author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Jimmy Joseph YATES, Appellant.
    No. 44,391-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 2009.
    Rehearing Denied Aug. 13, 2009.

      Louisiana Appellate Project by William Jarred Franklin, for Appellant.
    Jimmy Joseph Yates, Pro Se.
    Charles Rex Scott, II, District Attorney, Catherine Marion Estopinal, R. Bennett Langford, III, F. Stanton Hardee, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

[ iJimmy Joseph Yates was charged by bill of information and convicted at jury trial for the crime of indecent behavior with juveniles, a violation of La. R.S. 14:81(A)(2). He was fined $1,000 and sentenced to five years at hard labor, all but three years suspended, with three years of probation. Motions for post-verdict judgment of acquittal and to reconsider sentence were filed and denied. We affirm.

FACTS

This case arises from a sting operation by the Northwest Louisiana Internet Crimes Against Children Task Force. In February 2007, Task Force Detective Robert Greer logged onto an internet “romance” chat room, pretending to be a 15-year-old girl named “Lori Poff.” Yates soon indicated he wanted to talk to Lori.

The conversation turned sexual, and clearly was conducted in violation of the statute.

The state’s first witness at trial was Caddo Parish Sheriffs Office Det. Greer, who testified about how the operation was set up and about his conversation with Yates. Based on the conversation and other information obtained through the operation, a search warrant was obtained for Yates’ house on Marquette Street in Shreveport. The search yielded computer equipment, CDs, diskettes, and some pornographic magazines. Photographs were taken during the search and were introduced into evidence.

Greer explained that he became alarmed when Yates indicated he worked at Rutherford House (a halfway house program for troubled teens). Once Yates had indicated that he would like to meet, Greer tried to set up a |2meeting location. Yates tided to place a voice call to Greer over the computer, but Greer indicated there was no microphone on his computer and asked if Yates wanted him to call him. When Yates responded affirmatively, Greer requested that Officer Nicole Mitts, a female, call the defendant. Deputy Mitts testified that:

• in the phone conversation with Yates they were “trying to figure out if we were going to meet” and that Yates “got a little hesitant about it”;

• she (Mitts) was present when Yates was arrested and she recognized Yates’ voice when he was arrested as the same man she spoke to on the phone when she was playing the role of a 15-year-old girl;

• she identified the defendant in the courtroom;

• after Yates was Mirandized, he said he did not remember Mitts’ voice and asked her if he had said anything inappropriate to her while on the phone.

Immediately after Mitts’ testimony, and outside the presence of the jury, Yates indicated that he did not approve of the way his counsel, Sarah Giddens, was representing him and wanted to represent himself. Judge Garrett had Yates sworn in and asked him his age and his education. She then asked him to explain why he thought he wanted to waive his constitutional right to counsel. Defendant responded that there had been “a considerable difference of opinion” between him and Giddens and that, “It all boils down to Mr. Greer.... I mean, I’m sure she did her job sufficiently, but she didn’t do it in a way I would have done it or liked to have it done.” Judge Garrett asked him what he thought he wanted to do about it, and he responded by asking if he could cross-examine Greer. | Judge Garrett asked if he had any legal training and if he understood anything about evidentiary rules or procedure. He answered in the negative. Judge Gari'ett then noted that the law required her to explain the disadvantages of self-representation, and indicated she was not going to stop the trial and start over as it would be disruptive in the eyes of the jury. She noted that if Yates decided to represent himself, he would have to comply with the rules of evidence and procedure.

She also asked Yates if it would be helpful to take a break so that he could consult with his attorney on the matters he would like addressed with Greer. He responded that Giddens had not spoken to him since the first break and that the court might ask her if she was willing to talk anymore. Judge Garrett again asked if Yates wanted to take a break to consult with counsel, and then asked Giddens if she thought that would be beneficial. Gid-dens responded that she was fine with having another conversation with Yates, but, without getting into it, based on what she believed Yates wanted her to do, she would not do it. She stated that Yates did not find that what she did was cross-examining Greer, but coddling him. Judge Garrett then again asked Yates if he wanted to represent himself, and indicated that if he wanted to she was going to allow it and would appoint Giddens as standby counsel. Yates eventually decided that he did not want to represent himself. He agreed to be represented by counsel.

District Attorney’s Investigator Mark Fargerson was then qualified as an expert in forensic computer analysis. He testified about the analysis he performed on Yates’ computer hard drive, which revealed that:

1his analysis corroborated that the particular internet chat room involved had been accessed from Yates’ computer;

• there were at least 39 entries related to the name “Lori Poff;” and

• pornographic pictures were reposited on the computer, as well as pictures of young girls.

The state then called Detective Paula Moreno, a sex crimes investigator for the Shreveport Police Department, who testified that she had been involved in a previous investigation of Yates for possession of child pornography, but that case was dismissed because a witness had moved out of state.

The only witness for the defense was Yates, who testified that:

• he had been employed at Rutherford House for about two years, maintaining a fleet of vans and teaching a vocational class;

• he chatted on the internet and considered the chat rooms as “an alternate life or a fantasy life, or whatever”;

• to visit a Yahoo! chat room (like the one in this case), visitors have to say that they are 18 years old;

• he occasionally met people in person that he had chatted with online after long conversations and usually a phone call;

• he admitted his conversation online with “Lori,” but stated he decided not to go through with a meeting;

• he denied that he believed that “Lori” was a real 15-year-old girl;

• the most common lies in chat rooms were about age and weight;

• he asked during the conversation if Lori was a cop; and

• he thought the communication was a “cop joke” and a setup.

The jury unanimously found Yates guilty of indecent behavior with juveniles. A motion for post-verdict judgment of acquittal was denied. A PSI was ordered. At Yates’ sentencing hearing, the court indicated that:

15* it had reviewed the PSI report;

• this was Yates’ first felony conviction;

• he had a prior arrest for allegedly having child pornography on his computer, which was dismissed after a motion to suppress was granted;

• the jury obviously did not believe defendant’s testimony about believing that his conversation was a fantasy, and all participants had to be 18;

• Yates’ employment at Rutherford House was a troubling factor; and

• pornographic pictures were seized from Yates’ computer which the court thought in some instances bordered on child pornography.

The court sentenced Yates to five years at hard labor, with all but three years suspended, with credit for time served. The court stated that when Yates was released from incarceration he would go on probation, that he had to register as a sex offender, and that he could not work around minors. The court stated that as special conditions of probation Yates could no longer own and use a computer.

The court also stated, later in the hearing, that, “The period of his probation would be — it is my intent that he serve three years on probation when he is eventually released from incarceration. Does that clarify it for the minutes?”

DISCUSSION

Sufficiency

In this assignment, Yates argues that he relied on the limitation that persons in the chat room were 18 years of age, that he considered the chat room to be for fantasy role-playing, and that he assumed “Lori Poff” was actually an adult playing a role. He argues that given the age limitation on |fithe chat room, it was net reasonable for him to believe he was chatting with a minor. He does not argue about sufficiency with respect to any of the other elements of the crime.

The state asserts that the jury was neither naive nor ignorant, and that the evidence was more than sufficient to support the jury’s verdict.

Our law on sufficiency is well settled.

The provisions of La. R.S. 14:81(A) state, in pertinent part:

Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(2) The transmission of an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

In the instant case, the jury rejected Yates’ self-serving testimony |7about his belief as to the age of the person with whom he was communicating. While persons using the chat room were supposed to be 18 years old or over, anyone could log on, and Yates made statements in his conversation with “Lori” that indicated he believed the person with whom he was communicating was 15 years old. The jury made a credibility determination and weighed the evidence as to whether Yates reasonably believed he was communicating with a 15-year-old. The jury’s decision was within the bounds of rationality and should not be disturbed.

Excessiveness

Yates asserts that the trial court failed to adequately consider the factors of La. C. Cr. P. art. 894.1. He argues that the lack of prior convictions indicates the potential for rehabilitation. He points out that there was no physical injury to any person and that there was no physical contact that could have led to injury. He asserts that the cost of incarcerating him far outweighs any positive effects of incarceration and that the sentence imposed is nothing more than the needless imposition of pain and suffering, serving no rehabilitative purpose.

The state points to the trial court’s wide discretion in sentencing, notes the prior incident involving child pornography, and argues that the sentence does not shock the sense of justice and was not an abuse of discretion.

Our law on excessiveness is well settled.

|,sYates could have received up to seven years at hard labor and a $5,000 fine; he effectively received three years’ imprisonment and a $1,000 fine. The trial court thoroughly reviewed a PSI before imposing sentence. It was aware of his prior arrest involving child pornography and noted that some of the pictures retrieved from Yates’ computer bordered on child pornography. Yates’ argument that there was no physical injury to any person is immaterial.

In this matter, where the defendant received a midrange sentence and |9had a record that involved an arrest for child pornography, the record shows that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. This record clearly shows a sound factual basis for the sentence imposed, and the sentence does not shock the sense of justice.

Ineffectiveness and Self-Representation

Yates asserts that his trial counsel’s representation was so deficient that at one point in the proceedings he sought to represent himself, that counsel refused to vigorously cross-examine Detective Greer, and that it is reasonable to believe he should have been allowed to either represent himself or seek other counsel. He also asserts that the court “denied time for any reasonable conclusions to be reached between him and counsel.”

Our law on ineffectiveness and self-representation is well settled.

|10In arguing ineffective assistance, the defendant does not specifically point out anything other than counsel’s alleged refusal to vigorously cross-examine, and he does not indicate the matters on which counsel should have pressed Det. Greer.

The trial court followed the law in warning Yates about the dangers of self-representation. The court gave him a choice as to whether to represent himself, and provided him every opportunity to confer with his lawyer. The court advised him that she would allow self-representation with Giddens as standby counsel. The defendant declined the offer and Involuntarily continued with representation. We perceive no error.

Speedy Trial

Yates begins this assignment of error by citing the United States and Louisiana Constitutions for the right to speedy trial. He then asserts that he filed a -pro se motion for speedy trial on October 10, 2007. He cites La. C. Cr. P. art. 701(F) for the proposition that a motion for a speedy trial not verified by the affidavit of counsel shall be set for contradictory hearing within 30 days. He asserts that no contradictory hearing was held within 30 days, and that on November 9, 2007, he filed another motion for speedy trial that was ignored by the court. He concludes by citing the familiar test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), but then says no more. Thus, it would appear that this assignment of error basically asserts the statutory speedy trial right because the only facts argued concern Article 701.

The minutes of court indicate that Yates came before the court for preliminary examination on May 8, 2007, and the court ruled the state had shown probable cause; the bill of information was filed, and Yates waived arraignment and pled not guilty. The trial later was set for September 24, 2007. On that date the trial was reset for October 22, 2007. On October 10, 2007, Yates filed a motion for speedy trial in proper person. On October 22, 2007, he appeared in court with his attorney and the trial was reset for December 3, 2007. On November 9, 2007, Yates filed another motion for speedy trial in proper person. The trial date was continued two more times before Yates, through his attorney, filed a motion for speedy trial on 112Pecember 7, 2007. That motion stated that the defendant gave notice that he wished to proceed to trial at the earliest possible date, thus availing defendant of his right to speedy trial under La. C. Cr. P. art. 701. On February 13, 2008, the matter was reset for trial on March 31, 2008, and the case was taken up on that date.

Our law on speedy trials is well settled.

|13There is no constitutional violation here. The trial commenced well within the two-year limitation; Yates was arrested on March 19, 2007, and | uthe case was taken up for trial on March 31, 2008. Furthermore, he has alleged no prejudice.

As for the alleged statutory violation, now that Yates has been tried and convicted, his allegation that Article 701 has been violated is moot.

Clarification of Sentence

Yates points out that he was sentenced to five years at hard labor, all but three suspended, with credit for time served, and also was sentenced to serve three years on probation. He argues that when “totalized,” the sentence is a six-year sentence instead of the five-year sentence imposed by the court. He then states, “As it is omitted from the record, the sentence imposed by the Court was two (2) years at hard labor and three (3) years probation, therefore the total is a five (5) year sentence.”

La. C. Cr. P. art. 893 allows the court, after a first or second conviction of a non-capital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation and parole. The probationary period shall be specified and not be less than one year nor more than five years. In State v. Diaz, 615 So.2d 1336 (La.1993), after conviction of second degree battery, the defendant was sentenced to serve five years at hard labor (the maximum sentence). The sentence was suspended, and defendant was placed on probation with several conditions, including a term of one year in the parish jail and payment of “full and complete restitution” to the victim. The supreme court held that a district court may not impose a suspended sentence and require 115the defendant to spend additional time in jail as a condition of probation if the overall effect of the sentence is to expose the defendant to a greater term of imprisonment than provided by the statute he violated.

In State v. Payne, 633 So.2d 701 (La.App. 1st Cir.1993), the defendant was convicted of five counts of indecent behavior with a juvenile and received five concurrent sentences of seven years at hard labor. The trial court suspended five years of each sentence and placed the defendant on probation for four years. The defendant argued that when a sentence includes a combination of jail time and probation, the two periods must be added together for the total amount of probation time; thus, defendant argued that the sentence illegally put him on probation for six years. However, the court found that the trial court did not impose the two years of imprisonment as a condition of probation, and the imprisonment therefore was not added to the four-year term of probation; thus, the sentence was not illegal.

In this case, Yates’ serving of three years’ imprisonment was not a condition of probation. Thus, as in Payne, supra, the two terms are not added together, and even if they were, the total of five years would not exceed the maximum of five years of probation set by Article 893. Nor is this a case like Diaz because even if the jail time were a condition of probation, the total of five years would not exceed the seven-year maximum penalty for the crime. Furthermore, there is nothing in the law that requires the combination of unsuspended imprisonment plus probation to equal the total number of years of imprisonment given. í

| |6Further, when Yates filed a motion to reconsider sentence in June 2008, it stated in part that he was sentenced “to five (5) years at hard labor, all but three suspended and placed on three years active supervised probation.” This motion was filed by Yates’ counsel — thus showing counsel understood the term of probation in the sentence — and Judge Garrett denied the motion without disagreeing in any way with the motion’s statement as to the term of probation in the sentence. Thus, it would not appear that there was any misunderstanding about the sentence that would require any clarification.

DECREE

For the reasons set forth above, the defendant’s conviction and sentence should be AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The call was recorded and was played for the jury at trial.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessaiy to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.
      Second, a sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bon anno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v.

        Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 08-0175 (La.6/20/08), 983 So.2d 1272; State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 06-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App.2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779.

      . As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). See also State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel's deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.
      The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A waiver of counsel, in order that an accused may enter into pro se representation, must be clear and unequivocal. Id.; State v. Hegwood, 345 So.2d 1179 (La.1977). In order to be valid, a waiver of the right to counsel by a defendant must be made knowingly, understandingly and intelligently. Faretta, supra. Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that “he knows what he is doing and his choice is made with eyes open.'' Faretta, supra, citing Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).
      Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether the defendant has waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980); State v. Turner, 37,162 (La.App.2d Cir.10/29/03), 859 So.2d 911, writ denied, 03-3400 (La.3/26/04) 871 So.2d 347; State v. Flanagan, 32,535 (La.App.2d Cir. 10/29/99), 744 So.2d 718. The determination of whether defendant knowingly and voluntarily waived his right to counsel depends on the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980).
      A defendant who waits until after the commencement of trial to assert for the first time his right to represent himself, after having acquiesced in representation by an attorney throughout pretrial procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interests overbalances the potential disruption of the proceeding already in progress. State v. Heg

        wood, supra; State v. Lee, 39,969 (La.App.2d Cir.8/17/05), 909 So.2d 672.

      . There are two separate and distinct bases for a defendant's right to a speedy trial: a statutory right granted by La. C. Cr. P. art. 701 and a constitutional right embodied in the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Louisiana Constitution of 1974. The two are not equivalent. State v. Leonard, 499 So.2d 585 (La.App. 2d Cir.1986); State v. Price, 96-680 (La.App. 5th Cir.02/25/97), 690 So.2d 191.
      La. C. Cr. P. art. 701 provides:
      A. The state and the defendant have the right to a speedy trial.
      B. The time period for filing a bill of information or indictment after arrest shall be as follows:
      (1)(a) When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty-five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.
      (b) When the defendant is continued in custody subsequent to an arrest, an indictment shall be filed within one hundred twenty days of the arrest if the defendant is being held for a felony for which the punishment may be death or life imprisonment.
      (2) When the defendant is not continued in custody subsequent to arrest, an indictment or information shall be filed within ninety days of the arrest if the defendant is booked with a misdemeanor and one hundred fifty days of the arrest if the defendant is booked with a felony.
      Failure to institute prosecution as provided in Subparagraph (1) shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for the failure is not shown. If just cause is shown, the court shall reconsider bail for the defendant. Failure to institute prosecution as provided in Subparagraph (2) shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.
      C. Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.
      D. (1) A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit by defendant's counsel certifying that the defendant and his counsel are prepared to proceed to trial within the delays set forth in this Article. After the filing of a motion for a speedy trial by the defendant and his counsel the time period for commencement of trial shall be as follows:
      (a) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.
      (b) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody.
      (2) Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.
      E. “Just cause” as used in this Article shall include any grounds beyond the control of the State or the Court.
      F. A motion for a speedy trial filed by the defendant, but not verified by the affidavit of his counsel, shall be set for contradictory hearing within thirty days.
      Article 701 provides that the sole remedy for failure to commence trial within the mandated time period is pretrial release without bail; once a defendant has been tried and convicted, his allegation that article 701 has been violated becomes moot. State v. Mack, 37,174 (La.App.2d Cir.6/27/03), 850 So.2d 1035; State v. Hebert, 29,062 (La.App.2d Cir.01/22/97), 688 So.2d 612; State v. Outley, 629 So.2d 1243 (La.App. 2d Cir.1993), writ denied, 94-0410 (La.05/20/94), 637 So.2d 476; State v. Johnston, 480 So.2d 823 (La.App. 2d Cir.1985).
      Turning to the constitutional right to speedy trial, the right is fundamental and is guaranteed to the accused. La. Const, art. I, § 16; U.S. Const. Sixth and Fourteenth Amendments; Barker v. Wingo, supra. The right attaches when an individual becomes an accused, either by formal indictment or bill of information or arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981). Louisiana has adopted the balancing test of Barker v. Wingo, supra, in which the conduct of both the prosecution and the defendant are weighed. The four factors to be considered are: 1) length of delay; 2) reason for the delay; 3) the defendant's assertion of his right, and 4) prejudice to the defendant, such as the possible impairment of the presentation of the accused’s defense. Barker v. Wingo, supra; State v. James, 394 So.2d 1197 (La.1981); State v. Johnston, supra.

      For noncapital felony cases, the state must commence trial within two years from the date of institution of prosecution. La. C. Cr. P. art. 578(2); State v. McDonald, 30,854 (La.App.2d Cir.8/19/98), 718 So.2d 542; State v. Harris, 29,574 (La.App.2d Cir.5/7/97), 694 So.2d 626. A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. When the defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284; State v. Caston, 26,415 (La.App.2d Cir. 10/26/94), 645 So.2d 1202, writ denied, 94-3137 (La.5/5/95), 654 So.2d 337.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Karla TEUTSCH, Plaintiff-Appellee, v. Richard R. CORDELL, Jr., Defendant-Appellant.
    No. 44,565-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 2009.
    Rehearing Denied Aug. 5, 2009.

      Cynthia L. Carroll, for Appellant.
    D. Rex Anglin, Shreveport, for Appellee, Karla Teutsch.
    Joseph C. Seyler, Baton Rouge, for Ap-pellee, S.K.C.
    Before BROWN, WILLIAMS and PEATROSS, JJ.
   WILLIAMS, J.

11The defendant, Richard R. Cordell, Jr., appeals a juvenile court judgment issuing an order of protection from abuse, which, inter alia, prohibits him from having any visitation or contact with his ten year-old daughter until she reaches her eighteenth birthday, or until further order of the court. The defendant was ordered to seek professional counseling for “sexual perpetrator evaluation and treatment.” Temporary custody of the child was granted to the petitioner, Karla Teutsch, who was ordered to obtain “sexual abuse counseling” for the child and to assure that “the child has no contact whatsoever with the defendant.” For the reasons set forth herein, we affirm the trial court’s judgment.

FACTS

The petitioner, Karla Teutsch, and the defendant, Richard R. Cordell, Jr., are the parents of S.K.C. The petitioner and the defendant were divorced in 2001, and joint custody was awarded to both parents. The custody arrangement was as follows: the petitioner was granted the domicilliary custody of S.K.C.; during the school year, the defendant had visitation with S.K.C. every Wednesday and every other weekend; during the summer months, S.K.C. spent alternate weeks with each parent.

On December 2, 2008, the petitioner filed a petition for protection from abuse on behalf of S.K.C., pursuant to LSA-Ch.C. art. 1564, et seq. The petitioner alleged that S.K.C. had reported to her that “her father was |2touching her and making her sleep in the same bed as him when she stays with him.” The petitioner requested temporary custody of S.K.C. and a temporary restraining order (“TRO”) forbidding the defendant from having contact with S.K.C.

On December 11, 2008, S.K.C. was interviewed at the Pine Hill Advocacy Center. During the interview, S.K.C. stated that she slept in the bed with the defendant when she visited him and that the defendant slept in “his underwear, sometimes only his boxer shorts.” S.K.C. also stated that the defendant had begun touching her buttocks and breast area while in bed with her, and she wanted the touching to stop.

A TRO was issued on December 12, 2008, prohibiting the defendant from having contact with S.K.C. A hearing on the protective order was held on February 4, 2009.

During the hearing, the petitioner testified that S.K.C. informed her of the touching for the first time on Thanksgiving Day in 2008. She stated that she contacted Child Protective Services, and a worker advised her to file a petition for protection from abuse. The petitioner also testified that S.K.C. had reported that the defendant had “touched her butt again” during a supervised visit at S.KC.’s birthday party after the TRO was issued. The petitioner stated S.K.C. did not want to continue to visit with the defendant “if that was going to continue to happen.” The petitioner further testified |3that she was aware that S.K.C. slept in the same bed as the defendant during the visits. The petitioner stated that she had voiced an objection to the sleeping arrangements “on several different occasions.” She also stated that during an unrelated proceeding, a family court judge had addressed the issue of S.KC.’s sleeping arrangements during visits with the defendant. The petitioner testified that the judge had told the defendant “that he needed to make other arrangements for [S.K.C.]” and instructed him “not to sleep in the same bed with her.”

Richard Cordell, Sr., the defendant’s father, also testified. Mr. Cordell testified that on several occasions, he had “recommended to [S.K.C.] that we would make accommodations for her to have her own bedroom by herself, and [the defendant] was there listening....” Mr. Cordell stated that S.K.C. had never received her own bedroom or bed because “she prefers to sleep with her daddy.” Mr. Cordell testified that the defendant and S.K.C. kept the bedroom door open and that he had never seen the defendant touch S.K.C. on her buttocks or breast area. With regard to the allegation of inappropriate touching at the birthday party after the TRO was issued, Mr. Cordell testified that he was within sight and sound of the defendant at all times, and he never saw the defendant touch S.KC.’s buttocks.

Mary Cordell, the defendant’s mother, testified that she was in attendance at the birthday party at which the new allegations of abuse took place. She stated that she was taking pictures and did not see the defendant |4touch S.K.C. on the buttocks. Mrs. Cordell also testified that she had suggested that S.K.C. be given her own bedroom on several occasions, but S.K.C. “wanted to sleep with her daddy.” She stated that she and her husband thought that S.K.C. was “getting a little too old” to be sleeping with the defendant.

At the hearing, the defendant first testified on cross-examination. He admitted that he slept in the bed with S.K.C. when she visited and that he had been doing so since he and the petitioner separated. The defendant testified that he lived with his parents in a house with three bedrooms; one bedroom was occupied by his mother; one bedroom was occupied by his father; one bedroom was occupied by him. The defendant admitted that a family court judge had told him that he “might get [S.K.C.] her own bed.” However, the defendant stated that he did not agree with the judge’s comment and he did not view the statement as an order, but as “a mere suggestion.” The defendant also admitted that his mother had “suggested” to him that his daughter should not be sleeping in the bed with him, but he had not changed the arrangement because he “left that up to [S.K.C.]’s decision.” The defendant testified that he “thought she was still of the age that it [sleeping together] was okay.” The defendant stated that he did not think anything was wrong with sleeping in the same bed with his daughter. However, he stated that he knew that there was a time when sleeping with S.K.C. would no longer be appropriate, but he believed that age was “eleven, twelve, thirteen.” The defendant corroborated S.KC.’s statements |swith regard to his sleeping attire. He stated that he typically slept in “boxer shorts and a shirt,” but at times, he slept in only the boxer shorts. The defendant admitted that he had touched S.KC.’s breast area and buttocks, but “never in an inappropriate manner” and “never in a sexual way.” He stated that any touching was “accidental” or may have occurred when he was “wrestling” with her in his bed. The defendant testified that he did not see anything wrong with “wrestling” with his daughter in bed, and he did not believe that such horseplay between him and his daughter should take place somewhere other than the bed. The defendant testified that S.K.C. was “honest,” but stated that she was “lying” about any inappropriate touching because her “mother put her up to it.”

When questioned by the court with regard to what would constitute an “appropriate” touching of his daughters breast area, the defendant responded, “Like if you’re driving in the car, and she’s in the front seat, you slam on the brakes, you touch like that.” The colloquy continued as follows:

COURT: You’re saying that was what she was talking about when she went to the trouble of going to law enforcement officers, sitting down in front of a stranger and in an almost tearful fashion made these allegations against you? Was she talking about your putting your arm out in front of her to prevent her from hitting the dashboard.
WITNESS: I haven’t ever seen the video.
COURT: Do you think your child is so confused and so immature that she would make that kind of mistake?
WITNESS: I think she’s very confused.
| (;COURT: That she would confuse you putting your arm out to protect her from hitting the dashboard and accidentally brushing her breasts in the bed [while dressed in] your boxer shorts or fondling her breasts.
WITNESS: No, I don’t believe that.
COURT: I don’t think so either, so I’m looking for an explanation.
WITNESS: We’ve never had any trouble until I filed for more custody. To me, in my heart that’s—
COURT: Sir, we’re focusing on the child. How would she confuse what you describe as your admitted appropriate touching of her breasts with what she almost tearfully described as a sexual fondling that she wanted to stop, that she asked you to stop, that she says you continue to do despite her requests to stop [while] in bed with your boxer shorts on, and that you wouldn’t stop and kept doing it, and she wanted that behavior to stop? Now, how is that related to sticking your arm and preventing her from getting hit by a dashboard?

WITNESS: It’s not.

During his dii’ect testimony, the defendant stated that he did not recall ever touching S.K.C.’s buttocks or breast area. He reiterated that if he did touch her in those areas, it was “not in an inappropriate manner ... never in any type of sexual way.” The defendant stated that any touching was “innocent” and that S.K.C. had never told him that she was “uncomfortable with the way [he] touched her.”

S.K.C. also testified at the hearing. She testified that she could not recall when the touching started, but “it started one night when we went to bed.” S.K.C. stated that the defendant touched her “on my butt” and |-/‘squeezed my butt.” She testified that at the birthday party at issue, the defendant “placed his hand on my butt ... and he touched it and he grabbed me and pulled me close to him.” S.K.C. was unable to recall the statements she made to the interviewer with regard to the touching of her breast area. However, she testified as follows:

Q: [C]an you remember the last time he touched your breast? Or not the time but the last wherever you were when it happened?
It was in bed and I was in front of him and he took his hand and he reached over me.
So, were you sitting on the bed? <y
I was lying down. <J
Okay. And, I guess — was he lying down also? cy
Yes, ma’am. <d
And he stretched his hand across and it landed on your breast? <y
Yes, ma’am. <j
Okay. Did it stay there? &
A: Uh, it did but not a very long period of time.
Q: Okay. What kind of touch was it?
A: I guess it was like a feel.

5.K.C. also testified about an incident during which the defendant touched her breast area while she was walking her friend’s dog. She stated, “He just — I guess it was like a hug type of thing and he touched my breast.” S.K.C. testified that the defendant had not always touched her in that manner and the touching was “something new.” She stated that whenever the defendant would touch her buttocks, she would remove his hand and tell him to “please stop.” S.K.C. testified that the touching continued, so “[Tjhat’s when I told my mama on Thanksgiving.”

The court also heard the testimony of Melissa Bass, the defendant’s friend who hosted the birthday party. Ms. Bass testified she did not recall |sobserving the defendant touching S.HC.’s “butt” at the party. Ms. Bass also testified that there was never an occasion that S.K.C. walked her dog. On cross-examination, Ms. Bass admitted that the defendant and S.K.C. had stayed at her house while she was away, and she was unable to say whether they had walked the dogs on those occasions.

Ja’Les Washington, the DSS employee who filed the instanter order, also testified. She stated that her office’s investigation into the allegations continued after she filed the order, and there was no information contained in her petition to the court that she would recant. Ms. Washington also testified that she had spoken with S.K.C. since she filed the petition, and S.K.C. had not recanted her statements.

At the conclusion of the testimony, the court stated, “This is a child in need of care because of sexual abuse.” The court issued a protective order, prohibiting the defendant from visiting or communicating with S.K.C. The | S)court fixed the order of protection to remain in effect until S.K.C.’s eighteenth birthday, pursuant to LSA-Ch.C. arts. 618 and 1564. The court also granted temporary custody of the child to the petitioner, Karla Teutsch, and ordered her to obtain “sexual abuse counseling” for the child and to assure that “the child has no contact whatsoever with the defendant.” The court further ordered the defendant to seek professional counseling for “sexual perpetrator evaluation and treatment.” The court stated:

The child’s testimony completely supports her earlier ... statement — completely removing any hint, any hint that the mother is quote, “putting her up to this.” The child testified extremely convincingly that she started the conversation much to her own chagrin. She initiated the conversation bringing her mother to tears on Thanksgiving and on a couple of weeks later when she told her mother sometime later and more fully developed the nature of the offensive touching. She wasn’t put up to that.
There are at least three, maybe four, reasons specifically that I am convinced this was not accidental touching but sexual fondling; and in fact, what it is is grooming behavior.
It starts off with sleeping with a child, innocent at first.... And then we get down to the point where we’re wearing less and less clothing and we get to the point where the child’s getting older and older and starting to develop but we still continue that sleeping behavior despite what a judge may say. Despite what a person’s own parents may say. We continue to do it because we have a plan. We have a goal. And that goal is to develop an illicit sexual partner and it starts at this stage as it creeps along. It starts out innocently ... and then you jump that bridge and you make that offensive touching and you hope that child may enjoy that or at least not put up a fuss. And then you go on to the next [ iqstage and the next stage. That’s what it is. That’s what the professionals tell us it is. And I believe that’s what it is.
She made the statement no one else had ever touched her like that. No one else had accidently touched her like that in her ten years of life, but the father did it in bed. Sound kind of strange? Sounds kind of strange to me.
“Don’t.” “Stop.” But he continues. He does it again. Accident after accident. No, that’s not accident [sic]. That’s purposeful grooming behavior.
And it was something that just started a few weeks ago. This was a quote to [sic] her, “Something new.” She’d been raised by this parent and had been in close proximity to him for an extended period of time and she’d never complained about accidental touching before. Suddenly, something new is happening. She’s lying in bed and her daddy’s touching her breasts and her buttocks and keeping his hand there even though she says no. That’s not accidental. That’s something new. Four reasons. Clearly not accidental and she clearly wasn’t put up to it by her mother as I described. And it is a swearing contest between the two and there’s no difficulty whatsoever in whom I believe. I believe the child for the reasons I’ve stated. And I won’t allow that grooming behavior to continue and he’s going to get treatment before he has visitation and she’s going to get counseling.
* * *
The defendant now appeals.

DISCUSSION

The defendant contends the evidence failed to establish that S.K.C. was sexually abused. The defendant argues S.K.C. was “fidgety” during the interview at Pine Hills and did not make eye contact when she was questioned about the alleged touching. He also argues that S.K.C. “was not distraught” during the interview and showed no signs of having been sexually abused. The defendant also maintains that the court erred in |nfinding that S.KC.’s testimony was credible because her statements were inconsistent in the following manner: (1) S.K.C. told the interviewer that he had touched her “5 or 6 times” over the course of a month; however, at the hearing, S.K.C. testified that the defendant “squeezed my butt” and “just kinda put his hands on it;” (2) S.K.C. testified that the defendant had touched her “butt” at a birthday party during a supervised visit; however, the defendant’s parents, who were supervising the visit, testified that they did not see the defendant touch the child’s buttocks during that visit.

The state has a compelling interest in protecting children from sexual abuse. Globe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Folse v. Folse, 98-1976 (La.6/29/99), 738 So.2d 1040; Buchanan v. Langston, 36,520 (La.App.2d Cir.9/18/02), 827 So.2d 1186. Louisiana has various provisions aimed at protecting children in abusive situations, including certain provisions of the Louisiana Children’s Code, the Post Separation Family Violence Relief Act (“PSFVRA”), embodied in LSA-R.S. 9:361 et seq., and the Protection From Family Violence Aet/Do-mestie Abuse Assistance, embodied in LSA-R.S. 46:2131, et seq. With regard to the abuse of children, namely sexual abuse, courts have invoked the provisions of either statutory scheme to l12protect the child.

In Folse, supra, the defendant was accused of sexually molesting his four-year-old daughter. The child’s mother called the sheriffs office and filed for divorce the following day. The family court granted the mother ex-parte custody and ordered no visitation between the child and her father. A hearing was held, and the trial court, invoking the provisions of the PSFVRA, awarded the mother sole custody of the child and denied the father visitation pending his successful completion of the sexual abuse program, as required by the PSFVRA. The court of appeal reversed, finding that the evidence was insufficient to support a finding of sexual abuse. The Supreme Court granted the mother’s application for writ of certiorari and reversed the appellate court’s judgment, stating:

Protecting children from family violence, including sexual abuse, is the primary purpose of the PSFVRA. To effectively protect children, the Legislature has imposed a mandatory suspension of custody and visitation against those parents proven to have sexually abused their children.
The Legislature enacted the PSFVRA because it recognized that the discretion formerly granted to judges regarding custody and visitation in sexual abuse situations was wholly inadequate in curbing family violence, including sexual abuse of children. Through the PSFVRA, therefore, the Legislature has expressed its determination that the best interests of the child would best be served by suspending the abusive parent’s visitation pending that parent’s completion of the program designed to inhibit further abuse. At issue, then, is not the innocence or guilt of the parent, but the best interests and custody of the child.

Id. at 1045-46 (internal citations omitted).

Similarly, in Buchanan, supra, the mother filed a petition for ^¡¡domestic abuse assistance alleging the sexual abuse of her minor daughter by the child’s father. Pursuant to the provisions of the LSA-Ch.C. art. 1570 and LSA-R.S. 46:2136, the trial court suspended the father’s visitation rights and enjoined the father from coming into contact with the child until she attained the age of 18 years. The court further ordered that proceedings to terminate the father’s parental rights be commenced. The father appealed, arguing that the trial court erred in suspending his visitation rights and in “terminating” his parental rights. This court affirmed the trial court’s ruling, noting that the father’s parental rights had been suspended, rather than terminated. This court also found that the trial court did not err in suspending the father’s visitation until the child’s eighteenth birthday. This court concluded that the trial court was not limited to the provisions set forth in the PSFVRA and the Protection from Family Violence Act. The court noted that LSA-R.S. 46:2139 specifically stated that the granting of relief under that Act “shall not preclude any other relief authorized by law.” This court stated:

The trial court in this case fashioned its remedy pursuant to [LSA-Ch.C. art. 1570].... The trial court found by clear and convincing evidence that [the child] had been sexually abused by [the defendant], Accordingly, LSA-Ch.C. art. 1570(F) left the trial court with no discretion, mandating that the protective order “shall last at least until the child attains the age of eighteen years.”

Id. at 1190.

In the instant case, the petition for protection from abuse and the subsequent order of protection were filed and rendered pursuant to LSA-Ch.C. art. 1564 et seq. LSA-Ch.C. art. 1570 provides, in pertinent part:

| |4A. The court may grant any protective order or approve any consent agreement to bring about a cessation of abuse of a party, any children, or any person alleged to be incompetent, which relief may include but is not limited to:
(1) Granting the relief enumerated in Article 1569[TRO].
(2) When there is a duty to support a party, any minor children, or any person alleged to be incompetent living in the residence or household, ordering payment of temporary support or provision of suitable housing for them.
(3) Awarding temporary custody of or establishing temporary visitation rights and conditions with regard to any children or person alleged to be incompetent.
(4) Ordering counseling or professional medical treatment for the defendant or the abused person, or both.
F. Any final protective order or approved consent agreement shall be for a fixed period of time, not to exceed six months, and may be extended by the court, after a contradictory hearing, in its discretion. When such order or agreement is for the protection of a child under the age of eighteen who has been sexually molested, the period shall last at least until the child attains the age of eighteen years, unless otlienvi.se modified or terminated folloiving a contradictory hearing. Such protective order or extension thereof shall be subject to a devolutive appeal only.

(Emphasis added).

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex rel J.B., 35,032 (La.App.2d Cir.5/9/01), 794 So.2d 899; State in the Interest of D.T. v. K.T., 29,796 (La.App.2d Cir.6/18/97), 697 So.2d 665. Great weight is attached to the exercise of the trial judge’s discretion, which will not be disturbed on review if | ^reasonable men could differ as to the propriety of the trial court’s action. State ex rel J.B., supra.

Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. Id.; In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47; Rosell v. ESCO, 549 So.2d 840 (La.1989); State ex rel J.B., supra. Where the factfinder is presented with two permissible views of the evidence, the factfinder’s choice between them is not clearly wrong. Rosell, supra; State ex rel J.B., supra.

In manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. In re A.J.F., supra; State ex rel J.B., supra.

In the instant case, the juvenile court was presented with the testimony of several witnesses, including S.K.C. and the defendant. S.K.C. testified that she and the defendant slept in the same bed during her visits, with the defendant dressed in “his underwear, sometimes only his boxer shorts.” She stated that the defendant touched her buttocks and breast area, and the touching was different from the way the defendant had touched her in the past; she described the touching as “something new.” S.K.C. also testified that she had asked the defendant to “please stop,” and had removed |lfihis hand from her body; however, the defendant continued to touch her on her buttocks and breast area. S.K.C. became concerned about the defendant’s actions and his refusal to stop touching her, so she brought the conduct to the attention of her mother.

The defendant admitted that he slept in the bed with S.K.C., while clad in his underwear. He expressed his belief that nothing was wrong with sleeping with her, despite what others had told him. The defendant did not deny touching S.K.C. on her breast area or buttocks but maintained his belief that the touching “was never in an inappropriate manner” and “never in a sexual way.”

We find no manifest error in the trial court’s conclusion that S.K.C. was sexually abused by the defendant. The court heard the testimony of the witnesses and made it clear on the record that it believed S.K.C.’s testimony. The trial court’s credibility determinations will not be disturbed. This assignment is without merit.

The defendant also contends the trial court erred in adjudicating S.K.C. a child in need of care. The defendant argues that no petition was filed requesting that S.K.C. be adjudicated a child in need of care.

|17Our review of this record reveals that the action was initiated as a petition for protection from abuse, not as a child in need of care proceeding. DSS filed an affidavit and instanter order, requesting that an order be issued granting temporary custody of S.K.C. to DSS; however, that matter was not pursued. Although the court stated on the record that S.K.C. was in need of care, no adjudication hearing was held, and no formal in need of care adjudication was made. This argument lacks merit.

CONCLUSION

For the reasons set forth herein, we affirm the juvenile court’s ruling granting the order of protection from abuse. Costs of this appeal are assessed to the appellant, Richard R. Cordell, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS, and DREW, JJ.

Rehearing denied.

DREW, J., would grant rehearing.

      . The juvenile court fixed the terms of the protection order to expire on January 22, 2017; the date the minor child will reach the age of eighteen years.

      . S.K.C. was nine years-old when the petition for protective order was filed. At the time of the hearing, she was ten years-old.

      . On December 3, 2008, S.K.C. underwent a physical examination at the Cara Center, a facility which treats abused children operated by the Christus Schumpert Health System and Louisiana State University Health Sciences Center. The findings of the examination were normal.

      .The record shows that the court did allow the defendant to have a supervised visit with S.K.C. on December 25, 2008 and on her birthday.

      . S.K.C. testified that the defendant touched her "butt” while her grandparents were preoccupied with "fixing hotdogs.”

      . On December 16, 2008, the Department of Social Services (“DSS") filed an affidavit/instanter order under Title VI of the Children's Code, alleging sexual abuse. DSS requested that temporary custody of S.K.C. be granted to DSS. However, DSS has not acted on its petition, pending the outcome of the instant proceedings.

      . In the affidavit in support of the instanter order, Ms. Washington stated, inter alia:

      [TJhere is good cause to believe that said child cannot adequately be protected from the following dangers or harm, if the child remains in parental custody: Fondling That the following reasonable efforts/preventative services have been offered, to no avail to prevent the necessity of removal of the child from the home: The child protection investigator assisted Ms. Teutsch in getting a protective order, and that the continuation in the family home is contrary to the welfare of the child.
      There is good cause to believe that the child should be removed from the custody of Richard Cordell pending the completion of the investigation....

      .The court specifically noted that the defendant would have “[n]o visitation until a court hearing at Caddo Juvenile Court at which this Court will determine the defendant has completed sexual perpetrator counseling and this Court finds that visitation was consistent with the child's best interest.”

      . LSA-R.S. 9:364 provides, in pertinent part:
      D. If any court finds, by clear and convincing evidence, that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that tire court finds, by a preponderance of the evidence, that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the children's best interest.

      . Before a trial court may adjudicate a child in need of care under Title VI of the Children's Code, the State must allege and prove by a preponderance of the evidence one or more of the statutorily expressed allegations in LSA-Ch.C. art. 606. State ex rel. L.B. v. G.B.B., 2002-1715 (La. 12/4/02), 831 So.2d 918. LSA-Ch.C. art. 606(A) provides, in pertinent part:
      Allegations that a child is in need of care must assert one or more of the following grounds:
      (1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker ... and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
      (5) The conduct of the parent, either as principal or accessory, constitutes a crime against the child or against any other child of that parent.

      . We note that the front page of the standard order form signed by the juvenile court provides, “The terms of this order shall be effective until 1-22-1917,” rather than 1-22-2017. The juvenile court shall amend the order to correct this error. All other references to the year of expiration are correctly written as 1-22-2017.


text:
    Ralph WILLIAMS, Plaintiff-Appellant, v. Kimberly ALLEN, David Legan and State Farm Fire & Casualty Co., et al., Defendants-Appellees.
    No. 44,301-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 2009.
    Rehearing Denied Aug. 13, 2009.

      Steven E. Soileau, Shreveport, for Appellant.
    Kimberly Allen, In Proper Person.
    Charles G. Tutt, Shreveport, for Appel-lees, David Legan, Winners Circle of Homes, Inc. clba Century 21 Winners Circle of Homes and State Farm Fire and Casualty Company.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

|,The plaintiff, Ralph Williams, appeals a judgment in favor of the defendants, Kim-erly Allen, David Legan, Winners Circle of Homes, Inc. and State Farm Fire and Casualty Company (“State Farm”). The trial court granted the defendants’ motion for involuntary dismissal, finding that the plaintiff failed to produce sufficient evidence to prove the elements of defamation. For the following reasons, we affirm.

FACTS

In July 2000, Ralph Williams began working as a real estate agent with Winners Circle of Homes, Inc. (“Winners Circle”), which was located in Shreveport. David Legan was a real estate broker and the owner of Winners Circle. In addition to selling real estate, Williams trained other agents and helped develop computer applications for the office. Legan held weekly sales meetings with the Winners Circle agents, who were encouraged, but not required, to attend. During the sales meeting on March 14, 2005, attended by approximately 25 agents, a question was raised about the method of distributing customer leads among agents. Kimerly Allen then asked Legan what he was going to do about Ralph Williams stealing leads and preventing other agents from making money. Allen claimed that Williams was somehow taking leads from the company’s website when he was at the office late at night. Legan said he would look into the situation. Williams, who was not present when Allen made the statements, then joined the group and denied Allen’s accusations, calling her an idiot. Allen asserted she had proof that Williams was improperly taking leads and responded yes when he asked if she was calling him a thief and a liar. A |2short time after this episode, Williams told Legan that he could not sell real estate in the same office as Allen. Williams then rented separate office space, but remained affiliated with Winners Circle until June 2005, when he started his own real estate sales company.

In September 2005, the plaintiff, Williams, filed a petition for damages against the defendants, Allen, Legan, Winners Circle and State Farm. The plaintiff alleged that his reputation and ability to earn income were damaged by Allen’s false and defamatory statements at the March 2005 meeting, by Legan’s ratification of those statements and by Legan’s own defamatory remarks to other agents that he did not trust plaintiff. At trial, after the plaintiff rested, the defendants moved for involuntary dismissal on the grounds that plaintiff had failed to present sufficient evidence to prove the elements of defamation. The trial court granted the defendants’ motion, finding no evidence that Le-gan was liable for defamation and that plaintiff failed to establish that he had suffered damages as a result of Allen’s remarks. The court rendered judgment dismissing plaintiffs claims against all of the defendants. The plaintiff appeals that part of the judgment dismissing his defamation claim against Allen and his vicarious liability claim against Legan and Winners Circle.

DISCUSSION

The plaintiff contends the trial court erred in dismissing his claims against Allen. Plaintiff argues that the court could not dismiss Allen from the action because she did not individually move for involuntary dismissal.

In an action tried by the court without a jury, after the plaintiff has ^completed the presentation of his evidence, any party may move for a dismissal of the action as to him on the grounds that upon the facts and law, the plaintiff has not shown a right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render a judgment until the close of all the evidence. LSA-C.C.P. art. 1672(B). A motion for involuntary dismissal requires the trial court to evaluate the evidence and render a decision based on a preponderance of the evidence, without any special inference in favor of the party opposing the motion. Davies v. Johnson Controls, Inc., 36,498 (La.App.2d Cir.10/23/02), 830 So.2d 462; Gordon v. Century 21, 04-654 (La.App. 3rd Cir.11/17/04), 888 So.2d 385.

In the present case, the plaintiff asserts that the attorney for Legan, Winners Circle and State Farm moved for involuntary dismissal only for his clients. However, this assertion is not supported by the record. After the plaintiff rested, the attorney representing the above-named defendants stated that “on behalf of the defendants I would move for a judgment at the close of the plaintiffs case.” Thus, the attorney’s motion was not qualified or limited only to his clients as asserted by plaintiff. Nor did Allen, who appeared in proper person, express any wish not to be included in the motion made on behalf of “the defendants.” To the contrary, Allen had previously shown an intent to join in the motions of other defendants by filing a motion to adopt all applicable pretrial pleadings filed by her co-defendants. Further, we note that the plaintiff did not raise this procedural objection at the time the court dismissed plaintiffs claims against Allen for ^failure to show that he had been damaged by her i-emarks. In any event, even if we assume that the trial court made a procedural error in dismissing the plaintiffs claims against Allen without an express motion by her individually, remand is not necessary because the record is sufficient for our determination of the remaining issue. See Koch v. Koch, 97-1600 (La.App. 4th Cir.4/22/98), 714 So.2d 63.

Defamation

The plaintiff contends the trial court erred in finding there was insufficient evidence to prove that he was damaged as a result of the alleged defamatory remarks. Plaintiff argues that damages were presumed because Allen’s accusations were defamatory per se and, in the alternative, that he produced sufficient evidence of actual damages.

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129; Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552. Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello, supra; Trentecosta, supra. Publication is communication of the defamatory statement to someone other than the party defamed. Melancon v. Hyatt Corp., 589 So.2d 1186 (La.App. 4th Cir.1991). The fault requirement is often set forth in the jurisprudence as malice, actual or implied. Thus, in order to prevail on a defamation claim, a plaintiff must prove that the |,-.defendant, with malice or other fault, published a false statement with defamatory words that caused plaintiff damages. Cyprien v. Board of Supervisors University of Louisiana System, 08-1067 (La.1/21/09), 5 So.3d 862; Costello, supra. If even one of the required elements of the tort is lacking, the cause of action fails. Costello, supra.

Words which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Costello, supra. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity, malice and damages are presumed, but may be rebutted by the evidence at trial. Costello, supra.

In the present case, Sandra Park was the only non-party witness who was present at the meeting when the accusations against plaintiff were made. Park testified that during the meeting, Allen “asked David Legan when he was going to do something about Ralph Williams stealing leads” and preventing other agents from making money. Park stated that Legan then said he was looking into the situation. Park testified that Allen asserted that she had proof that plaintiff was using the company website to take customer leads when he was in the office at night. Park stated that Allen repeated her accusation when plaintiff entered the room and he called Allen an idiot. Park testified that Legan did not say anything derogatory about plaintiff at the meeting. She stated that plaintiff appeared very upset by Allen’s accusation and that the woi’king environment at Winners Circle was “very hostile” for him after the March 2005 meeting. Park testified that 1 (¡plaintiff was so uncomfortable that he rented office space off of the premises while still working with Winners Circle. Park acknowledged that in June 2005, she left Winners Circle and began working at plaintiffs new realty company despite Allen’s accusations. Park testified that she knew of two agents who had declined to work at plaintiffs company because they were concerned about plaintiffs reputation. Park stated that in her knowledge, plaintiffs reputation was not blemished in the real estate industry before March 2005.

In her testimony, Kim Allen denied that she was the first to mention plaintiffs name at the March 2005 meeting. Allen testified that in response to another agent’s question about the distribution of customer leads, Legan had said that “Kim-erly came to me [and] she thought Ralph Williams was stealing leads.” Allen stated that she then told the group that she had previously spoken with Legan because she suspected that “someone” was signing onto the company website after hours. Allen testified that after plaintiff denied the accusation she may have mentioned that she possessed an email that was proof of the plaintiffs actions. Allen explained that the email was from the company’s website designer, who had expressed concern about plaintiffs request for a password to access website files. Allen testified that she had not used the words thief or liar in reference to the plaintiff at the meeting. Allen stated that sometime after the March 2005 meeting, she was shocked when a broker from another company asked her about what had been said at that meeting.

David Legan testified that in 2005 he was the owner of Winners 17Circle and held weekly sales meetings with the real estate agents working with his company. Legan stated that several days prior to the March 2005 meeting, Allen came to his office and expressed her concern that plaintiff was improperly taking business leads that should have gone to other agents. Legan testified that at the meeting on March 14, 2005, Allen was the first person to raise the question about what would be done to stop agents from improperly taking business leads that should go to others. Although Legan stated that he knew he was not the first person to raise that issue at the meeting, he did not remember who first mentioned plaintiff as the person taking the leads. Legan testified that he also did not recall hearing the term “stealing leads” used at the meeting. Legan stated that he had not noticed any particular animosity between plaintiff and other Winners Circle agents after the meeting, but acknowledged that plaintiff had said he was having difficulty working at the office after the incident. Legan testified that he had not participated in any real estate transactions with plaintiff after he left Winners Circle.

The plaintiff testified that after operating another business for a number of years, he began working as a real estate agent at Winners Circle in 2000. Plaintiff asserted that he was one of the top agents in sales until 2004, when he began helping to develop the company’s website and laptop presentations. Plaintiff stated that after arriving late to the March 2005 meeting, he learned that Allen had accused him of stealing customer leads by accessing the computer database and that her comments upset him. Plaintiff explained that if a customer contacted Winners Circle through the ^online chat function on its website, then some customer information might be recorded on the chat log that an agent could use to contact the person. He stated that the log did not contain any such information when it was checked and that he did not steal any leads. Plaintiff testified that although Legan did not repeat Allen’s accusation, he should have stopped her comments. Plaintiff stated that he moved to a separate office shortly after the meeting because other agents were talking about him and it was difficult for him to work there. Plaintiff then became a broker and started his own realty company in June 2005. Plaintiff testified that Allen’s false remarks at the March 2005 meeting placed a stigma on his reputation and hurt his ability to recruit agents for his business. He stated that many agents said they could not work with him because of his bad reputation.

In addition, the plaintiff testified that he did not want to start his own company at the time because Winners Circle was a good place to earn money. However, the plaintiff acknowledged that in 2004, the year before the meeting, his tax return showed a business loss of $52,588, while after the meeting in 2005, his records showed a gross income of $75,689 from his realty company. Plaintiff testified that after the March 2005 meeting, he met with Legan to discuss the financial conditions sought by plaintiff to continue working at Winners Circle, but they did not reach an agreement. Despite his testimony that other agents would not work with him after the meeting, plaintiff could not specify any amount of commissions that he lost because of Allen’s remarks. Nor could plaintiff identify any customers who did not trust him as a result of the incident. The plaintiff acknowledged that |9he had previously been sued a number of times, including lawsuits in 2000 for breach of a purchase and sale contract and in 1999 for improper removal of assets from his prior business.

In his brief, plaintiff argues that damages are presumed because Allen’s remarks injured his professional reputation and were defamatory per se. However, even if we assume that Allen published a statement that was defamatory per se, any presumption of damages was rebutted by the evidence produced at trial. Despite the plaintiffs assertion that Allen’s accusation caused the conditions that forced him to leave Winners Circle, the testimony indicated that plaintiff ultimately left not because of Allen’s remarks, but because Legan did not agree to the future financial arrangements sought by plaintiff. Contrary to plaintiffs contention that Allen’s statement damaged his ability to earn income, the record shows that the plaintiffs income actually increased in the period following the March 2005 meeting. In addition, the plaintiff was unable to specify any amount of commissions that he lost because of Allen’s remarks. Thus, the record supports the trial court’s finding that plaintiff failed to produce sufficient evidence of pecuniary loss resulting from Allen’s accusation.

We note that the element of injury resulting from a defamatory statement may include nonpecuniary or general damages, such as injury to reputation, personal humiliation, embarrassment or mental anguish. Regardless of the type of injury asserted, however, the plaintiff must present competent evidence of the injuries suffered. Plaintiff must also demonstrate that the defamatory statements were a substantial factor in causing the harm. 10Costello, supra; Kosmitis v. Bailey, 28,585 (La.App.2d Cir.12/20/96), 685 So.2d 1177.

In this case, Park testified that a real estate agent, Janet McCord, declined to work for plaintiffs business because of concern over plaintiffs reputation. However, the testimony showed that McCord not only discussed the job with Park, but interviewed with the plaintiff despite Allen’s previous accusation. Thus, the record supports a finding that Allen’s remarks were not a substantial factor in the agent’s choice not to accept the job with plaintiff.

In addition, plaintiffs testimony indicated that factors other than Allen’s statement could have affected his professional reputation, such as a number of lawsuits related to his prior deer stand business and litigation alleging that plaintiff failed to perform under a purchase and sale contract. Although plaintiff and his witnesses testified that he was “upset” by Allen’s statement, the plaintiff failed to present any testimony or evidence that he suffered humiliation or experienced any mental anguish because of Allen’s remarks.

The trial court heard the plaintiffs evidence and weighed the credibility of the witnesses, finding that the plaintiff, Allen and Legan each lacked credibility because of their evasive responses to certain questions. Based upon this record, the trial court could reasonably have found that plaintiff failed to satisfy his burden of producing competent evidence to establish that he was damaged by Allen’s statement at the March 2005 meeting of agents. The plaintiffs failure to prove even one of the required |n elements defeats his action for defamation. Consequently, the trial court did not err in granting the motion for involuntary dismissal of plaintiffs action. The assignment of error lacks merit. In reaching this conclusion, we pretermit a discussion of plaintiffs remaining assignment of error regarding vicarious liability.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Ralph Williams.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.