustained the exception of no right of action regarding the claims against Mr. Canizaro as a corporate officer and allowed Mr. Treme 15 days to amend his demands. In all other respects, the trial court overruled the exceptions. In a First Amended, Supplemental and Restated Reconventional Demand and Third-Party Demand filed on October 23, 2009, Mr. Treme expanded the language of his original allegations and also alleged Mr. Canizaro’s conduct regarding the building of the banking branch also constituted a breach of a joint venture agreement.

On February 2, 2012, the Bank, First Bank CDC, and Mr. Canizaro filed three motions for partial summary judgment. The first motion requested that the trial court dismiss Mr. Treme’s breach of fiduciary claims against the Bank, First Bank CDC, and Mr. Canizaro on the basis that Mr. Treme failed to put forth any evidence of a joint venture relationship or any fiduciary duties between any of the parties. The second motion requested that the trial court dismiss Mr. Treme’s claims against Mr. Canizaro because Mr. Treme failed to put forth any evidence to prove Mr. Cani-zaro acted outside of his official capacity as a corporate officer of |5the Bank. The third motion requested that the trial court dismiss Mr. Treme’s claims regarding the building of the banking branch in Kenner on the basis that an alleged joint venture agreement could not be breached when Mr. Treme had no intention of performing under that alleged agreement.

The motions for partial summary judgment were heard on March 19, 2012. In its judgment rendered on August 10, 2012, the trial court granted partial summary judgment in reference to Mr. Treme’s claims against Mr. Canizaro in his personal capacity. The trial court held that in the “absence of evidence that Canizaro ever acted outside of his official capacity, or that he personally undertook any contractual obligation which expressly or indirectly lead [sic] to any fiduciary duty or other legal duty which he violated, there is no genuine issue of material fact.... ” The trial court also granted the partial summary judgment on Mr. Treme’s breach of fiduciary duty claims. The trial court found that other than vague assertions in his deposition, Mr. Treme failed to present sufficient corroborating evidence of a joint venture or any intent by the Bank, First Bank CDC, or Mr. Canizaro to enter into any relationship. Additionally, the trial court granted partial summary judgment on Mr. Treme’s claims regarding the building of the banking branch in Kenner. The trial court held there was an absence of evidence of a joint venture agreement between Mr. Treme and the Bank to build a branch on the alleged site.

On September 28, 2012, Mr. Treme filed an application for supervisory writs with this Court to review the trial court’s judgment granting the three partial summary judgments. Subsequently, Mr. Treme also filed a Petition and Order for Appeal on October 5, 2012, which was granted on October 15, 2012, seeking appellate review of the same issues raised in the writ application. In First Bank and Trust, et al. v. Warren G. Treme, 12-733 (La.App. 5 Cir. 12/6/12) (unpublished writ), Johnson J. dissenting, this Court denied the writ on the merits of the application. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Treme alleges the trial court erred in finding there were no genuine issues of material facts concerning his claims against Mr. Canizaro for interference with contractual rights between Mr. Treme and the Bank for the renovation project and the Albertson’s site.

LAW AND ANALYSIS

General Summary Judgment Law

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Favre v. Boh Bros. Const. Co., L.L.C., 11-451 (La.App. 5 Cir. 3/13/12); 90 So.3d 481, 485, writ denied, 12-1024 (La.6/22/12); 91 So.3d 976. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. Id. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the movant is entitled to judgment as a matter of law. Id. 485.

|7The initial burden of proof is with the mover to show that no genuine issue of material fact exists. Chambers-Johnson v. Applebee’s Restaurant, 12-98 (La.App. 5 Cir. 9/11/12); 101 So.3d 473, 475-76. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The non-moving party must then produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. Id., 101 So.3d at 476. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.

Renovation Project

Mr. Treme alleges the trial court erred in granting the summary judgment in favor of Mr. Canizaro by finding Mr. Caniza-ro cannot be personally liable for his actions taken in his official capacity. Mr. Treme argues Mr. Canizaro had an individual and private interest in the Bank’s efforts to renovate the properties in and around the St. Thomas Housing Project. Mr. Treme claims that, while Mr. Canizaro hid behind his position as chairman of the board for the Bank and pretended that he did not involve himself in the day-to-day operations of the construction activities, the evidence presented at trial proved Mr. Canizaro was intimately involved in those activities. Mr. Treme contends his testimony that Mr. Canizaro was motivated by tax credits to renovate the St. Thomas Housing Project and forcibly ordered him to hire 20 laborers and subcontraetors-which made the project financially more burdensome-is direct evidence of Mr. Cani-zaro’s interference with his contracts. Ultimately, Mr. Treme maintains that he produced sufficient evidence for a jury to determine whether Mr. Canizaro intentionally interfered with the construction contracts between himself and the Bank.

|RIn opposition, Mr. Canizaro contends this Court should refrain from considering Mr. Treme’s intentional interference claim regarding the St. Thomas Housing Project construction contracts because Mr. Treme is raising that claim for the first time on appeal. Mr. Canizaro proceeds to argue, that even if this Court addresses the merits of Mr. Treme’s claim, it should be determined that no genuine issue of material fact exists against him in his personal capacity. Mr. Canizaro argues that, aside from Mr. Treme’s own conclusory testimony and allegations, Mr. Treme has not shown any evidence that he acted outside of his role as a corporate officer of the Bank. Ultimately, Mr. Canizaro avers the trial court properly granted the summary judgment in his favor because Mr. Treme failed to prove elements essential to his intentional interference claim.

A review of the record reveals that Mr. Treme failed to present an intentional interference claim against Mr. Canizaro regarding the St. Thomas Housing Project renovations in the trial court for review. In his reconventional demand and amended reconventional demand, Mr. Treme alleged the actions of Mr. Canizaro constituted breach of contract, fraud, fraudulent inducement, illegal tying, breach of fiduciary duty, and extortionate banking transaction. Mr. Treme also failed to argue Mr. Caniza-ro’s intentional interference in the renovation projects in his brief in opposition to the motion for partial summary judgment or in oral argument against the motion. Consequently, the trial court did not address a claim of intentional interference of Mr. Canizaro in the renovation projects in its judgment.

As a general rule, appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed. Geiger v. State ex rel. Dept. of Health and Hosp., 01-2206 (La.4/12/02); 815 So.2d 80, 86, citing Boudreaux v. State through Dept. of Transp. & Dev., 01-1329 (La.2/26/02); 815 So.2d 7. “Where a party fails to raise an issue in the trial court in pleadings, in an opposition to a motion for summary judgment, or in a motion for new trial, the issue is not preserved for consideration on appeal.” Monlezun v. Lyon Interests, Inc., 11-576 (La.App. 3 Cir. 11/2/11); 76 So.3d 628, 636, quoting Stream Family Ltd. P’ship v. Marathon Oil Co., 09-561 (La.App. 3 Cir. 12/23/09); 27 So.3d 354, 360.

Because Mr. Treme did not present this issue to the trial court for review, he is now precluded from having this Court consider the merits of this issue.

Albertson’s Site

Mr. Treme alleges the trial court erred in granting the summary judgment in favor of Mr. Canizaro regarding the joint venture agreement to develop a banking branch office in Kenner, Louisiana. Mr. Treme avers the trial court completely discounted his sworn testimony that established an oral agreement was reached between him and the Bank through David Moore, the president of the Bank during the relevant time period. Mr. Treme contends his testimony proved that he and Mr. Moore reached an agreement in which Mr. Treme would locate an appropriate site for a branch office in Kenner, build a bank branch, and lease it back to the Bank.

FIRST BANK AND TRUST v. TREME

Cite as 129 So.3d 605 (La.App. 5 Cir. 2013)

La. 611

In furtherance of the agreement, Mr. Treme states that he found a six acre site; however, Albertson’s wanted to develop the entire site. Mr. Treme asserts that once Mr. Canizaro learned of the possible deal and Mr. Treme’s involvement with Clark Heebe, an employee of the Bank, for development of the site, Mr. Canizaro intentionally interfered with his ability to negotiate with Albertson’s by contacting the site owner and using confidential information. As a result of Mr. Canizaro’s contact with the site owner, Mr. Treme further asserts the site owner would not return his phone calls, which constituted a tortious interference with his ability to perform pursuant to the agreement. Through his testimony and the 110admission of Mr. Heebe’s affidavit, Mr. Treme argues he presented sufficient evidence of an oral agreement between him and the Bank.

Mr. Canizaro argues the trial court properly granted the summary judgment in his favor with respect to the Albertson’s site because Mr. Treme failed to produce any evidence to show there was ever a contract between him and the Bank or any interference with the alleged contract. Mr. Canizaro avers Mr. Treme failed to prove the existence of any of the formalities of a joint venture agreement to build a bank branch in Kenner. Mr. Canizaro maintains the affidavit of Mr. Heebe did not state that Mr. Treme actually had an agreement with the Bank, but only attests that Mr. Treme told him that an agreement existed. Furthermore, Mr. Canizaro contends Mr. Treme failed to set forth a valid cause of action for intentional interference with a contract claim against him because no contractual relationship existed between Mr. Treme and the Bank.

[6] In the judgment, the trial court found there was insufficient evidence presented by Mr. Treme that would constitute

a genuine issue of material fact as to the existence of an intentional interference claim pursuant to 9 to 5 Fashions, Inc., 538 So.2d 228 (La.1989). In addition, the trial court found there was an absence of evidence of a joint venture agreement between the Bank and Mr. Treme to build a branch on the property which would have been Albertson’s.

At the hearing, Mr. Treme submitted his depositions stating that he had a joint venture agreement with the Bank to build a branch in Kenner, and Mr. Canizaro interfered with that contract. Mr. Treme also submitted an affidavit of Mr. Heebe. In the affidavit, Mr. Heebe attested to the following, in pertinent part:

(5) That he understood from Treme that Treme had agreed to find suitable property in Kenner, Louisiana to build a branch for First Bank and Trust (“First Bank”).

|n(6) That Treme located approximately six acres in Kenner, Louisiana as a potential site.

(7) That, as it turned out, First Bank only needed one acre for its branch and requested that Treme find another tenant for the other five acres.

(8) That Albertson’s indicated an interest in developing the property but wanted the entire six acres.

(9) That he and Treme entered into a joint venture to develop the property to be used as Albertson’s

(10) That Treme made a full disclosure of the arrangement to First Bank and advised First Bank that another site would be located to accommodate a branch office for the bank.

(11) That Joseph Canizaro (“Canizaro”), then Chairman of First Bank, called him at home and requested that affiant report to Canizaro’s office. That affiant reported to Canizaro’s office the next morning and Canizaro told affiant that

his activities of proceeding with a development with Treme constituted a conflict of interest and was in violation of the employees’ handbook. That Caniza-ro then asked for a copy of the handbook and reviewed same but could not show affiant any provision that prohibited his activities. That Canizaro was angry and stated to affiant “you don’t have sh[* *]. The seller will not sell to you. I will not let that happen.”
(12) That Canizaro advised him that the bank intended to buy the property.
(18) That a few weeks later, Canizaro told affiant that he would allow the deal to go forward but, by that time, Albert-son’s had selected another site with another builder.
(14) That based upon his observation, Canizaro had interfered with the ability of affiant to proceed with the Albert-son’s deal.

The essential elements of a joint venture are generally the same as those of a partnership, e.g., two or more parties combining their property, labor, skill, etc., in the conduct of the venture for joint profit or benefits, with each having some right of control. Kelly v. Boh Bros. Const. Co., 96-1051 (La.App. 5 Cir. 4/9/97); 694 So.2d 463, 468. Joint ventures arise only where the parties intended the relationship to exist, and they are ultimately predicated upon contract, either | ^express or implied. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211 (La.3/18/04); 867 So.2d 651, 663. When a writing is not required by law, a contract not reduced to writing for a price or value in excess of five hundred dollars ($500.00) must be proved by, at least, one witness and other corroborating circumstances. La. C.C. art. 1846. A plaintiff may offer his own testimony in support of his claim; however, the other circumstances which corroborate the claim must come from a source other than the plaintiff. Regel L. Bisso, L.L.C. v. Stortz, 11-25 (La.App. 5 Cir. 10/25/11); 77 So.3d 1033, 1035-36.

After our de novo review of the partial summary judgment and the evidence submitted, we do not find that Mr. Treme submitted sufficient evidence to prove the existence of a joint venture agreement between him and the Bank. Although Mr. Ti'eme offered his own testimony regarding the alleged joint venture agreement, the submission of Mr. Heebe’s affidavit as corroborating evidence is insufficient. Mr. Heebe’s affidavit does not state that he had any personal knowledge of a joint venture between Mr. Treme and the Bank. The affidavit simply states that Mr. Heebe “understood from Treme that Treme had agreed to find suitable property” in Ken-ner to build a branch for the Bank. Mr. Heebe’s affidavit is also void of any information of how Mr. Treme and the Bank would conduct the venture for joint profit or the level of control for each party. Without any further corroborating circumstance, Mr. Treme failed to meet the burden of proving an oral contract over $500.00. Because Mr. Treme failed to prove the existence of a joint venture between him and the Bank, there is no need for this Court to address whether Mr. Canizaro intentionally interfered with that contract.

Therefore, we find that partial summary judgment was properly granted on this issue.

1 ^DECREE

For the foregoing reasons, we find the partial summary judgments in favor of Joseph C. Canizaro were properly granted. Warren G. Treme is assessed the costs of this appeal.

AFFIRMED

WICKER, J., CONCURS WITH REASONS.

WICKER, J.,

CONCURS WITH REASONS.

| T Although I agree with the result reached by the majority, I write separately to respectfully express my own reasoning.

In the proceedings below, Mr. Treme asserted various claims against the Bank, First Bank CDC, and Mr. Canizaro. In this appeal, Mr. Treme only argues the trial court erred in entering its judgment in favor of Mr. Canizaro on Mr. Treme’s intentional interference claims.

Mr. Treme claims that Mr. Canizaro intentionally interfered with contracts for both The Renovation Project and the Al-bertson’s Site. These contracts were between both Mr. Treme and the Bank, and Mr. Treme and First Bank CDC. As an initial matter, I agree with the majority that, because Mr. Treme did not raise the claim that Mr. Canizaro interfered with his contract with the Bank at the trial court, that matter is not before us. Additionally, I agree with the result the majority reached with regard to Mr. Treme’s claim for intentional interference of his contracts with regard to the Albertson’s Site.

In order to sustain a claim for intentional interference of contract, one must prove that there is a contract that was interfered with. 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989). As to the alleged joint venture for the Albertson’s Site, while I agree that joint ventures are governed in part by contract hlaw, I do not agree that joint ventures, are subject to the proof requirements of La. C.C. art. 1846.

As previously explained by this Court:

A joint venture results from the undertaking by two or more persons to combine their efforts, knowledge, property or labor to engage in and carry out a single business venture for joint profit. A joint venture is analogous to a partnership and controlled largely by the rules applicable to partnerships. There must be a sharing of the profits and losses with each party having some right of control over the business. The existence or non-existence of a joint venture is a question of fact and each case must be considered according to its circumstances. The principal difference between a partnership and a joint venture is that while a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint venture is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years. No formal or specific agreement is required. Generally the relationship may be formed by an oral agreement and the existence of a joint venture may be inferred from the conduct of the parties and other circumstances.

Glass v. Berkshire Dev., 612 So.2d 749, 751 (La.App. 5 Cir. 12/16/92) (quoting Riddle v. Simmons, 589 So.2d 89, 92 (La.App. 2 Cir.1991), writ denied, 592 So.2d 1316 (La.1992).)

In light of the foregoing, I would conclude that La. C.C. art. 1846 does not apply in this matter. However, I agree with the trial court in its underlying conclusion that Mr. Treme has failed to set forth evidence to create a genuine issue of material fact as to the existence of a joint venture. Therefore there is no genuine issue of material fact to maintain an intentional interference claim. Accordingly, I agree that the trial court’s judgment should be affirmed.

      . Although there is no information regarding this writ application in the appellate record, we take judicial notice of the application and the writ disposition. See, La. C.E. art. 201.

      . Despite the fact that the panel in writ application Treme, supra, addressed the correctness of the granting of the partial summary judgments, we do not consider the disposition of that writ as the law of the case. The "law of the case” principle embodies the rule that an appellate court will not reconsider its own rulings of law in the same case. Lejano v. Bandak, 97-0388 (La.12/12/97); 705 So.2d 158, 170, cert. denied, Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40. However, the doctrine is discretionary and is not applicable in cases of palpable error or when, if the law of the case were applied, manifest injustice would occur. Id., citing Vincent v. Ray Brandt Dodge, 94-291 (La.App. 5 Cir. 3/1/95); 652 So.2d 84. Because the supervisory writ consideration of the granting of the partial summary judgments related to Mr. Treme’s claims against Mr. Canizaro constituted palpable error, we are properly reviewing those claims in this appeal.

      . La. C.C. art. 1846, in relevant part, states "[w]hen a writing is not required by law, a contract not reduced to writing for a price or value in excess of five hundred dollars ($500.00) must be proved by, at least, one witness and other corroborating circumstances."


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Frankie BASKIN.
    No. 13-KA-351.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Twenty-Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

|2After being convicted of aggravated incest, defendant, Frankie Baskin, was adjudicated a fourth felony offender and was sentenced to 75 years imprisonment at hard labor. He has appealed both his underlying conviction and his habitual offender adjudication. For the reasons that follow, we affirm defendant’s conviction and habitual offender adjudication, amend his sentence, affirm the sentence as amended, and remand with instructions.

FACTS

At trial, the 16-year-old victim, C.C., testified that she first met defendant, who is her biological father, when she was seven years old. When C.C. was eight years old, she lived with defendant in Westwego. She went back to live with her mother in LaPlace when she was nine years old. Her family then lived in | aTennessee until shortly after C.C.’s twelfth birthday. When the family returned to Louisiana in January, 2008, they lived "with C.C.’s maternal aunt. However, in February of 2008, since her aunt did not have enough room to accommodate the entire family, C.C. went to live with defendant and his sister in LaPlace. In May of 2008, C.C. moved back with her mother. C.C. testified that after living in LaPlace, defendant moved to a hotel in Metairie, in Jefferson Parish, where she visited him and spent the night “a couple of times.” When C.C. was in eighth grade, defendant was living in Waggaman, also in Jefferson Parish. While she was in eighth grade, defendant moved to New Orleans, where C.C. stayed with him on occasion.

C.C. testified that in February of 2008, defendant began to “touch” her. The first time this happened, she awoke and defendant was on top of her, putting his penis inside her vagina. After this act, he went to sleep, and she cried herself to sleep. Defendant warned C.C. that if she told anyone about this incident, he would go to jail. C.C. testified that defendant raped her repeatedly over the next two years at the hotel in Metairie, at the home in Wag-gaman, and in New Orleans. Defendant made C.C. watch pornographic movies when the rapes took place.

In June of 2010, C.C. had difficulty walking due to pain in her leg and pelvic area. Her mother took her to a pediatrician, and after an ultrasound was performed, it was discovered that she was pregnant. C.C. explained that before the pregnancy was discovered, she had never told anyone that defendant was having sex with her.

After the pregnancy was discovered, an obstetrician was consulted, and C.C. was advised to immediately go to the hospital, where she had an emergency Caesarian section to deliver the infant. When she woke up in her room after the section, she was told that her baby boy had died shortly after birth.

K.C., C.C.’s mother, testified that defendant is the biological father of C.C. K.C. and defendant had a purely sexual relationship, which resulted in C.C.’s ^conception; however, defendant did not learn about C.C. until C.C. was two years old. Defendant saw C.C. sporadically until C.C. was approximately nine years old, at which time she went to live with him for several months. Thereafter, K.C. and C.C. moved to Tennessee, returning to Louisiana on January 12, 2008. C.C. lived with defendant and his sister in LaPlace from approximately February to May of 2008, while C.C. was in the sixth grade. After that time, defendant moved to a motel in Metairie, where K.C. would bring C.C. to visit defendant. When defendant moved in with his sister in Waggaman, K.C. brought C.C. to visit defendant there as well. K.C. explained that she never suspected any type of abuse was taking place, and felt it was important that C.C. had the opportunity to get to know her father’s family.

In 2009, C.C. turned 14 years old and K.C. continued bringing her to visit defendant, who was living in New Orleans at that time. The last time K.C. took C.C. to visit defendant was in February of 2010, while he was living in New Orleans.

K.C. said that she learned of C.C.’s pregnancy in June 2010 after taking her to a pediatrician following a complaint of pelvic area pain. C.C. did not want to identify the father of her baby. K.C. convinced C.C. to write the father’s name down and C.C. wrote “My D-A-D.” C.C. was put into the hospital where the infant died shortly after an emergency Caesarian section was performed. K.C. identified defendant in open court.

Dr. Ann Chau was accepted by the court as an expert in the field of maternal/fetal medicine. Dr. Chau was consulted to treat C.C. in June of 2010, after 14-year-old C.C. was found to be pregnant. Dr. Chau testified that C.C. appeared to be scared, quiet, and frightened. Because of C.C.’s young age, | ¡¡Dr. Chau asked her questions about her sexual activity. At that time, C.C. disclosed to Dr. Chau that she was pregnant after being raped by her father.

Based on the medical condition of the baby and the health of the mother, an immediate Cesarean section was recommended, and the infant was delivered on June 15, 2010. According to Dr. Chau, the baby boy was born alive, but passed away shortly thereafter due to a lack of lung development.

Detective Cynthia Durham, who is employed by the Jefferson Parish Sheriffs Office in the Personal Violence Section, testified that she was assigned to investigate this case after K.C. filed a police report. She began her investigation by obtaining background information on C.C., K.C., and defendant. She also interviewed C.C. and K.C. and contacted law enforcement agencies in Orleans and St. John the Baptist Parishes regarding ongoing investigations of defendant. Detective Durham recounted that when she interviewed C.C., she was “withdrawn, sad” and “had a difficult time articulating ... what had occurred.” In the course of her investigation, Detective Durham confirmed that allegations of abuse against defendant stemmed in part from incidents alleged to have occurred in Waggaman on Jasmine Street and in a motel on Airline Highway, locations within Jefferson Parish. Detective Durham was present for the interview that C.C. had at the Jefferson Parish Child Advocacy Center.

After obtaining information about the allegations against defendant, Detective Durham sought to obtain buccal swabs to verify that defendant was the biological father of the infant. Swabs were obtained from C.C., the deceased infant, defendant, and K.C.

IfiDetective Christie Chauvin of the St. John the Baptist Sheriffs Office, Criminal Investigations Division, began an investigation in June of 2010 into allegations of sexual abuse made against defendant. The case came to the attention of the Sheriffs Office through notification by the Office of Community Services, after C.C. gave birth. Detective Chauvin learned from interviewing C.C. that she was orally and vaginally raped by defendant in St. John the Baptist Parish from February to May of 2008. An arrest warrant was issued for defendant; he was arrested and Detective Chauvin interviewed him. During this interview, which was not recorded, defendant denied raping C.C. He “mainly wanted to discuss” his music career and his travels.

Bonnie Dubourg, a forensic DNA analyst for the Jefferson Parish Sheriff’s Office, was accepted by the court as an expert in the field of forensic DNA analysis. After analyzing buccal swabs from the deceased infant, C.C., defendant, and K.C., Ms. Dubourg compiled a report dated July 10, 2012. Based upon the genetic profiles of all four swabs, Ms. Dubourg concluded that the relative probability that defendant was the father of the deceased infant was 99.99%, explaining that defendant was 2.8 billion times more likely to be the father of the infant than another randomly selected black male. She also concluded that the relative probability that defendant was the father of C.C. was also 99.99%, explaining that defendant was 872.5 million times more likely to be the father of C.C. than another randomly selected black male. Ms. Dubourg explained that for paternity, statistics of 100% are not given.

Suzanne Jolissaint, a forensic interviewer at the Jefferson Parish Children’s Advocacy Center (“CAC”), testified that on July 25, 2011, she conducted a videotaped interview of C.C. A recording of this interview was played for the jury. 17Puring the interview, in response to Ms. Jolissaint’s comment that C.C. was there because “something may have happened,” C.C. responded, “My dad raped me.”

Daniel Dooley, a forensic interviewer for the Child Advocacy Center in New Orleans, testified that he conducted a recorded interview with C.C. on June 29, 2010. A recording of this interview, in which C.C. described the abuse, was also played for the jury.

Anne Troy, a forensic nurse practitioner at the Audrey Hepburn Care Center associated with Children’s Hospital in New Orleans, was accepted by the court as an expert in forensic pediatric child abuse. Ms. Troy conducted an examination of C.C. in November of 2010, and prepared a report in conjunction with that examination. This report and a transcript of her interview with C.C. were admitted into evidence and presented to the jury. Ms. Troy explained that the finding of a tran-section of C.C.’s hymen is a positive finding of intimate sexual contact.

After the conclusion of the State’s case, the defense presented the testimony of several witnesses. Vera Sims, defendant’s sister, testified that she has lived in a two bedroom apartment in LaPlace since 1993. Defendant lived with her at the apartment between June and December of 2007. She recalled that C.C. would come and spend nights there. Ms. Sims said that she never witnessed any inappropriate behavior between C.C. and defendant, and that C.C. always appeared to be happy. After defendant moved out of Ms. Sims’ house, he went to Mississippi to play music and then moved into a rental house in Waggaman. She was not aware that defendant had lived in a hotel, nor did she know the date that defendant moved to New Orleans. Ms. Sims never suspected that C.C. had been abused or was pregnant.

Kevin Bussard testified that he lived with defendant’s sister, Shelia, in Wagga-man between 2008 and 2012. Occasionally defendant slept in the back 1 ¡¡bedroom of the home before he went to work playing music. Bussard said that he did not see or have any reason to suspect that defendant was having a sexual relationship with C.C.

Shiela Baskin, defendant’s sister, testified similarly to Kevin Bussard. She stated that she had no reason to suspect that defendant was molesting C.C.

Defendant, Frankie Baskin, took the stand in his own defense, after being advised on the record of his right to remain silent and his option not to testify at trial. Defendant recounted his previous convictions for “cocaine,” simple burglary, and transporting illegal immigrants. He met C.C.’s mother, K.C., “on a bet” and the two had a “sex thing.” K.C. denied that C.C. was his child until C.C. turned seven years old. Upon learning that he was C.C.’s father, defendant flew to Savannah, Georgia, to meet C.C. for the first time. He wanted to establish a father-daughter relationship with her. Later, K.C. asked defendant if he could help take care of C.C.

Defendant returned to New Orleans and K.C. moved to LaPlace in 2008. Before C.C.’s eighth birthday, she moved in with defendant at his brother’s house for a few weeks. Defendant claimed that K.C. came and took C.C. back from him when defendant would not have sex with K.C. After C.C. turned nine, she stayed with defendant and his girlfriend for the weekend at his apartment in Harvey. C.C. was living with him when Hurricane Katrina struck New Orleans, and they evacuated to Wy-nona, Mississippi. C.C. lived with him until July 8, 2006, at which time he was charged with transporting illegal immigrants. Before surrendering himself to federal prison, he brought C.C. to K.C. in Nashville, Tennessee.

Defendant testified that in 2007, he was living with his sister in LaPlace. Defendant brought C.C. to live with him at K.C.’s request. He obtained temporary 19custody of C.C. and used his sister’s address to enroll C.C. in school. K.C. tried to take C.C. back at that time. Defendant’s sister watched after C.C. while he played music at night. Defendant, C.C., and another one of defendant’s daughters shared a bed together.

Soon thereafter, defendant “went” to Waggaman. He continued to assist K.C. and her children, including C.C., financially. He recognized C.C. as his biological daughter. Later that year, defendant brought C.C. to Waggaman. She stayed at his sister’s house, where they had a bed for her. C.C. was 18 years old at that time. Defendant said that when K.C. came to pick C.C. up, he and K.C. had a “sex thing” because he was “in heat at that time.” Defendant denied that he ever brought C.C. to his house in Waggaman, which was a “FEMA residence.” Defendant said that he does not dispute that C.C. went with him to the various places she identified.

Defendant denied having intercourse with his daughter at the location in La-Place. Defendant then generally denied having sexually abused anyone and stated that no one else had ever accused him of doing so. Defendant also said that C.C. showed no signs of being sexually abused, as she was an honor roll student, and never attempted to avoid defendant.

Defendant could not explain why C.C. identified him as the father of her child. He denied paternity of C.C.’s baby. He stated that he requested to pay for another DNA test but had not received any information as to how to go about doing so. With regard to other charges related to the sexual abuse of C.C. pending against him at the time of trial, defendant testified that he had no pending charges in Orleans Parish, but did have pending charges in St. John the Baptist Parish.

|10On cross-examination, defendant confirmed that C.C. is his daughter. He also confirmed that C.C. was under 18 years old. Defendant stated that C.C. was lying in the taped interviews she gave, which were played for the jury.

At the conclusion of the trial, defendant was found guilty of aggravated incest. He was sentenced to 20 years imprisonment and given a $25,000.00 fine. The State filed a habitual offender bill of information alleging defendant to be a fourth felony offender. After a hearing, the court found defendant to be a fourth felony offender and he was sentenced to 75 years imprisonment.

ASSIGNMENT OF ERROR NO. ONE

Introduction of other “bad acts” evidence

In his first assignment of error, defendant contends that the trial court erred in allowing into evidence other “bad acts” of defendant that were alleged to have occurred in St. John the Baptist and Orleans Parishes. Defendant specifically argues that the evidence did not fit the criteria enumerated in State v. Prieur, and La.C.Cr.P. art. 404(B) or La. C.E. art. 412.2. The record demonstrates, however, that the State only argued the admissibility of the other bad acts pursuant to La. C.E. art. 412.2.

Defendant argues that the separate charges pending from incidents with C.C., that had allegedly occurred in St. John the Baptist and Orleans Parishes, were improperly admitted as prejudicial because they had not yet been proven true at separate, respective trials. Defendant contends that because of the trial court’s ruling that allowed evidence of other crimes to be admitted at his trial, he was forced to defend himself against charges that weré outside the scope of the Jefferson Parish proceedings.

La. C.E. art. 412.2 provides, in relevant part:

|nA. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

The bill of information in this case charged defendant with aggravated incest upon a known juvenile which was alleged to have occurred in Jefferson Parish in 2008. On January 25, 2012, the State filed a “Notice of Intent to Use Evidence of Other Acts of Lustful Disposition and/or Sexually Assaultive Behavior by Defendant upon the Same Minor Victim,” to introduce evidence at trial of the following acts:

1. Defendant repeatedly had vaginal sexual intercourse with the same victim at Defendant’s sister’s house in LaPlace, Louisiana, over a period of months when victim was 12 years old, and also showed her pornography during these events.
2. Defendant repeatedly had vaginal sexual intercourse with the same victim at Defendant’s house at 3081 Laurel Street in Orleans Parish over a period of months when victim was 14 years old, and also showed her pornography during these events.

At the hearing on August 20, 2012, the State argued in support of its motion:

THE STATE:
The conduct that took place in Jefferson Parish that Defendant is charged with occurred approximately from August— excuse me, October 9, 2008, to March 31st of 2010, bookending those events occurring before in St. John were sort of an ongoing sexual abuse. The abuse begins in St. John Parish in 2008 and, then, depending on where the Defendant moves and where the victim has to come stay with Defendant, these acts continue both in Metairie, in Waggaman and then, finally, in Orleans Parish. For the purpose of narrative completeness, as well as the State is entitled to under 412.2, the State 112is seeking the introduction of the total history of this abuse, and I think we’re entitled to under 412.2.

At the conclusion of the hearing, the trial court found that the other alleged incidents of abuse were relevant to show that that there was no absence of mistake, and that defendant had a lustful disposition toward children.

At trial, C.C. testified that she had been raped repeatedly by defendant when she was 12 through 14 years old. C.C. testified that in February of 2008, while she was living in LaPlace with defendant, he began to “touch” her. The first time this occurred, she awoke and defendant was on top of her, putting his penis inside her vagina. Defendant warned C.C. that if she told anyone about the incident, he would go to jail. C.C. testified that defendant raped her repeatedly over the next two years at the hotel where he was staying in Metairie, in Waggaman, and in New Orleans. Defendant made C.C. watch pornographic movies when the rapes took place. Clearly the evidence of rapes occurring in LaPlace and in New Orleans was admissible under La. C.E. art. 412.2.

Further, C.C.’s testimony as to the rapes defendant committed outside of Jefferson Parish was admissible as Louisiana courts have long held that a victim’s testimony about crimes committed against them by the same defendant is admissible in the prosecution of that defendant for another offense.

In State v. Acliese, 403 So.2d 665, 667 (La.1981), the defendant was convicted of forcible rape of an 11-year-old girl. During trial, the victim testified that on at least six occasions during the weeks immediately prior to the offense charged, defendant had either raped or attempted to rape her at her home. She testified that the offenses generally followed the same pattern. Id. at 667. On appeal, defendant argued that the trial judge erred in allowing the introduction of evidence of prior sexual assaults by defendant on the victim to show his lustful 1 ^disposition toward her. In affirming defendant’s conviction, the Louisiana Supreme Court reasoned:

... in a prosecution for the commission of statutory rape, or rape of a female under the age of consent, or an attempt to commit such rape, evidence of prior sex offenses committed by the defendant with the same prosecutrix is generally admissible. Such evidence has been admitted for various reasons, such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant and the probability of his having committed the offense charged, or to rebut the defense of alibi.
[Citations omitted]

The court concluded, “... that in the instant case evidence of the prior rapes or attempted rapes by defendant” of the victim “was properly admitted in this prosecution for aggravated rape.”

In State v. Kinsel, 00-1610 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641, this Court relied on Acliese, supra, to affirm a defendant’s conviction for the aggravated rape of a child while she was between the ages of six and nine. In that case, the defendant was charged with a rape of the victim that had occurred in Jefferson Parish. At trial, however, the victim testified that the defendant had also raped her twice while her family lived in Monroe, Louisiana. Citing Adíese, this Court found no prejudice to the defendant in the admission of the uncharged “bad act” evidence, even though the defendant had not been provided with formal notice by the State that such evidence would be introduced at trial. Id. at 535.

Similarly, in the instant case, the alleged acts of sexual abuse against C.C. by defendant, which occurred outside of Jefferson Parish and were not charged in the instant bill of information, were properly admitted at trial. At the very least, the other acts demonstrated defendant’s lustful disposition toward C.C., who he raped repeatedly over the course of several years using a similar pattern of abuse, and |]4were admissible under La. C.E. art. 412.2. Further, these acts were admissible pursuant to the Supreme Court’s holding in Adíese, supra.

For the foregoing reasons, we find defendant’s first assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. TWO

Sufficiency of proof of defendant’s habitual offender status

In this assignment of error, defendant contends that the trial court erred in finding him to be a habitual offender because the State failed to sufficiently prove his habitual convictions under the burden of proof set forth in La. R.S. 15:529.1.

Following defendant’s conviction in the instant case, the State filed a habitual offender bill of information on September 20, 2012. Specifically, the underlying felony and prior convictions listed by the State included: (1) defendant’s conviction on August 21, 2012, in the Twenty-Fourth Judicial District Court, for aggravated incest, a violation of La. R.S. 14:78.1; (2) defendant’s guilty plea on December 15, 2005, in case 5:04 CR 02355-001 in the United States District Court, Southern District of Texas, to violating 8 USC 1324(a)(1)(A)(ii) and 1324(a)(l)(B)(i); (3) defendant’s guilty plea on August 13, 1992, in Orleans Parish Criminal District Court case number 357-272, to possession of cocaine and subsequent sentence as a habitual offender; and (4) defendant’s guilty plea on November 2, 1990, in the Twenty-Fourth Judicial District Court, case number 90-0334, for simple burglary, a violation of La. R.S. 14:62.

Defendant did not stipulate to the allegations in the habitual offender bill of information, and requested a habitual bill hearing. At the habitual bill hearing, the State presented evidence of defendant’s prior felony convictions. The following documents were admitted into evidence by the State without objection: (1) a certified copy of the trial transcript of defendant’s testimony at the instant trial 11figiven under oath, wherein he admitted to prior convictions for cocaine possession, burglary, and transportation of illegal aliens; (2) a certified copy of defendant’s 1990 conviction for simple burglary; (3) a certified conviction for defendant’s guilty plea on August 13, 1992, in Orleans Parish Criminal District Court case number 357-272, to possession of cocaine; (4) a copy of 8 USC, Section 1324; and (5) a letter from defendant’s probation officer regarding his federal conviction from the Southern District of Texas.

After the admission of the State’s exhibits, defendant, through counsel, argued that with respect to defendant’s federal conviction, the State had not introduced any colloquy or Boykin form acknowledging that defendant was properly advised of his rights. Similarly, on appeal, defendant asserts that the State failed to prove that his prior federal conviction was lawfully obtained.

For the defendant to receive an enhanced penalty under La. R.S. 15:529.1, the State must prove prior felony convictions and then prove the defendant is the same person who committed the prior felonies. State v. Blackwell, 377 So.2d 110 (La.1979); State v. Lanieux, 09-676 (La.App. 5 Cir. 3/9/10), 42 So.3d 979, 981, writ denied, 10-844 (La.11/12/10), 49 So.3d 886. Both the identity and the prior conviction alleged must be proven beyond a reasonable doubt. La. R.S. 15:529.1(D)(l)(b).

When the State relies on a prior conviction that is based on a guilty plea to prove defendant’s habitual offender status and defendant denies the habitual bill’s allegations, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779-80 (La.1993). If the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of |1fia procedural irregularity. Lanieux, supra. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. Id.

With respect to all of defendant’s prior felony convictions, including for his federal offense, the State offered the sworn testimony of defendant admitting the same, both during trial and during the habitual offender hearing. The trial court could properly take those admissions into account in finding that the State thus presented sufficient proof at the habitual offender hearing that defendant was the same person who had pled guilty to the predicate offenses. State v. Brown, 11-1656 (La.2/10/12), 82 So.3d 1232, 1234; State v. Jones, 332 So.2d 461, 462 (La.1976) (A trial judge may take judicial notice during habitual offender proceedings “of any prior proceeding which was a part of the same case he had previously tried.”) (internal quotation marks and citation omitted).

Prior to the habitual offender hearing, defendant also acknowledged that he was represented by counsel for his federal guilty plea, although he could not recall his attorney’s name. Further, without objection by defendant, the State offered into evidence a letter prepared by Probation Officer Rodney Douglas, stating that defendant was convicted in federal court on December 6, 2005, and recounting the sentence that defendant received. The letter stated that defendant was convicted on December 6, 2005, and was sentenced thereafter to 12 months and one day in the custody of the United States Bureau of Prisons, followed by a three-year term of supervised release. Attached to that letter was an uncertified copy of a Judgment from the United States District Court, Southern District of Texas, dated December 15, 2005, which indicated that defendant pled guilty to a violation of 8 U.S.C. 117sections 1324(a)(l)(A)(ii) and 1324(a)(l)(B)(i) in case 5:04CR02355-001 on January 19, 2005, and was represented by attorney Valeria Acevedo. The document bears the signature of United States District Judge, George P. Kazen.

The Habitual Offender Law, La. R.S. 15:529.1, does not require the State to use any specific type of evidence in order to carry its burden of proof. The defendant’s prior convictions may be proven by any competent evidence. State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, 1132.

Upon review, we find that the trial transcript admitting the federal conviction, the admission that he was represented by an attorney upon entering that guilty plea, and the letter from the probation officer and attached documents, were sufficient for the State to meet its initial burden under Shelton, supra. Thereafter, defendant failed to produce affirmative evidence of an infringement of his rights or of a procedural irregularity with respect to his federal conviction. Consequently, the burden never shifted back to the State to prove the constitutionality of the federal predicate plea. Lanieux, supra; State v. Payne, 40-46, 47 (La.App. 5 Cir. 1/26/11), 59 So.3d 1287. Accordingly, we find the trial court did not err in finding defendant to be a fourth felony offender.

For the foregoing reasons, we find defendant’s second assignment of error to be without merit.

ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request.

First, we note that although the commitment reflects that defendant was given an advisal regarding the time period for seeking post-conviction relief, the transcript indicates that the trial court failed to provide defendant with an advisal of |)8the time limitation provided in La.C.Cr.P. art. 930.8. The transcript prevails when there is a disci’epancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

It is well settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to La.C.Cr.P. art. 930.8, this Court may correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468. Accordingly, by means of this opinion, we inform defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. art. 914 or 922.

Next, when sentencing defendant as a habitual offender, the trial judge imposed a fine of $25,000.00. The habitual offender statute, La. R.S. 15:529.1, does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La.1991). Accordingly, defendant’s sentence is hereby amended to delete the fine. State v. Marshall, 45,567 (LaApp. 2 Cir. 9/22/10), 47 So.3d 1083, writ denied, 10-2411 (La.2/25/11), 58 So.3d 457. As amended, defendant’s sentence is hereby affirmed.

Finally, defendant was charged with and convicted of La. R.S. 14:78.1, aggravated incest, a “sex offense” as defined by La. R.S. 15:541, which necessitates registration under La. R.S. 15:540, et seq. However, the record indicates that the trial judge did not provide written notification of the registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A). Accordingly, this matter is remanded and the trial court is ordered to inform defendant of the | ^registration requirements of La. R.S. 15:542 by sending appropriate written notice to him within ten days of the rendition of this opinion, and to file written proof in the record that defendant has received such notice. State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1086.

CONCLUSION

For the foregoing reasons, defendant’s conviction of aggravated incest and his adjudication as a fourth felony offender are affirmed. Defendant’s sentence is amended to delete the fine, and his 75-year sentence is affirmed as amended. This matter is remanded to the trial court for the limited purpose of sending written notice of the registration requirements of La. R.S. 15:542 to defendant.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS

      . On February 19, 2013, the Judges of this Court adopted a policy wherein this Court, in its published work, observing the principle of protecting minor victims and victims of sexual offenses set forth in La. R.S. 46:1844(W)(3), will identify, by initials only, the victim and defendant or witnesses whose names can lead to the victim's identity, i.e., parent, sibling, or relative with the same last name as the victim. Compare State v. R.W.B., 12-453 (La.12/4/12), 105 So.3d 54.

      . Dr. Chau explained that the infant had poly-cystic kidney disease in both kidneys, an abnormal heart, and little lung development due to a lack of amniotic fluid. Dr. Chau stated that the infant's medical condition could be attributed, in part, to both parents sharing a "silent” or "recessive” gene for the disease. Each time that parents share similar DNA, the baby has a 25% risk of having the disease.

      . Defendant explained to the jury that he was “built like a race horse. If I’d have did [sic] anything to a twelve year old, she’d be walking with her legs in parenthesis for the rest of her life.”

      . 277 So.2d 126 (La.1973).

      . The State asked for and was given leave to amend the habitual offender bill of information on this charge from November 2, 1990 to November 27, 1990.

      . The State can also establish identity by having someone like a probation officer come in and testify from personal knowledge that the defendant is the same person he previously supervised after the prior conviction. See State v. DeSalvo, 98-353 (La.App. 5 Cir. 10/14/98), 721 So.2d 938, 942, writ denied, 98-2828 (La.2/26/99), 738 So.2d 1067 (parole officer’s testimony and identification of the defendant was deemed sufficient to prove identity).


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Cruz Daniel GUEVARA v. BRAND ENERGY & INFRASTRUCTURE SERVICES, INC.
    No. 13-CA-331.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Miguel A. Elias, Attorney at Law, Ken-ner, Louisiana, for Plaintiff/Appellee, Cruz Daniel Guevara.
    Charles J. Duhe, Jr., Heidel A. Schneider, Attorneys at Law, Baton Rouge, Louisiana, for Defendant/Appellant, Brand Services, L.L.C.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

12This is a workers’ compensation case in which the Office of Workers’ Compensation (“OWC”) judge ruled in favor of the claimant. The employer appeals. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On December 19, 2011, Cruz Daniel Guevara filed a Disputed Claim for Compensation against his former employer, Brand Services, L.L.C. (“Brand”). Guevara alleged that while building scaffolding on August 18, 2011, he fainted due to becoming overheated, which caused him to fall and injure his right knee. He alleged that his employer failed to authorize medical treatment and failed to pay indemnity benefits.

The case was tried over the course of four separate days between June 27 and August 7, 2012. Guevara testified at trial as follows: On the day of the accident the weather was hot, about 100 degrees. He was on the ground floor, carrying scaffolding materials (seven-foot and five-foot bars) and passing them to his coworkers. They needed to finish the scaffold as soon as possible, so they skipped the regular break time and continued building. They finished the scaffold about 9:45 a.m. The rest of the crew then took their breaks. Guevara said he |sstayed behind to clean the material left on the ground. It was about 10:00 a.m. He remembered carrying two seven-foot bars and that’s when he lost consciousness. He did not remember how he fell, but said he may have twisted his foot and fallen on his leg, and that’s how he twisted his knee. When asked whether he knew why he lost consciousness, he responded that it might have been because of the heat.

The site supervisor, Joseph Cangelosi, testified he saw Guevara sitting on an upturned bucket after break time had ended. Cangelosi went to find Guevara’s foreman to speak to Guevara. When they arrived back at the spot where Guevara had been sitting, they saw he had fallen off the bucket and was holding his side. Guevara was talking, but they could not understand him. Neither Cangelosi nor the foreman could speak Spanish. They lifted Guevara up and brought him to the office, where he was taken away in an ambulance.

Guevara was initially treated at Gulf South Occupational Medicine at 11:35 a.m. on the day of the accident. The history obtained from Guevara, through a translator, was that he was having left flank pain for two hours with increased intensity, with pain severe enough to make him unable to bear weight or walk. He had a history of three abdominal surgeries and kidney stones. Dr. James Bellone diagnosed hypoténsion, left flank pain secondary to history of nephrolithiasis, and abdominal pain to lower abdomen.

Guevara was then transferred to Baton Rouge General Hospital for further care. A CT scan revealed a stone in the left renal pelvis, but not obstructing, and dilated loops of bowel consistent with possible small bowl obstruction. While he was in the hospital, Dr. Sidney Ross performed a surgical consultation and recommended a trial of clear liquid for left renal stone, symptomatic, and partial small bowel obstruction.

|4Guevara was discharged from Baton Rouge General Hospital on August 21, 2011 with a diagnosis of a partial small bowel obstruction-resolved, non-obstructive nephrolithiasis, acute kidney injury, and back pain. The discharge summary states: “Upon admittance, the patient was also found to have acute kidney injury ... suspected to be mostly related to intravas-cular volume depletion due to poor hydration and loss of perspiration as patient had been working outside in the heat.” The discharge diagnosis by the treating physician does not mention that Guevara made any knee complaints during his admission at the hospital.

With respect to the dehydration, defense counsel cross-examined Guevara about the availability of water and Gatorade on the job site that day. Guevara said both water and Gatorade were freely available, and he drank both that morning.

Guevara testified he was not aware of the knee injury while in the hospital, because he was lying down the whole time. He said he did not get out of bed even to go to the bathroom. He did not notice a problem until he was being discharged from the hospital, and found he had problems walking. He asked for a wheelchair, but ended up walking out by holding on to his nephews, who had come to drive him home. He went to stay with his cousins in LaPlace, where he discovered the next morning that his right knee was very swollen and painful.

On September 6, 2011, Guevara sought medical treatment from Dr. José Veras Pola at Sunnyside Family Facility. The medical records indicate that Guevara complained of bilateral knee pain, soreness, swelling, and inability to stand longer than 20 minutes at a time. He reported a history of a stroke two years before, that since then he had been having pain all over the body, and that his knees had been worsening in the past few months. The report makes no reference to the work-related accident of August 18, 2011.

lsOn October 12, 2011, he was evaluated by Dr. Olga Perez at Daughters of Charity Medical Services. Guevara related a history of hypertension, stroke and renal failure, as well as knee pain for two years. He said he had been prescribed Lortab, but it gave him a “bad' reaction.” The physical examination revealed abnormality of the left knee. Dr. Perez diagnosed hypertension, renal disorder, and stroke syndrome.

Guevara returned to Dr. Perez on November 8, 2011. At that time, he complained of bilateral knee pain. Examination revealed swelling in the right knee. Dr. Perez diagnosed knee joint pain and increased blood pressure. Dr. Perez recommended an MRI of the right knee and prescribed pain medication.

On November 21, 2011 Guevara was evaluated by Dr. F. Alan Johnston, an orthopedic surgeon. He related a history of sustaining a stroke and falling, resulting in a four-day admission at Baton Rouge General Hospital, and a history of hypertension and kidney problems. He denied any prior injuries to his knees. Dr. Johnston diagnosed right knee strain and contusion, ruling out internal derangement. Dr. Johnston recommended an MRI of the right knee, administered an injection, recommended physical therapy and pain medication. The doctor also restricted Guevara from returning to work on scaffolds.

Dr. Johnston re-examined Guevara on January 4, 2012, after Guevara had undergone an MRI. During the examination, Guevara complained of right knee pain, but said that the previous injection offered some relief, and that he had undergone physical therapy. A review of the MRI revealed a frayed wisp of the remnant of the medial meniscus; loss of articular cartilage to the mediofemoral condyle and mediotibial plateau with accompanying os-teochondral defect; loss of cartilage to the patella; injury to the ACL as well as the MCL; knee effusion; and | ^popliteal cysts. Dr. Johnston stated that if no relief was obtained from the second injection, that Guevara would be a candidate for arthros-copy.

The OWC court took the matter under advisement and rendered judgment on November 20, 2012. The court found that Guevara was injured by accident during the course and scope of his employment on August 18, 2011; that he sustained dehydration, a back injury, and right knee injury; that he is entitled to temporary total disability benefits from August 18, 2011 through the present and continuing; and that Brand is liable for all medical expenses and transportation expenses for the dehydration, back injury, and right knee injury caused by the accident of August 18, 2011. Brand appeals.

ARGUMENTS

On appeal Brand makes the following assignments of error:

(1) The trial court erred in finding that Guevara was involved in a work-related accident on August 18, 2011.

Brand argues that based upon Guevara’s inconsistent testimony, the medical records from his healthcare providers, and the testimony of various co-workers, the trial court’s finding that Guevara was involved in a compensable work-related accident resulting in dehydration, back, and knee injuries was unreasonable; therefore, it was manifestly erroneous or clearly wrong, and should be reversed. Brand asserts Guevara provided inconsistent testimony as to whether he took a break on August 18, 2011, as well as what time he arrived and actually began work.

Further, Brand cites the testimony of supervisor Joe Cangelosi, who testified that he did not -witness Guevara performing any work that day and that his tools had not been unpacked and still remained in the back of the truck. Based on Cange-losi’s testimony, Brand asserts, Guevara could have performed at most 4517minutes of labor prior to his 15 minute break, and as he didn’t have possession of his tools, it is questionable that he performed any work that morning.

Brand further contends that Guevara’s medical history of prior kidney disease and his lack of complaints about being “overheated” establish the kidney episode was related to his pre-existing disease and was not triggered by any work-related incident. His discharge summary from Baton Rouge General listed a kidney stone and a small bowel obstruction, which Brand contends are not related to any work activity performed on August 18, 2011 and, therefore, is not a compensable injury. Furthermore, the emergency room physician’s notes documented that the claimant fell as a result of flank pain, so Brand argues there is no evidence to support that he fell as a result of being “overheated” while performing work-related activities.

A review of the testimony and evidence shows that the discrepancies upon which Brand relies to deny Guevara’s claim are minor and do not cast serious doubt upon Guevara’s version of the event. Guevara has claimed that he sustained his injury while picking up scaffolding materials which he stated took place at the scaffolding site, between 9:30 a.m. and 10:00 a.m. Joe Cangelosi testified that he and the foreman, Brandon Olah, helped Guevara get up from the ground, and brought him to the truck and transported him to Pax-ton Carlisle, the “safety man.” Cangelosi furthered testified that he saw Guevara after the 9:00 break sitting on a bucket. Remembering that the 9:00 a.m. break is fifteen minutes long and that Cangelosi saw Guevara right after that break sitting on a bucket, and that Cangelosi had to go find the foreman, a reasonable man could surmise, given the elapsed time after the 9:00 a.m. break, that the accident could have occurred between 9:30 a.m. and 10:00 a.m., as stated by Guevara. Guevara contends that |shis inability to remember the exact time the incident occurred is not a discrepancy that casts doubt on his version of events.

(2) The trial court erred in finding that Guevara sustained knee injury as a result of a work-related accident.

Brand asserts Guevara’s testimony is self-contradictory. He testified at trial that he first noticed knee pain on the day he left the hospital, and discovered the knee was swollen the day after leaving the hospital. In contrast, in his deposition he said he advised the hospital physician of the difficulties with his knee and was given pain medication for it. The hospital notes do not mention any knee problem nor any complaint of knee pain by Guevara. The notes also indicate that his walking was limited and his mobility slightly impaired.

Brand points out that Guevara first sought medical help for his knee more than two weeks after the accident, when he saw Dr. José Veras Pola on September 6, 2011. The records indicate Guevara complained of bilateral knee pain, soreness, swelling, and inability to stand for long. The notes do not mention any work-related accident; rather, the notes state Guevara reported a history of a stroke two years before and having pain all over his body since then, with the knees worsening in the past few months.

Brand points out further that Dr. Olga Perez stated that Guevara gave a history of hypertension, stroke and renal failure, as well as knee pain for two years. Dr. Perez diagnosed hypertension, renal disorder, and stroke syndrome. She noted on return visits that Guevara complained of increasing knee pain and she recommended he undergo an MRI. Her notes do not mention any work-related accident. Brand mentions further that Joe Cangelo-si, the job supervisor, testified he noticed that Guevara walked with a limp when he appeared for work on August 18, 2011.

|9In response, Guevara notes he testified that before the accident he was working, without any limitations from his knee. Further, Joe Cangelosi admitted that Guevara was fit to work on the day of the incident, without any limitations.

Guevara also points out, regarding mention of past complaints of knee pain, that he never made any prior claims for the knee, nor was there any mention of knee pain or knee complaints in the employment personnel file of his prior employer, Scaffolding Rentals. Guevara asserts that even if he suffered from occasional knee pain over the years, the fact remains that the precipitating incident for his current symptoms was the fall of August 18, 2011.

(3)In finding that Guevara sustained a back injury as a result of a work-related accident.

Brand asserts that Guevara did not testify at the trial that he suffered from a back injury as a result of the alleged fall on August 18, 2011. Furthermore, the medical records from Dr. José Veras Pola, Dr. Olga Perez, and Dr. F. Alan Johnston make no references to back pain. These physicians did not diagnose Guevara with a back injury, nor did they recommend any treatment for his back.

In response, Guevara contends it was within the judge’s wide and sound discretion after hearing the testimony to find that a back injury did occur. Alternatively, assuming that Guevara did not suffer a back injury, Guevara contends the consequences for Brand still remain the same, because Brand failed to reasonably controvert Guevara’s claim.

LAW AND ANALYSIS

In a workers’ compensation case, the employee bears the burden of proving that an accident occurred, that it occurred in the course and scope of his employment, that the accident caused his injury, and that the injury caused his | indisability. Gray v. H.B. Zachary Const. Co., 01-276, p. 6 (La.App. 5 Cir. 9/25/01), 798 So.2d 271, 274, writ denied, 2001-2847 (La.1/4/02), 805 So.2d 207.

The standard of review is whether the workers’ compensation judge was manifestly erroneous or clearly wrong in factual findings. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error, even in a finding based upon a credibility determination. Id.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 798 So.2d at 275.

“As a threshold requirement, a claimant in a workers’ compensation action must prove ‘personal injury by accident arising out of and in the course of his employment.’ ” Bourgeois v. Seabright Ins. Co., 12-834, p. 4 (La.App. 5 Cir. 4/10/13), 115 So.3d 50, 52.

“ ‘Accident’ means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive deterioration.” La. R.S. 23:1021(1). The claimant has the burden of establishing an accident by a ^preponderance of the evidence. Shaw v. Arc of St. Charles, 00-1193, p. 4 (La.App. 5 Cir. 11/28/00), 776 So.2d 542, 545.

A worker’s testimony alone may be sufficient to discharge his burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the accident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bourgeois, 12-834 at p. 5, 115 So.3d at 53.

An employee in a worker’s compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition. Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334.

There is a rebuttable presumption that a claimant’s disability is a result of his employment accident. Doucet v. Baker Hughes Prod. Tools, 93-3087 (La.03/11/94), 635 So.2d 166, 168.

A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition.

Hammond v. Fid. & Cas. Co. of New York, 419 So.2d 829, 831 (La.1982). This presumption is not conclusive; rather, it compels the defendant to rebut it with sufficient contrary evidence. Id.

The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee’s disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident.

Hammond, 419 So.2d at 832.

The statute on temporary total disability provides, “[CJompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment....” La. R.S. 23:1221(1)(C).

Here, the evidence established that the claimant, Guevara, was working on the morning of the alleged accident; he suffered an episode of faintness that caused him to fall off the bucket on which he was sitting; he was taken to a hospital and spent several days there, being treated for dehydration and kidney problems; and he did not notice his knee injury until he was being discharged from the hospital.

Guevara had experienced soreness in both knees previously, but it was minimal and was alleviated with Tylenol. This knee injury, however, is much more painful, has continued to be symptomatic, and his treating orthopedist has said he cannot return to work.

Guevara had pre-existing kidney disease. He has apparently recovered from the dehydration and kidney problems he experienced on August 18, 2011.

Guevara is entitled to the rebuttable presumption that his disability resulted from the work accident. In particular, testimony from Guevara, as well as his cousin, Xiomara Lujan, established that before the accident Guevara was in good health and capable of performing the essential functions of his employment with Brand. There were no employment records of any claims made by Guevara at any point in his employment history, other than to make a reference to the doctor when taking the medical history. It is clear that Guevara began having symptoms of a |1sdisabling knee condition as soon as he was able to orient himself after the work accident of August 18, 2011. A review of all medical records and employment records indicate that the disabling condition manifested itself for the first time after the fall on August 18, 2011.

Reviewing the evidence in light of the law, we find the trial court did not err in finding the knee injury was related to Guevara’s on-the-job accident that day. The Office of Workers’ Compensation judge believed Guevara’s testimony that he did not notice the knee injury until his discharge from Baton Rouge General because he was lying in the bed during his entire stay. As a credibility determination, we do not find the court was clearly wrong in finding Guevara entitled to benefits for the knee injury.

As to the back pain, however, we find the Office of Workers’ Compensation judge was clearly wrong in awarding benefits for back injury. There is no evidence of spinal involvement, and none of the physicians treated Guevara for back pain, or made recommendations for future treatment for back problems. The judge erred in finding that claimant sustained a back injury on August 18, 2011.

DECREE

For the foregoing reasons, we affirm the judgment with respect to the claim for knee injury, but we reverse with respect to the claim for back injury. The parties are cast with their own costs for this appeal.

AFFIRMED IN PART AND REVERSED IN PART.

      . On the Disputed Claim form that initiated these proceedings, Guevara gave the employer’s name as Brand Energy & Infrastructure Services, Inc. In response to the claim, however, the employer appears under the name Brand Services, L.L.C.