author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Robert James SELLERS, Jr., Appellant.
    No. 48,515-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, Randy Smith, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

|, After a jury found the defendant, Robert James Sellers, Jr., guilty of aggravated battery and attempted incest in violation of La. R.S. 14:34 and 14:78, respectively, the trial court imposed sentences of seven years and ten years for each count, to be served concurrently. The defendant filed this appeal challenging the sufficiency of evidence to support the convictions and the constitutionality of the harsh sentences. For the following reasons, we affirm the defendant’s convictions, vacate the sentences, and remand with instructions for resentencing.

FACTS

The defendant, Robert James Sellers, Jr., suffers from mild mental retardation. He has an IQ of 65, difficulty understanding language, a significant speech impediment, and several social and psychological disorders that make it very difficult for him to cope with ordinary life situations. Dr. Mark Vigen, an expert in forensic psychology, characterized Mr. Sellers’ disabilities to the jury:

[TJhis is a man who has significant cognitive limitations, you know, [his] testing in school as a student and then as an adult person with limited cognitive abilities. He has social disabilities. He has language disabilities. And all these factors including poor school performance, poor work performance, poor social performance, I’m merely telling the Court that these all — he has minimal abilities to really handle life well. He’s a dis— he’s a man with significant disabilities. And he’s — he’s not functioned well in life because of these disabilities.

According to Dr. Vigen, Robert’s mental disabilities placed him in the lowest one percent of the population.

| gSimilarly, Dr. Richard Williams, an expert in forensic psychiatry, also examined Mr. Sellers as part of the sanity commission. At trial, he reviewed several of the factors he considered in his competency evaluation, and he commented on where Mr. Sellers stood in relation to the norm of the general population:

So I’d give a rate of where — of basically how they’re functioning. That has to do with dealing with people, coping with their world. And I give him a 50, 55. So he’s 50 or 55. Somebody who’s psychotic out of touch [sic ] with reality that probably needs hospitalization would be — probably 20 or 25. Someone who’s functioning in here today is, you know, we’re all 80, 85 or above. So that’s kind of where I see him.

Robert had a history of problems in the home and at school. His mother, Barbara Sellers, testified that Robert’s father, now deceased, abused Robert because of his limitations. She testified that her husband sexually molested their daughters, and she suspected that he may have molested Robert based upon comments made to her by her younger daughter, Trish. Robert’s father physically abused him, reportedly beating him with a whip. In addition to his mental retardation, Robert was born with a double-cleft palate only partially repaired by surgery, leaving him with a speech impediment. He suffers from dys-thymia (general, long-term depression) and is socially withdrawn.

At the time of the incident from which these proceedings arose, Robert was 26 years old and living in a mobile home with his mother. The home is located in a secluded rural area of Bossier Parish on approximately 125 acres of land that the family members inherited from their father and |,^partitioned among themselves. However, Robert donated his share of land inheritance to his mother.

Latrisha “Trish” Schact, the younger of Robert’s two older sisters, testified that Robert had been physically abused by their father and had expressed suicidal thoughts at a young age. Deputy Bill Mazike of the Bossier Parish Sheriffs Office (BPSO) testified that in 1996 or 1997, he was dispatched to the trailer to search for Robert, who had taken a butcher knife into a wooded area stating that he intended to commit suicide. Robert was found and later taken to a hospital.

On the morning of November 28, 2009, Barbara and Robert were home alone. Barbara testified that she was awakened by Robert knocking on her bedroom door. He told her he needed to talk. She testified that she got up and “[w]ent into the kitchen, got me a diet coke, popped it, [and] took my medicine.” Then,

.... He walked up behind me, patted my butt. I said, Robert you know this is wrong now back off. I thought he backed off and I started walking toward my bedroom. He came up behind me and started pulling my pajama bottoms down....
He just started pulling my pants up— my pants down. And I kept saying, Robert back off, back off. And he just kept on. He was just in a different world. Usually when he starts something like this I usually can call him off. But it didn’t go off. He finally got my pajamas off. I fell on the floor. He tried to finger me. I said, you touch me, you better not. I managed to get back up and try to run to my bathroom. He’s still right on top of me. I fell again. He went to try to finger me again. And that’s when I hollered and said, if you touch me in any form of way you might as well kill me. I am your mother.

Barbara testified she was able to get away from Robert and managed to get into her bathroom and lock the door.

|4Asked if she had felt Robert physically tried to touch her vagina, Barbara said, “It felt a little like he rubbed, but that’s about it.”

Asked if Robei’t had ever attempted something like this before, she said,

He has tried to, you know, not as— like this time. He would touch, you know, come in pop my bottom and say it’s mine. And I would say, no it’s mine back off. Usually he would back off but that one day he would not back off. He was, you know, in a different world.

Elaborating on this, she said: “He had glassy eyes like he was angry, real hostile, you know, wanting to push me and — onto the different — the beds and all.”

Coming out of the locked bathroom after a while, Barbara left the trailer and drove to the nearby home of her daughter Trish. She testified that she did not see Robert in the trailer when she left and did not see him until he returned the next day. She told Trish about the incident and sought advice on how they could obtain help for Robert. Barbara said that Trish’s husband agreed that they needed to seek help for Robert, and he suggested that they contact a Mr. Bobby Masters for advice. According to Trish, Mr. Masters was a former detective for Bossier Parish and a close friend of theirs. Barbara and Trish spoke with Masters, who advised them to call the BPSO, which dispatched Deputy Carroll Parker to the home to detain Robert for a civil commitment. However, Robert could not be located when the deputies arrived at the home. He had apparently fled into the nearby woods. Deputies proceeded to search for Robert. Trish warned that Robert had his rifle and had said that he would shoot anyone that got in his way. IsAfter an unsuccessful day-long search for Robert, Barbara suggested that they call it off, believing that Robert would return home on his own as he had done in the past.

Robert did return home the next day, and closed himself up in his room. Barbara tried several times to speak with him. Robert stated that he wanted to kill himself. She saw Robert place the rifle’s muzzle in his mouth. Barbara feared he was going out in the woods to commit suicide. She called Trish on her cell phone, who, in turn, called the sheriff’s office.

Following Trish’s call, three deputies went to the Sellers’ mobile home with the intention of detaining Robert for a civil commitment. They found Barbara Sellers standing in the doorway at the back of the trailer and trying to persuade Robert to put away the gun. She said Robert had been threatening to kill himself. Lieutenant Ammons removed Barbara from the scene and summoned the other two deputies waiting nearby. He attempted to defuse the situation by talking to Robert from the back door of the trailer. After a 30-minute standoff, Lieutenant Ammons fired his Taser at Robert and charged into the trailer with Deputy Jay Brown and Sergeant Darron Kerry behind him. The three officers struggled with Robert on the bed while trying to subdue and handcuff him. As the deputies made physical contact with Robert, the rifle discharged, and the bullet grazed Lieutenant Ammons’ right arm, causing a visible flesh wound.

After the officers handcuffed Robert, he was arrested and taken to the Bossier Maximum Security Facility (BMSF). He was charged with | (¡attempted first degree murder and attempted forcible rape by bill of information filed on January 8, 2010. After awaiting trial while being detained for nearly three years at the BMSF, jury selection for trial commenced on September 10, 2012. Before jury selection began, the bill of information was amended in court to charges of attempted manslaughter and attempted incest. Robert entered the dual plea of “not guilty” and “not guilty by reason of insanity.”

Barbara Sellers’ testimony, as recited above, was the sole evidence adduced in support of the attempted incest charge. All three officers testified at trial regarding their involvement in the shooting incident, for which Robert was convicted of aggravated battery.

Deputy Ammons testified that he arrived at the residence first. He heard loud talking coming from the trailer as he knocked on the door. When no one came to the front door, he went to the backside rear of the trailer and observed Barbara Sellers standing on top of the steps to the open back door of the mobile home. He said he heard Ms. Sellers tell Robert to put the gun down.

Ammons pulled Ms. Sellers away from the door, and summoned Deputies Brown and Kerry, who were waiting at the road per his instructions, to assist him. Am-mons then made contact with Robert from the top step, where Ms. Sellers had been standing, while Brown and Kerry |7took positions on the ground on opposite sides of the steps. Each officer testified that he saw Robert in the back bedroom of the trailer, sitting on the edge of the bed with a rifle pointed upward toward the ceiling.

Trying to peaceably resolve the situation, Ammons testified that he attempted to develop a rapport with Robert by speaking casually with him for about 30 minutes on subjects such as hunting and rifles. He obtained a cigarette from Robert and smoked it. When he obtained a second cigarette from him, Robert tossed him his lighter, but it fell short. As Robert reached toward the floor to pick up the lighter, Ammons saw an opportunity to use his Taser on him and charge him. He testified:

I thought I had an opportunity. He was holding the gun with the barrel. And when I asked him for a lighter he threw the lighter but he didn’t throw it far enough. So he reached for the lighter and had the gun like this and I thought I had opportunity then to get in there and be — defuse the situation.
* * *
Well, I shot him with the taser. And he had a big coat on too, so the taser didn’t have a whole lot of affect [sic]. And I’m rushing in. And as I’m rushing in he comes from here to here and in that process of me grabbing him he shoots.

The prosecutor asked Ammons to demonstrate to the jury Robert’s hand motions with respect to the trigger housing and pointing the rifle. Ammons stated:

Starting out he has the weapon like this with the barrel pointing straight up in the air. WTien he throws me a lighter I can’t reach the lighter. So he reaches for the lighter like this. At that point that’s when I shoot the taser and rush in. And this time he comes from like this to bang light that.
(Prosecutor) Where did his left hand go?
To the trigger.

IsAmmons insisted that Robert intended to shoot him. He testified that he saw Robert’s left hand go to the trigger and Robert pointed the gun at him. He said he knows that Robert pointed the rifle at him because “you don’t get shot without somebody pointing a gun at you.” Photographic evidence introduced by the state showed a bullet hole in the ceiling from the shot that was fired.

Ammons’ description of the incident at trial included several details that were not found in the police report he wrote the morning after the incident. Ammons explained why he was able to recall Robert’s actions at trial in so much greater detail from what he entered in his written police report:

Well, and it’s commonly known in any high stress situation you gain more memory of the — what happened the further you distance yourself from that. It’s hard to remember once you’re in a high stress situation exactly what happened, what actually has took place in what order. I mean, it’s all — you know, we’re talking about a what? Five second situation all this happened. It was really quick. So as — as you have time to process what all happened you remember more. You remember more about what went on.

On cross-examination defense counsel asked Ammons why he never mentioned in his police report that Robert pointed the rifle at him or that he saw Robert’s hand go to the trigger. Apparently reading from Ammons’ police report (which is absent from the appellate record), defense counsel further questioned Ammons about details not in his report:

So at the time you wrote your report you said that when you shot him with the taser [ ... ] “at the same time I began running toward him. The taser prongs hit him and he went straight back on the bed at about the same time I was attempting to grab the barrel of the gun when I heard a shot.... I then threw the gun on the floor and tried to secure it.”

1 aAmmons said that he did not include those details (pointing the gun and reaching for the trigger) in his report because “it was obvious:”

If you get shot, somebody points a gun at you. You’re — I mean, somebody’s got to point a gun at you for you to get shot. So I thought it was an obvious point there.

When asked why he did not include in his police report account that the defendant reached for the trigger when he tried to grab the barrel of the gun, Ammons stated:

Somebody’s got to pull a trigger for it to go off. And so I thought it was obvious. You get shot. Somebody pulls the trigger. I mean, a gun doesn’t go off by itself.

Ammons acknowledged that he and the other officers were at the trailer for purposes of an emergency commitment of Robert. Although he said he did not think that Robert ever said he was going to kill himself, nor did he ever threaten him (Am-mons), Robert did place the barrel of the gun in his own mouth several times which he (Ammons) took to mean that he might kill himself.

Before Ammons fired his Taser and charged Robert, he signaled to Deputies Brown and Kerry that he was about to take action. Both deputies were able to charge in immediately behind Ammons as he went into the room. Neither of these two deputies, however, were able to see Robert point the muzzle of the rifle at Ammons.

Officer Jay Brown of the Shreveport Police Department was a BPSO deputy at the time of the incident. He testified that he was on the right side of the staircase at the back door. Ammons removed his Ta-ser, hiding it behind his leg, and made eye contact with Brown, signaling that something |inwas about to happen. He said Ammons suddenly ran in the back door. Deputy Kerry ran in right behind Ammons and he (Brown) was right behind Kerry by “half an inch.”

Brown did not see Robert make any actions with the firearm because his view of Robert was blocked by Kerry and Am-mons. He heard a loud pop, but did not know if it was the Taser or the rifle. Brown described the scene as follows:

When we ran into the room Lieutenant Ammons went over the top of — of the defendant and Kerry went over the top of the defendant also. And I came in third and I was over all of them. He was — he was fighting with us, you know, he — swung at Deputy Kerry and Lieutenant Ammons a couple of times. And he — we couldn’t get his arms, you know, out from underneath him. An then — I mean, we were fighting. Also we had the — I guess the taser Lieutenant Am-mons had the — the wires were wrapped around everybody. So every time he tried to use the taser it pretty much shocked every one that was connected to the taser.

Brown said the rifle eventually fell on the floor and he kicked it away from the front of the bed. He struck Robert on the head with his flashlight two times to subdue him. Photographic evidence at trial showed blood on the bed from Robert’s head injuries.

Brown wrote in his police report that the first thing he saw as he ran into the room behind Ammons and Kerry was Am-mons falling on top of Robert with the rifle in between them, but he did not recall in which direction the gun was pointed. However, he changed his account on redirect examination, now stating that the gun was already on the ground when he saw Ammons and Kerry falling over the defendant.

I n Sergeant Darron Kerry of the BPSO testified that he was one of the officers who had been dispatched to the residence the day before. He said he stopped by Ms. Sellers’ daughter’s house to check on Ms. Sellers. He urged Ms. Sellers to stay with her daughter. He said that she told him:

And at that time she told me that Robert hadn’t returned and that he had made a statement prior to running off in the woods that he would shoot or — I’m sorry, kill any — anybody that — -anyone that come looking for him in the woods and that he would kill any deputy that— that he seen.

The unsuccessful search was subsequently called off.

Sergeant Kerry was sent to the trailer again the next day when he received a call that Robert had returned to the residence. Kerry testified that they (the officers), or more specifically, Lt. Ammons, were talking to Robert trying to get him to come out because they actually had a commitment order for him. He said that they were trying to convince Robert that “they were not there to arrest him or anything like that, we were just, basically, wanting to get him to come out of the residence peacefully to — so we could take him to the hospital for treatment on the commitment order.”

Kerry said he was dressed in his uniform with a bulletproof vest under his shirt. Once Lt. Ammons pulled his Taser out of its holster and signaled he was about to do something, Kerry positioned himself to follow Ammons into the trailer. Kerry gave the following account of the events that followed:

As soon as — as we entered into the room Lieutenant Ammons, basically cleared the doorway. And as he cleared the doorway I could see then that Sellers was actually seated on the end of the bed with — with the firearm.
|12... the first view I had of Sellers was him sitting on the bed holding the firearm in an upright position, I would say probably at a 45 degree angle, probably to the floor, pointed, I wouldn’t say straight — not straight up but kind of at a, like I said, at a 45 degree angle.
Well, it went off. I heard the gun when it fired. And I took it as him being the one that fired it — since he was the one holding it.
Like I said, we — Lieutenant Am-mons — when we entered the room he grabbed Sellers. We — I was right behind him so we all kind of — I say we all, myself and Lieutenant Ammons all kind got there at about the same time and grabbed — grabbing Sellers and we all fell on the bed. We fell on the bed. The gun also fell, you know, on the bed with us. And there was a big — there was a struggle between myself, Ammons and Deputy Brown trying to handcuff and take Mr. Sellers into custody. During this time there — Lieutenant Am-mons had fired the taser as we entered into the bedroom. And there was, you know, there — when you fire a taser there’s a prong with lengthy wires on them attached. These — the wires was wrapped around myself and Deputy Brown. And the gun was also laying on the bed. Well we’re struggling with Sellers trying to handcuff him and take him into custody the — the—actually at one point we was trying to kick the gun — get the gun off the bed to get it away from all three of — all four of us. And as a result sometime during this struggle the gun — the muzzle of the gun was actually stuck up under my vest, you know, trying — as I think Deputy Brown was trying to kick it. And I was trying to shove it. And actually I had to stop and pull — pull the gun out from under my vest to actually ultimately get it off the bed.

On cross-examination, defense counsel, quoting from Sgt. Kerry’s police report made after the incident, noted that Kerry said,

... as I entered into the bedroom I observed Sellers holding a rifle in the upward position then falling back on the bed as Lieutenant Ammons was falling on top of him. As I was making contact with Sellers on the bed I heard a single shot coming from the rifle Sellers was holding.

11sSergeant Kerry acknowledged to defense counsel that the police report was correct where the report recited that they were falling back on the bed when the gun went off:

The gun did go off as we were — all three of us were on — making like I said, as I explained earlier we all made contact with Sellers at the same time. And during that the gun did go off.

Kerry was asked if he saw Mr. Sellers’ hand. He responded, “No, sir, most of the time when there’s a gun pointed at you, you’re watching the muzzle.” He again said that Sellers had the gun pointed upward at a 45-degree angle.

BPSO detectives Kay Ward and Roy Rawls interviewed Robert at BMSF on the same day of his arrest. Robert’s Miranda rights card was introduced into evidence objection as S-4. A recording of Robert’s interview was played for the jury and introduced into evidence as D-l. The interview lasted for 1 hour and 28 minutes, and included psychological manipulation tactics by the detectives, including promises and assurances that they were seeking only to obtain help for him. Robert repeatedly made suicidal statements and inquired about Lt. Ammons’ injury. He tried to explain the shooting incident, but did not make any statements about his mother. Ward testified that Robert spoke with a speech impediment, hung his head low, and avoided eye contact.

Drs. Vigen and Williams each testified that they had served on Robert’s competency and sanity commission. The doctors were accepted as experts in the fields of general and forensic psychology and clinical and forensic psychiatry, respectively. Dr. Vigen testified that Robert had the following conditions:

| ^problems with articulation and expressing himself;

a full-scale IQ score of 65 (99 percent of the general population would perform better than him); dysthymia (a general, long-term, chronic level of depressive feelings, low mood, low energy, and feelings of low self-esteem);
mixed, receptive, and expressive language disorder (trouble understanding, expressing, and processing language);
mild mental retardation;
avoidant personality feature (fearful of interaction with other people and is socially isolated);
secular or autistic thinking;
cognitive, social, and language impairments;
and an adjustment disorder (Robert’s reaction to being in a correctional facility).

Dr. Vigen stated that Robert was reluctant to speak with him and that he did not know Robert’s mental status at the time of the offenses. He also stated that there was not enough information to determine whether Robert knew the rightness or wrongness of his behavior and that there was no evidence of psychosis. On cross-examination, Dr. Vigen stated that Robert’s mental defects and retardation did not impair his ability to know right from wrong regarding the behavior in question.

Dr. Williams stated that he thought Robert was competent to stand trial, and his level of mental retardation (whether mild or moderate) did not interfere with his ability to distinguish right from wrong.

Robert was found guilty of aggravated battery (count one) and attempted incest (count two), with an 11-1 verdict for count one and a unanimous verdict for count two. The court ordered a presentence 1 ^investigation (PSI) to be submitted prior to sentencing.

During the sentencing hearing, held on January 22, 2013, the court recognized that the PSI had never arrived, but decided to go forward with sentencing; there was no objection by the defense counsel. The trial court made the following statements when imposing sentence:

I’ve taken all of those things I’ve just mentioned into considei-ation pursuant to Article 894.1 of the Code of Criminal Procedure. And, again, discussing the matter with your attorney regarding the arguments as to any leniency or mitigating factors that may apply to your overall sentencing.

I do not feel that you are eligible for a probated sentence, that you are at risk if released on probation that you would potentially harm someone else or yourself based upon the nature of the information and evidence that I heard at trial. The sentence I’m going to impose is one that I feel would — fits the evidence that was given at trial and the verdict of the jury. And that would — any lesser sentence would deprecate the seriousness of the offense.

It’s going to be the sentence of this court that on the attempted incest that you serve seven years at hard labor. On the aggravated battery it’s going to be the sentence, because that was the discharge of a firearm resulted in the injury to a police officer, I’m going to sentence you to 10 years at hard labor ... I’m going to run those two sentences concurrent with each other. You’ll be given credit for any time that you’ve served on this charge and this charge only.

Robert received La. C. Cr. P. arts. 930.8 and 914 advisement, but the record does not demonstrate that the trial court informed Robert of the sex offender notification and registration requirements as required under La. R.S. 15:543.

DISCUSSION

In his first assignment of error, Robert alleges that, although the evidence at trial proved Robert had the gun which discharged and caused injury to Deputy Am-mons, his actions did not constitute an aggravated |1fibattery. He contends that the state did not prove that he intentionally used force or violence upon Lt. Am-mons. Robert submits that, at such close range, had he intended to shoot Lt. Am-mons, the bullet would not have merely grazed his arm. Thus, the fact that the bullet only grazed Lt. Ammons’ arm demonstrates that it was an accidental shooting. Robert offers that the rifle could have been discharged by other factors such as his clothing or finger becoming snagged on the trigger during the struggle, or by his involuntary actions when he was tasered. He never threatened to shoot the officers, and he always kept the rifle pointed at the ceiling and away from the officers. He did not foresee that pointing the gun upward or at himself could result in the injury of the police officer.

By way of opposition, the state emphasizes that the jury accepted the testimony of the officers’ version of events, and that it was within the jury’s province to conclude that Robert, who had armed himself with a .22-caliber rifle and refused to submit to an arrest, had the specific intent to commit battery upon Deputy Ammons with a dangerous weapon.

The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime 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. 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 factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219; State v. Cunningham, 46,664 (La.App. 2 Cir. 11/2/11), 77 So.3d 477.

Aggravated battery is a battery committed with a dangerous weapon, La. R.S. 14:34. As it pertains to this case, battery is the intentional use of force or violence upon the person of another, La. R.S. 14:33. A gun qualifies as a dangerous weapon in that it is an “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(3); State v. Bonier, 367 So.2d 824 (La.1979); State v. Singleton, 48,114 (La.App. 2 Cir. 6/26/13), 117 So.3d 306.

In this case, the sufficiency of evidence question centers on whether Robert intentionally shot Lieutenant Ammons or, as he claims, the rifle went off by accident, and he never intended to shoot Lt. Am-mons. As our review of the transcript shows, the jury heard somewhat variant accounts of the incident, especially Lt. Am-mons’ trial testimony compared to his account in his police report. It obviously chose to accept Lt. Ammons’ testimony at trial in which he said he saw Robert reach his hand to the trigger and point 118the gun toward him as he (Ammons) charged and tasered him. This detail was not in his original police report of the incident. The other officers did not see Robert shoot or point the gun at Lt. Ammons.

On close review, we find no internal inconsistency or conflicts with the physical evidence that would warrant rejecting his testimony regarding the shooting. The photographs in evidence showed a bullet hole in the ceiling and two others showed a 45-degree, grazing flesh wound on Lt. Am-mons’ arm. This indicates that the gun was pointed upward when it was fired, which is consistent with the testimony and physical evidence. All accounts by the officers established that Robert was sitting on the bed with the rifle pointed upward when the three officers charged, and the gun went off as they were all falling over Robert as he fell back on the bed. Only Lt. Ammons testified that he saw Robert move his left hand to the trigger and point it in his direction. The other officers simply did not see it. Although Lt. Ammons did not mention these key facts when he made his police report, the jury was made aware of this, and obviously accepted his explanation that his memory improved later.

There were inconsistent accounts by the officers regarding what happened with the rifle during the struggle with Robert on the bed. Lieutenant Ammons said he grabbed the gun and threw it to the floor. Deputy Brown first said it was on the bed, then he said it was already on the ground as they fell on the bed. Sergeant Kerry gave detailed testimony that the gun was on the bed during the struggle and the muzzle became stuck under his bulletproof vest as they struggled to subdue Robert. Eventually, it |18was kicked off the bed.

It is undisputed that the deputies did not go to the Sellers residence to arrest Robert for a crime, but to rather carry out a civil commitment order. Sergeant Kerry testified that they had a commitment order in hand, and the deputies assured Robert when they were trying to get him out of the trailer that they were not there to arrest him. The only conflict in this testimony was whether it was an emergency commitment where no signed order was required or an actual commitment order.

Robert’s mother testified that Robert had owned guns, enjoyed hunting, and had been taught gun safety. She testified that Robert had a driver’s license and that he knew all the rules. She did not believe he would intentionally hurt anyone. Dr. Vi-gen stated that there was not enough information to determine whether Robert knew the rightness and wrongness of his behavior, but felt Robert was competent to stand trial and assist in his defense. Dr. Williams stated that Robert’s mental disabilities did not interfere with his ability to distinguish right from wrong.

After review, under the standard enunciated in Jackson, supra, we conclude that a rational factfinder could have found that the elements of aggravated battery were proven beyond a reasonable doubt. There is no internal inconsistency or conflict with physical evidence that would warrant rejecting Lt. Ammons’ testimony that Robert intentionally shot him and the record does not contradict the jury’s conclusion.

Accordingly, this assignment of error lacks merit.

By his second assignment of error, Robert alleges that the evidence at 12ntrial was insufficient to prove he had the specific intent to commit incest, thus could not support a conviction of attempted incest.

Robert argues that the state failed to present evidence that he possessed a specific intent to engage in sexual intercourse with his mother. He states that a touch does not amount to sexual intercourse, and that the incest statute does not encompass sexual battery.

As noted by the state, Barbara testified about this incident which led her to call the police and Robert’s past actions towards her. The state also asserts that “the jury heard evidence pertaining to defendant’s confession which supported the sufficiency of evidence requirement for attempted incest.”

Incest includes sexual intercourse with any ascendant, with knowledge of this relationship. La. R.S. 14:78. The elements of the crime of incest are “intercourse coupled with knowledge of the relationship.” State v. Patrick, 513 So.2d 449, 453 (La.App. 2 Cir.1987), writ denied, 519 So.2d 140 (La.1988).

Attempt is defined as any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27.

Initially, we observe that Robert did not admit during his interview to doing anything to his mother other than repeatedly stating “I don’t know” |2iand other vague or unintelligible statements. As we appreciate the record, Robert does not admit to doing anything to his mother.

Although incest is a general intent crime, attempted incest requires a showing of specific intent. La. R.S. 14:78 and 14:27. At trial, Barbara testified that Robert came up behind her, patted her buttocks, pulled her pajama pants off, tried to “finger” her twice, and that it felt like he rubbed her. She also stated that she had to lock herself in the bathroom.

In the past, Robert has patted his mother’s buttocks while stating, “It’s mine.” In this incident, he attempted, according to Mrs. Sellers, to place his finger inside her vagina. Mrs. Sellers testified that he ripped her pajamas off and attempted to push her down on the bed. She was able to fight him off and escape to the bathroom where she locked the door to keep him out. We have no trouble concluding that, based on this evidence, a rational jury could have concluded that Robert had specific intent to commit incest with his mother.

Accordingly, this assignment lacks merit.

By his third assignment of error, Robert alleges that, given the facts and circumstances of this case, the trial court erred in imposing the maximum sentence as to each count to be served concurrently. He asserts that the sentences imposed are unconstitutionally harsh and excessive.

Robert argues that he does not fall in the class of worst offenders. He was 30 years old at sentencing, and had only one prior misdemeanor offense, a DWI. He suffered abuse as a child. The evidence shows that he suffers from a speech impediment, low IQ in the mildly mentally retardedj^range, mental impairments and suicidal tendencies.

Robert also notes that the court did not discuss the circumstances in which the shooting occurred, and that the court sentenced him without receiving the PSI it had earlier ordered.

The state contends Robert’s sentences of 10 and 7 years were appropriate: the 10-year sentence for aggravated battery because the offense involved a firearm in which a deputy sheriff was injured; the 7-year sentence because of the history of his behavior as described by the two members of the sanity commission and his mother.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. 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 reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App. 20 Cir. 11/3/10), 55 So.3d 56. 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. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App. 2 Cir. 2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that | ^discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App. 2 Cir. 11/3/10), 55 So.3d 90.

The penalty for incest between an ascendant and descendant is imprisonment at hard labor for no more than 15 years. La. R.S. 14:78; the penalty for attempt sets a fíne or a term of imprisonment not exceeding one-half of the largest fíne, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. La. R.S. 14:27. Thus, the maximum penalty for attempted incest is 7 ½ years. Robert received a sentence of seven years.

The penalty for aggravated battery is a fíne of no more than $5,000, imprisonment with or without hard labor for not more than 10 years, or both. La. R.S. 14:34. Robert received a 10-year sentence. We note also aggravated battery is a crime of violence as defined by La. R.S. 14:2(B)(5), and as such the defendant is ineligible for probation or a suspended sentence and is required to serve out 85% of his sentence before his release. La. R.S. 15:574.4(B)(1).

We note that the court ordered a PSI prior to sentencing. However, the PSI had not arrived when sentencing occurred. Robert’s counsel did not object to sentencing without the court-ordered PSI. A trial court is not required to consider a PSI prior to sentencing. La. R.S. 15:1132. However, the court is required to provide an adequate factual basis for a sentence imposed.

In this instance, the court stated that the maximum ten-year aggravated battery sentence was being imposed because an officer was shot; | ¡.¿however, the court did not provide any reasons why it imposed the near-maximum seven-year sentence for attempted incest. The court did not cite any mitigating factors, but noted that it “mentioned into consideration pursuant to Article 894.1,” that it had discussed “the matter with your (Robert’s) attorney regarding the arguments as to any leniency or mitigating factors that may apply to your overall sentencing.”

We need not recite again the facts regarding Robert’s diminished mental capacity, physical abuse, and psychological and social problems. The testimony of Drs. Vigen and Williams regarding these problems and their direct relationship to Robert’s difficulties in coping with ordinary life, including the current incident, clearly indicate that a lengthy incarceration would serve no purpose other than a needless infliction of pain and suffering. Courts have increasingly recognized that persons suffering from mental retardation are generally less culpable. See, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability.”) In our view, the court should have considered Robert’s diminished mental capacity and mental illness as mitigating factors before imposing sentence.

| ¾-,Generally, a maximum sentence is imposed for only the most serious violations of the relevant statute and for the worst type of offenders. While the use of a firearm in a battery of a police officer is a serious offense, and has been used to justify a maximum sentence in some cases, the few cases we have found presented far more egregious circumstances. For example, in State v. Stucke, 419 So.2d 939 (La.1982), the supreme court affirmed a sentence of 10 years at hard labor for aggravated battery committed by a 28-year-old male first felony offender who had a prior arrest for aggravated battery and a misdemeanor conviction for possession of marijuana. The court specially noted that the evidence was sufficient to have justified a conviction for attempted second degree murder of an officer during the attempt to commit armed robbery. In State v. Kafieh, 590 So.2d 100 (La.App. 5 Cir.1991), the court held that the record supported the maximum sentence imposed for aggravated battery. Although the defendant was a first-time offender, he brutally attacked his victim with a knife, stabbing the victim twice in front of the her three young children. By contrast, the incident involving Robert and Lt. Ammons arose out of Lt. Ammons’ attempt to defuse a suicide situation and execution of a commitment order on a person with diminished mental capacity and psychological problems, and under circumstances in which the gun was being pointed at himself. Frankly, although we have already concluded that the evidence was sufficient to sustain the conviction for aggravated battery, the jury could have just as easily taken a different view of the evidence and acquitted the defendant of this charge.

12(jWe therefore find that the trial court abused its discretion by imposing the maximum sentence for aggravated battery in this case as it constitutes a needless infliction of pain and suffering, and does not reflect the defendant’s actual culpability for the offense committed.

For similar reasons, we conclude that the near-maximum sentence imposed for attempted incest is also excessive under the facts of this case. The circumstances of the crime indicate the seriousness of Robert’s mental problems and social dysfunction in a way not typical of most incest cases involving a parent and child, which almost always involve a parent who uses his or her position of authority to sexually abuse a child.

Nor does the sentencing record supply an adequate factual basis for the near-maximum sentence for attempted incest. Compliance with La. C. Cr. P. art. 894.1 was inadequate, and the sentencing court should have waited for the PSI it ordered, notwithstanding the defense’s failure to object.

For all these reasons, we conclude that the trial court abused its discretion by imposing excessive sentences, and that the sentences must be vacated and set aside. We conclude that the facts and circumstances that form the bases of these convictions call for concurrent sentences of far shorter periods of incarceration than those that were originally imposed, with credit for time served for concurrent sentences in accordance with La. C. Cr. P. art. 880. Accordingly, we remand this case for re-sentencing in compliance with La. C. Cr. P. art. 894.1 and in accord with this opinion.

|a7A review of the record reveals that the trial court failed to inform Robert of the sex offender notification and registration requirements as required under La. R.S. 15:543. This should be corrected on resen-tencing.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions. We vacate and set aside the sentences imposed, and remand for resentencing on both convictions in accordance with this opinion, and for the trial court to provide notice of his sex offender registry requirements in accordance with La. R.S. 15:543.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

      . Dr. Vigen was the other member.

      . Exhibit S-l, photos 20, 21.

      . After spending two and one-half years in the Bossier Maximum Security Facility and seemingly forgotten about, on May 9, 2012, Robert filed a pro se motion for a speedy trial and motion to dismiss for failure to prosecute. On May 15, 2012, the motions were denied as moot because the case was set for status conference.

      .The amendment to the bill of information was presented to the court prior to the jury selection, but was not actually stamped filed until September 12, 2012.

      . The trial court gave the defendant credit for time served for only one offense, aggravated battery. Under La.C.Cr.P. art. 880(E), where concurrent sentences are imposed, defendant receives credit for time served for both concurrent sentences by operation of law. When consecutive sentences are imposed, the defendant receives credit for time served for only one sentence. La.C.Cr.P. art. 880(B).


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kenyetta Denise WILLIAMS, Appellant.
    No. 48,525-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Teresa Culpepper Carroll, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before STEWART, PITMAN and GARRETT, JJ.
   GARRETT, J.

I, The defendant, Kenyetta Denise Williams, pled guilty to attempted manslaughter and was sentenced to 20 years at hard labor. She appealed, arguing that her sentence is excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

On December 18, 2008, Monroe Police were dispatched to a residence to investigate a homicide. The victim was identified as Marvin Alexis Aguilar Osario, a Honduran national living in the United States. The victim died from multiple stab wounds to the stomach and upper thighs. The appearance of the body indicated that the offense occurred several days before the police were notified.

Williams was identified as a suspect through her use of the victim’s cell phone. She was arrested on December 20, 2008. Williams was 16 years old at the time of the offense. , She had been living with relatives in Baton Rouge, but had been on her own for some time. The relatives were contacted and efforts were made to have them present during her questioning by police. However, the relatives refused to come to Monroe. Officers questioned Williams without an adult or guardian present. Williams was fully informed of her Miranda rights prior to questioning. Williams confessed to her involvement in the victim’s death.

Williams told police that she and another woman, Brittany Hicks, were engaged in prostitution with the victim. A dispute arose over payment for their services. Williams contended that the other woman stabbed the | ¿victim. They robbed the victim of his cell phone, handgun, and money prior to leaving the scene.

The defendant was indicted for second degree murder. Two motions to suppress the defendant’s statements were filed and both were denied by the trial court following hearings. A sanity commission was appointed and three psychiatrists examined the defendant. The trial court, in accordance with the unanimous opinions of the psychiatrists, found that Williams was not suffering from any mental disease or defect that rendered her incapable of distinguishing right from wrong, and that she had the capacity to understand the criminal proceedings against her and to assist in her defense.

Pursuant to a plea bargain agreement, on September 19, 2012, Williams pled guilty to the reduced charge of attempted manslaughter. During the Boykin colloquy, the defendant expressly acknowledged that she understood that she could receive the maximum sentence of 20 years at hard labor. She acknowledged that no representation or commitment as to sentencing had been made. After accepting the plea, the court ordered a presentence investigation (“PSI”).

On February 6, 2013, the defendant was sentenced to serve 20 years at hard labor with credit for time served. Williams made an oral motion to reconsider the sentence, claiming that the trial court failed to consider that the victim facilitated the crime by engaging in an act of carnal knowledge of a juvenile and soliciting a minor for prostitution. The trial court denied the motion.

|sEXCESSIVE SENTENCE

Williams contends that the trial court erred in denying her motion for reconsideration of sentence and in imposing an excessive sentence. She argues that the maximum sentence was not warranted because she is not a worst offender. Williams asserts that the only aggravating factor in this case was the victim’s loss of life. As mitigating factors, she points out that, at the time of the offense, she was a homeless teenager supporting herself through prostitution and that she has attempted to better herself while incarcerated. These arguments are without merit.

Legal Principles

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. 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. State v. Elmore, 46,833 (La.App.2d Cir.12/14/11), 80 So.3d 731, writ denied, 2012-0006 (La.4/27/12), 86 So.3d 627. 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.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Elmore, supra.

Second, a sentence violates La. Const, art. I, § 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, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Elmore, supra. 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, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Elmore, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. |sOn review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra.

Regarding manslaughter, La. R.S. 14:31 provides that the maximum sentence which may be imposed is 40 years at hard labor. Under La. R.S. 14:27(D)(3), the maximum sentence for attempted manslaughter is 20 years at hard labor.

Discussion

The trial court complied with La. C. Cr. P. art. 894.1 in imposing the sentence in this case. The court ordered a PSI and determined that a sentence of imprisonment was appropriate in this case because there was an undue risk that Williams would commit another crime during a suspended sentence or probation, she was in need of correctional treatment most effectively provided by commitment to an institution, and a lesser sentence would deprecate the seriousness of the offense. The trial court found that Williams committed this offense to facilitate the robbery of the victim and that a dangerous weapon, a knife, was used.

As mitigating factors, the trial court considered the defendant’s age, lack of criminal history, social background, and efforts at self-improvement. The court noted that Williams has had a difficult life. She had no history of prior criminal activity. Williams was born in Baton Rouge on October 20, 1992, and her mother died of complications from AIDS when Williams was five years old. Williams never met her father, but he died in 2008. Williams was raised by an uncle until 2004, when she went to live with anj^aunt. In 2006, Williams was expelled' from school for fighting. At age 13, a social worker placed Williams in a youth house in West Monroe. Williams ran away five months later and was homeless until her arrest for the present offense. The trial court noted that Williams took the GED test while incarcerated, but could not pass the math portion of the examination. Williams had never been married and had no children, but she had a miscarriage when she was 15. Williams denied abusing drugs, but admitted to recreational use of marijuana and ecstasy as well as consuming an occasional strawberry daiquiri. In 2005, Williams was treated at Baton Rouge Mental Health for anger management and depression.

Williams was interviewed by a probation officer on October 31, 2012, in connection with the PSI. Williams expressed remorse for this offense. She claimed that she did not know that the victim had been killed until she was arrested. She maintained that she was in another room talking on the victim’s cell phone when her accomplice stabbed the victim. Williams admitted stripping the victim of his pants and stealing his money while he fought with the accomplice. The trial court considered a mental health evaluation of Williams made in 2009. This evaluation contained information about drug use contradictory to what Williams told the probation officer. The trial court considered the efforts Williams made to better herself while incarcerated as well as letters from the prison chaplain and the defendant.

As an aggravating factor, the court considered that a human being lost his life in a planned robbery and vicious murder. The trial court considered |7that Williams was originally charged with second degree murder which carries a mandatory sentence of life in prison. Williams was afforded great leniency by being allowed to plead guilty to attempted manslaughter, which significantly reduced her sentencing exposure.

The imposition of the maximum sentence of incarceration in this case is not constitutionally excessive. Williams participated in robbing the victim and was present in the residence when the victim was stabbed numerous times, resulting in his death. Williams was initially charged with second degree murder and faced a mandatory sentence of life in prison. She received a significant reduction in sentencing exposure by being allowed to plead guilty to attempted manslaughter. The sentence is not grossly disproportionate to the seriousness of the offense and does not shock the sense of justice. After reviewing the record and considering all of the factors is this case, we find that the court acted within its discretion in sentencing Williams to serve 20 years at hard labor.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Kenyetta Denise Williams.

AFFIRMED.


text:
    Rex BRYAN, Plaintiff-Appellant v. Roy GRIGGS, et al., Defendants-Appellees.
    No. 48,579-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.
    Lunn, Irion, Salley, Carlisle & Gardner, by James B. Gardner, Shreveport, Ryan O. Goodwin, for Plaintiff-Appellant, L.H. Commercial Real Estate Sendees, Inc. d/b/a Lea Hall Properties.
    Weiner, Weiss, & Madison, Shreveport, by John M. Madison, Jr., for Defendant-Appellee, Roy Griggs, Ravish V. Patwar-dhan, M.D., and IF Enterprise of Shreveport, LLC.
    Before BROWN, CARAWAY, and GARRETT, JJ.
   GARRETT, J.

| ¶ This case arises from a short two-page letter agreement that was executed in connection with a project to build a hotel. L.H. Commercial Real Estate Services, Inc., d/b/a/ Lea Hall Properties (“LHP”), appeals from a judgment finding that Roy Griggs, Ravish V. Patwardhan, M.D., and IF Enterprise of Shreveport, LLC (“IF”), are not liable in solido to LHP for a financing fee of $54,000. Griggs, Patwar-dhan, and IF filed in this court an exception of no right of action against LHP. Griggs and Patwardhan also filed an answer to the appeal, claiming the trial court erred in ordering them to pay LHP $2,240 for a building permit fee waiver. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Griggs, Patwardhan, and IF, a company formed by Griggs and Patwardhan, undertook to construct a Sleep Inn hotel in Shreveport near the LSU Health Sciences Center. Rex Bryan held himself out to be an expert in “economic development.” He was also a co-owner of LHP, which is a real estate company. An attorney for Griggs suggested that Bryan might be able to assist in the project which was being located in a low income area as Bryan had expertise in getting “tax credits, incentives, things like that.”

On September 25, 2007, Bryan prepared and sent a letter agreement to Griggs and Patwardhan which was captioned “Re: Enhancements Program Management” and specified in pertinent part:

Rex Bryan or his assigns will provide economic development services that may enhance the financial structure of [your] development in the area of LSU Medical Facility in Shreveport, La. These services may include financing of new facilities, renovation of building or properties, obtaining tax credits, tax exemptions, tax rebates, grants and/or any other enhancements |2provided by state, local, regional and federal programs. These services would also include the processing and/or monitoring of the financing and enhancement programs.
The fee payable to Rex Bryan or his assigns:
• 1% financing program utilized.
• 8% any tax credits, tax exemptions, tax rebates, grants and other enhancements utilized in project.
The total fee is due and payable at the closing or when funds are made available, which ever comes first, with one exception. It [sic] that the processing of enhancements involve a period of time, the enhancement programs total saving will be estimated, then 10% of those savings will be paid in 4 equal payments prior to formal approval of any of the enhancement programs. Then 90% of fee is due as stated above, when funds are made available or at closing, which ever comes first.
Nothing contained in this letter shall obligate you to pursue or utilize any financing program or enhancement we may suggest. Except for the four installment payments described above, no fee will be due to us unless you, in your sole discretion, elect to close or receive funds under a transaction involving a financing program or enhancement which we have arranged.
The letter was written on the letterhead of Rex Bryan, CED, with a logo beside Bryan’s name reading “Economic Development.” LHP was not mentioned anywhere in the letter.
On November 27, 2007, Griggs and Pat-wardhan signed the letter acknowledging and accepting its terms. On November 28, 2007, Bryan signed the letter above a signature line that read “Mr. Rex Bryan R.B. Developments, LLC.” In May 2008, IF purchased the immovable property for the project. Neither Bryan nor LHP was involved in the real estate Rpurchase. On August 19, 2009, IF entered into a multiple indebtedness mortgage with Red River Bank (“RRB”) for $5.4 million to construct the hotel. The mortgage was executed by Griggs and Patwardhan as managers of IF.
Bryan claims he helped the defendants obtain the financing from RRB and that he secured a waiver of a building permit fee of $28,000. On September 3, 2009, Bryan sent an invoice to Griggs and Patwardhan for $54,000, representing a one percent fee for the RRB loan and $2,240, representing an eight percent fee for the waiver of the building permit fee. Griggs and Patwar-dhan refused to pay and this litigation ensued.
On December 9, 2009, Bryan filed suit entitled “Petition in Breach of Contract” against Griggs and Patwardhan for breach of the letter agreement and to collect the total fees of $56,240 and other damages. Paragraph three of the petition stated: Plaintiff shows that subsequent to entering into the contract executed by all of the parties on or before November 28, 2007, plaintiff faithfully undertook to provide the services to defendants for which he contracted to provide to the best of his ability and expended considerable hours in the contracted activities to the detriment of his obligations to his principle [sic] employer, Lea Hall Properties, which resulted in the parties subsequently agreeing that plaintiffs employer, Lea Hall Properties, would be compensated on an hourly basis, billed monthly, which subsequently occurred through all of plaintiffs activities under the contract through August 31, 2009, for which Lea Hall Properties was paid for plaintiffs hourly services.

Griggs and Patwardhan answered, asserting that the letter agreement was ambiguous and did not reflect the agreement of the parties. They claimed that Bryan represented to them that he could obtain specialized 14financing by governmental or other nontraditional entities and that they did not agree to pay Bryan to obtain traditional bank financing. The defendants also pointed out that, during their dealings with Bryan, the parties entered into another agreement providing that LHP would be compensated for Bryan’s time at $95 per hour, to be billed monthly and Bryan had already been paid for his work.

Griggs and Patwardhan also filed a supplemental and amended answer and recon-ventional demand. They claimed that the loan with RRB was obtained by IF and not Griggs and Patwardhan in their individual capacities. They alleged that Bryan failed to comply with the requirements of a licensed loan broker under the Louisiana loan brokers’ statute found in La. R.S. 51:1910 et seq. and therefore, he was not entitled to recover a fee for obtaining financing.

Bryan answered and claimed that the loan brokers’ statute did not apply to any person licensed by the Louisiana Real Estate Commission who arranges financing in the normal course of representing a client for the purchase, sale, lease, or rental of real estate. Although Bryan did not have a real estate license, he claimed that he conducted his business through LHP, which was a licensed real estate broker.

Griggs and Patwardhan then filed an exception of no right of action, claiming that if Bryan obtained financing, he did so as a loan broker. Because he did not comply with the licensing and registration requirements |sfor loan brokers, Griggs and Patwardhan argued that Bryan had no right of action to recover any fees.

Before this exception could be heard, Bryan filed a supplemental and amending petition adding LHP as a plaintiff and IF as a defendant. Bryan alleged for the first time that he had assigned the letter agreement with Griggs and Patwardhan to LHP and that Griggs and Patwardhan assigned the contract to IF.

Griggs, Patwardhan, and IF then filed an additional exception of no right of action claiming that LHP was not a party to the letter agreement and had no rights under it. They contested Bryan’s assertion that he assigned the letter agreement to LHP, arguing that this was not supported by the facts and was prohibited by law. The defendants contended that they contracted with Bryan because of his special skills or qualifications. Thus, under La. C.C. art. 1766, such an obligation is strictly personal and La. C.C. art. 2642 precludes the assignment of a strictly personal obligation. The defendants also argued that IF was improperly made a defendant because the company was not a party to the agreement and had no obligations under the letter agreement.

In their opposition to the exceptions, Bryan and LHP attached Bryan’s individual deposition and the corporate deposition he gave on behalf of LHP. In his personal deposition, Bryan stated that he had experience putting together financing and enhancement programs and claimed to be a certified economic developer, but he did not have any kind of a professional license to carry out this function. He was not a licensed Rrealtor. Bryan acknowledged that he authored the letter agreement at issue here and claimed that he verbally assigned the agreement to LHP on September 25, 2007, the date he wrote the agreement. However, he did not tell Griggs and Patwardhan about the assignment. When asked by the defendants’ attorney what the phrase “or his assigns” meant in the letter agreement, Bryan said that he may bring in a partner or sell his interest in it “so it’s a common term I use so that if I die I have a contract and it can be assigned to someone else ... and they don’t pay me unless they get the benefit.”

Bryan acknowledged that there was a subsequent agreement by the defendants to pay $95 per hour for Bryan’s work in connection with the construction of the hotel. This agreement resulted from Bryan’s actions in acting as the defendants’ representative and coordinating activities necessary for the construction of the hotel. These included finding an architect, builder, and management company, and choosing design packages for the interior of the hotel. Bryan said that he decided how much of this money he would share with his partners at LHP. He generally received 80 percent and his two partners at LHP shared 20 percent. In the corporate deposition, Bryan reiterated that he assigned the letter agreement with the defendants to LHP verbally.

On July 19, 2010, a hearing was held on the exceptions of no right of action before Judge Ramon Lafitte. The entire transcript of the hearing is not included in the record. We have only the in-court testimony of Bryan, [7the exceptions, oppositions, and exhibits filed with these together with various exhibits that were introduced. In addition to questions posed by the attorneys, Bryan responded to queries by the trial court. The trial court asked Bryan whether he was representing himself or LHP at the time he entered into the agreement. Bryan stated that he believed he was representing both. However, Bryan also testified that he assigned the agreement to LHP later on “after we got into [it].” This testimony was somewhat different from that given in his deposition. He admitted that he was not a loan broker. Bryan stated that he brought the defendants’ together with RRB and should be paid the financing fee under the letter agreement.

The trial court took the matter under advisement. On June 24, 2011, the trial court filed an opinion sustaining the exception of no right of action as to Bryan, but overruling the exception as to LHP. The trial court reasoned that because Bryan was not a licensed loan broker under Louisiana law he was personally prohibited from claiming or collecting fees. The opinion did not specifically address the $2,240 fee for obtaining the waiver of the building permit fee.

The trial court mentioned the defendants’ argument that Bryan could not assign the letter agreement because the parties had contracted for the special skills and qualifications possessed by Bryan and such a strictly personal agreement could not be assigned. However, the trial court did not analyze or address the merits of this issue. Relying solely upon the “or his assigns” language in the letter agreement, the trial court reasoned that “this language indicates authority for Bryan to assign the agreement.” The trial |scourt denied the exception of no right of action as to the purported assignee, LHP. When this ruling was made, the trial court, of course, did not have the benefit of all the evidence that would be adduced at the trial on the merits.

Griggs, Patwardhan, and IF filed a writ application in this court, objecting to the ruling on the exceptions. The application was denied with this court stating, “upon the showing made, the exercise of this Court’s supervisory jurisdiction is not warranted.” Bryan did not seek review of the trial court ruling. Therefore, the decision finding that Bryan had no right of action was final.

Unfortunately, Bryan died on July 4, 2011. Although the trial court found that Bryan had no right of action against the defendants, a reconventional demand was still pending against him. Bryan’s succession was substituted as a defendant in reconvention by the plaintiffs in reconvention.

After the ruling on the exceptions of no right of action, Griggs, Patwardhan, and IF answered the first supplemental and amending petition, alleging that they were never notified that Bryan assigned the letter agreement to LHP and only became aware of a purported assignment when Bryan amended his petition to add LHP as a plaintiff. They claimed there was no evidence that LHP accepted an assignment from Bryan. They reasserted their argument that Bryan’s obligation under the agreement was personal and could not be assigned. They also claimed that LHP did not comply with the law regarding loan brokers and was barred from bringing an action to recover for services purportedly performed for the defendants.

|nOn May 1, 2012, Judge Leon Emanuel presided over the trial on the merits. The parties entered into a joint stipulation that if the president of RRB, Harold Turner, appeared at trial, he would testify that he had known Griggs from living in the same neighborhood and doing business with him. IF became a customer of RRB for financing the hotel project and Mark L. Rowe, vice-president of commercial lending at RRB, was the loan officer that handled the loan. Turner participated in the loan review and approval process while Rowe handled the dealings with Griggs, Patwar-dhan, IF, and Bryan. Since Bryan was deceased, his depositions, together with his testimony from the hearing on the exceptions were introduced into evidence.

Rowe testified that he knew Bryan and the two other owners of LHP, Jenny Ken-non and Deborah Camus. Rowe stated that Bryan told him about the hotel project, but Bryan and LHP were out of the picture when it came time for the project to close.

Camus, the president of LHP, testified that Bryan conducted all of his business through LHP. She stated that Bryan told her about the letter agreement with the defendants the day the agreement was signed and she put a copy of the document in the LHP files. She confirmed that there was another agreement for the defendants to pay LHP for the time Bryan expended on their behalf, at a rate of $95 per hour. Camus testified that LHP has a real estate license, but not a loan broker license. Camus stated that Bryan did the majority of the work on the hotel project and she Improvided only minimal assistance. Camus said that she attended a general meeting on financing as well as a meeting regarding the hiring of a management company for the hotel. Camus stated that she and Kennon offered opinions about color schemes for the hotel, but were not given authority to make those selections.

Griggs testified that he was the managing member of IF. He also owns numerous McDonald’s franchises in Louisiana and Texas. According to Griggs, one of his attorneys suggested Bryan for assistance in obtaining tax credits and incentives. Griggs claimed that he and Patwardhan were not aware that Bryan was affiliated with LHP when they began their relationship. He testified that the agreement was entered into with Bryan because of the unique skills Bryan represented that he had. Griggs testified that he understood that portion of the letter agreement with Bryan regarding a one percent fee for finding funding to encompass only nontraditional financing as he did not need assistance with a traditional bank loan. Griggs stated that Bryan never told him that he assigned the letter agreement to LHP. He first became aware of the alleged assignment only after receiving the amended pleadings filed by Bryan in this matter. Griggs said he and Patwardhan never accepted the assignment of the agreement to LHP. Griggs denied that he and Patwardhan assigned the letter agreement to IF.

Exhibits that were introduced showed that Bryan kept detailed time records labeled “Rex Bryan Consulting” and billed for these services at the $95 per hour rate. These invoices were promptly paid by IF. A parting of the ways occurred. A letter dated September 1, 2009, from Bryan to Griggs |nand Patwardhan acknowledged that, as of August 31, 2009, Bryan was no longer the owners’ representative in the hotel construction project. The letter went on to state, “I will continue to develop the incentive programs and [to be] available to meet with you any time concerning these monetary benefits.”

During the trial, there was extensive discussion about the binding effect of the prior ruling made by Judge Lafitte on the exception of no right of action and the writ denial by this court. No rulings were made at that time and the trial court took the case under advisement.

On October 22, 2012, the trial court issued an opinion in favor of LHP and against Griggs and Patwardhan in solido for $14,640.95. The trial court was apparently confused regarding some invoices that had been introduced as exhibits. The trial court inexplicably found that $14,640.95 in charges that were not in dispute and in fact had been paid were due. Judgment was rendered in favor of the executor of Bryan’s succession, dismissing the claims of Griggs and Patwardhan against it. All other claims were dismissed with prejudice.

In reasons for judgment, the trial court declined to reconsider or revisit the prior ruling on the exceptions of no right of action despite the fact that the record at trial was more extensive than what was presented before Judge Lafitte. The trial court said it would not revisit the issue of whether the letter agreement had been assigned to LHP, yet stated that Bryan had assigned the agreement to LHP. However, the trial court did not address the issue of whether the agreement was for personal services which 112could not be assigned under Louisiana law. The trial court found that Bryan provided services to the defendants as a certified economic developer through the course of his business with LHP. However, in denying recovery to LHP for the $54,000 fee for obtaining financing, the trial court essentially determined that Bryan did not earn the fee. According to the trial court, the defendants made separate efforts to obtain financing and by September 1, 2009, Bryan was not the defendants’ representative. The trial court found that LHP was not involved in the financial agreement between IF and RRB and that Bryan’s efforts and those of LHP did not result in the utilization of any financing program or enhancement arranged by LHP. The trial court held that the plaintiff failed to carry its burden of proof. The trial court also found there was no proof to substantiate the defendants’ claims for damages and attorney fees.

Both sides filed motions for new trial. Griggs and Patwardhan asserted that the trial court erred in ordering them to pay $14,640.95, claiming that LHP had not requested this amount and all invoices had been paid. LHP claimed there was no evidence to support a denial of recovery to the company for the financing fee and that there was no basis in law for the trial court to accept parol evidence from Griggs regarding his understanding of the terms of the contract to provide economic development services. LHP also argued that the evidence showed that it, through Bryan, obtained a waiver of a building permit fee and was entitled to recover $2,240 for this service.

11sAt the hearing on the motions for new trial, LHP acknowledged that all invoices based on hourly work had been paid by the defendants and the company was not owed $14,640.95, as stated in the judgment. LHP argued that it was entitled to the one percent financing fee of $54,000, as well as the eight percent fee of $2,240 for the waiver of the building permit.

On December 10, 2012, the trial court issued a judgment granting the motion for new trial filed by Griggs and Patwardhan and granting in part and denying in part the motion filed by LHP. The trial court rescinded that portion of the prior judgment ordering Griggs and Patwardhan to pay LHP $14,604.95, but found that LHP was entitled to $2,240 regarding the waiver of the building permit fee. The trial court maintained its prior finding that Bryan and/or LHP were not entitled to a fee regarding the RRB loan. All claims by the defendants against Bryan’s succession were dismissed and all other claims in the matter were dismissed with prejudice.

LHP appealed. Griggs, Patwardhan and IF answered the appeal and reasserted them exception of no right of action.

EXCEPTION OF NO RIGHT OF ACTION

The defendants have reasserted in this court their exception of no right of action as to LHP. They argue that the letter agreement between Bryan and the defendants could not be assigned, there was no proof that an assignment occurred, the alleged oral assignment was invalid, the defendants were not given any notice of an assignment, and the real estate exception to the loan broker’s statute did not apply to LHP under the facts |14of this case. For the following reasons, we find that the exception of no right of action should be sustained for the reasons outlined below.

Legal Principles

An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Schexnayder v. Gish, 41,819 (La.App.2d Cir.2/7/07), 948 So.2d 1259. The exception of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. St. Jude Medical Office Bldg. Ltd. P’ship v. City Glass and Mirror, Inc., 619 So.2d 529 (La.1993); Caddo-Bossier Parishes Port Com’n v. Arch Chemicals, Inc., 36,505 (La.App.2d Cir.10/23/02), 830 So.2d 498. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885.

Unlike the trial of an exception of no cause of action, evidence is admissible on the trial of the exception of no right of action to support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition. La. C.C.P. art. 931; Caddo-Bossier Parishes Port Com’n v. Arch Chemicals, Inc., supra. The burden of proof of establishing the exception of no right of action is on the exceptor. Wagoner v. Chevron USA, Inc., 45,507 (La.App.2d Cir.8/18/10), 55 So.3d 12.

| i¡;The exception of no right of action is peremptory and may be pleaded at any stage of the proceeding. La. C.C.P. art. 928. Failing to disclose a right or interest in the plaintiff to institute the suit may be noticed by either the trial or appellate court on its own motion. La. C.C.P. art. 927.

The overruling of a peremptory exception is merely an interlocutory order and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception upon finding that it erred in overruling it. R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Babineaux v. Pemie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); Wood v. Omni Bancshares, Inc., 10-216, 10-567 (La.App.5th Cir.4/26/11), 69 So.3d 475.

The exception of no right of action presents a question of law requiring a de novo review by the appellate court. See Wagoner v. Chevron USA, Inc., supra; Schexnayder v. Gish, supra.

In this matter, the defendants properly reasserted their exception of no right of action in this court. Neither the trial court nor this court is bound by the prior trial court action in overruling the exception of no right of action as to LHP.

Strictly Personal Obligation

Rights and obligations arising from a contract are heritable and assignable unless the law, the terms of the contract or its nature preclude such effects. La. C.C. art.1984. All rights may be assigned, with the exception of those pertaining to obligations that are strictly personal. La. C.C. art. 2642.

| ifiLa. C.C. art. 1766 defines strictly personal obligations:

An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor. When the performance requires the special skill or qualification of the obligor, the obligation is presumed to be strictly personal on the part of the obligor. All obligations to perform personal services are presumed to be strictly personal on the part of the obligor.
When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obligee.

Strictly personal obligations are explained in S. Litvinoff, Obligations § 4.11-4.12, pp. 58-59, in 5 Louisiana Civil Law Treatise (2d ed.2001) as follows:

[W]hen performance can be demanded only by a certain person and not by his successors, the obligation is strictly personal as to that person. Likewise, when performance can be demanded only from a certain person and not from his successors, the obligation is strictly personal as to that person[.]
Thus, all obligations to perform personal services are presumed to be strictly personal on the part of the obligor. Indeed, when a skill is involved, as for the building of a structure, the painting of a portrait, the making of a denture, or the rendering of medical services, it would make no sense for the obligee to enforce performance against heirs of the obligor, who may not possess that skill at all, or not in the same degree as their ancestor, and lack therefore the ability to perform in the manner expected.
The same reasons that make an obligation strictly personal, and therefore not heritable, in the sense that it cannot be enforced against a successor of the obligor, suffice to explain that he may not transfer his passive side of the obligation by an act between living persons, that is, he may not delegate his duty to perform. Indeed, when such an obligation is conventional, the obligor’s particular skill, and also the education, training and experience through which it was acquired, are the reasons that inclined the obligee, in the vast majority of cases, to select that particular obligor to render the expected performance. That being so, the obligee’s interest |17would be defeated, or at least frustrated, if the law were to force him to receive a performance rendered not by the selected obligor but by a substitute one who might not possess the desired skill, or might possess it only in a lesser degree. For that reason the Louisiana Civil Code clearly states in another section that, though performance may be rendered by a third person, even against the will of the obligee, that is not so when he has a special interest in a performance rendered only by the obligor, as is no doubt the case when the obligation is strictly personal on the part of the obligor[.]
In sum, out of respect for human personality the law recognizes that many qualities that are personal to human beings are neither identical nor interchangeable. For that reason, those obligations the performance of which requires such qualities are not transferable. As a result, an obligation that is strictly personal on the part of the obli-gor may not be enforced by the obligee against the obligor’s heirs, nor may the latter claim that the obligee must accept a performance rendered by them, nor may the obligor delegate to another person his duty to perform. [Footnotes omitted.]

Discussion

Based upon the entire record in this case, it is clear that the obligations created by the letter agreement were strictly personal on the part of the obligor, Bryan, and required the special skills or qualifications that he represented that he possessed. Bryan’s lengthy résumé, submitted to the defendants to induce them to enter into the agreement with him, shows that he claimed to be an economic development consultant with “[bjroad based marketing and management skills focusing on economic development activities of associations, governmental and corporate entities.” He stated that he had been a certified economic developer since 1978. His activities | isincluded obtaining bond financing for various projects with tax-exempt bonds, infrastructure development using government grants, development of low-interest loan programs, and utilization of “other financial resources such as major lending institutions to enhance the opportunity for significant projects to materialize.” Bryan outlined a number of projects he had been involved with as well as the cash rebates, grants, or financing he claimed to have obtained for them.

Bryan held himself out to possess special skills and qualifications in the area of economic development. As testified to by Griggs, those factors and the unique skills possessed by Bryan were the reason that the defendants entered into the letter agreement with him to obtain financing and other enhancements for the hotel project. In the letter agreement, he obligated himself to perform personal services for the defendants. The letter agreement was on Bryan’s stationery, not that of LHP.

The record also shows that Bryan considered that the letter agreement with the defendants was for his personal services. In his letter of September 1, 2009, acknowledging that he was no longer the owners’ representative for the building project, Bryan states that “I appreciated the opportunity to work with you,” “I understand that Rex Bryan is no longer the Owner’s Representative,” “I will continue to develop the incentive programs” and “if I can be of assistance in the future, please call.”

Even though Bryan claimed he assigned the letter agreement to LHP, it was Bryan and not any other partner or employee of LHP who performed the obligations owed to the defendants in that agreement. There is no | ^showing that any other person associated with LHP had the qualifications or skills possessed by Bryan. Only Bryan could fulfill the obligations created by the letter agreement. The record shows that any participation in the project by any other employee or partner of LHP was minimal, and largely consisted of input into the interior design scheme and other incidentals not covered in the letter agreement. We further note that these services, as well as time spent by Bryan in attempting to secure financing and other enhancements for the project, were billed to the defendants at the rate of $95 per hour and were paid by the defendants. The record reflects these payments totaled $20,421.56.

The obligations undertaken in the letter agreement were strictly personal to Bryan; he could not assign the letter agreement to LHP or to any other entity or person. Further, simply because the letter agreement refers to Bryan or his “assigns” does not mean that Bryan could legally assign the agreement or that the defendants agreed to an assignment. Bryan’s testimony regarding this language demonstrates that his understanding of the concept was vague.

Because Bryan could not assign the letter agreement, we sustain the exception and hold that LHP has no right of action against the defendants for the fee associated with securing the loan from RRB or the fee for obtaining the waiver of the building permit fee.

|20We are mindful of La. C.C.P. art. 934, stating that when the grounds for a peremptory exception may be removed by amendment to the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised by the exception cannot be so removed, the action, claim, demand, issue, or theory shall be dismissed. In this case, the ground's for the exception of no right of action cannot be removed. Therefore, the demands of LHP against the defendants are dismissed.

Even though the defendants admit that Bryan would have been entitled to the fee for obtaining the waiver of the building permit fee, and that the loan brokers’ statute would not have barred recovery for this item, as stated above, Bryan could not assign his obligation in the letter agreement to LHP. Further, the trial court granted the exception of no right of action as to Bryan and Bryan did not seek review of that ruling. Bryan’s succession remained a party to this litigation only in the capacity of a defendant in reconvention. La. C.C.P. art. 2164 provides that an appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. However, an appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. La. C.C.P. art.2085. La. C.C.P. art. 2133 states that an appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. Bryan is no longer a plaintiff in this action and his succession [2ihas not requested any relief in this court. Therefore, we are constrained to hold that we cannot make an award to Bryan’s succession for his efforts in obtaining the waiver of the building permit fee. See and compare Grimes v. Louisiana Med. Mut. Ins. Co., 2010-0039 (La.5/28/10), 36 So.3d 215; Hart v. Masur Dean, 47,012 (La.App.2d Cir.3/7/12), 90 So.3d 30; State ex rel. J.M. v. Brooks, 41,952 (La.App.2d Cir.12/20/06), 946 So.2d 302.

Because we sustain the exception of no right of action as to LHP, and find that LHP is not entitled to recover for the $54,000 financing fee or the $2,240 fee for obtaining the waiver of a building permit fee, we need not consider the other arguments made by the defendants regarding the validity of the assignment or the defendants’ answer to the appeal. We also do not reach consideration of the issues raised by LHP regarding the factual findings of the trial court in this ease on the merits, its evidentiary objection that the trial court improperly considered parol evidence as to the scope and intent of the letter agreement, and its argument that the trial court erred in failing to include IF as a judgment debtor.

CONCLUSION

For the reasons stated above, we sustain the exception of no right of action filed by the defendants as to LHP and affirm that portion of the trial court judgment denying LHP’s claim against the defendants for the fee for obtaining financing. We reverse that portion of the trial court judgment ordering the defendants to pay LHP a fee of $2,240 for obtaining a waiver of the building permit fee. The grounds for the exception of no right of action cannot be removed by amendment to the petition. Therefore, all | ^claims by LHP against the defendants Roy Griggs, Ravish V. Patwar-dhan, M.D., and IF Enterprise of Shreveport, LLC, are dismissed. All costs in this court are assessed to the plaintiff, LHP.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . The designation "CED” ostensibly stands for certified economic developer.

      . On September 16, 2007, Bryan, on the same letterhead, had written to Griggs and Patwar-dhan describing possible enhancements and referenced enterprise zone, property tax exemption, community development block grant, new market tax credit, angel investor program, and federal government grant.

      . The reconventional demand filed by Griggs and Patwardhan asserted that Bryan’s violation of the loan brokers’ statute amounted to unfair trade practices entitling them to a reimbursement of fees as well as damages and attorney fees under La. R.S. 51:1915. Griggs and Patwardhan later asserted this same claim against LHP. These demands were denied by the trial court and are not before this court on appeal.

      . We note that the letter agreement was not signed by Bryan until November 28, 2007.

      . Again we note that Bryan did not sign the letter agreement until November 28, 2007.

      . Some examples of strictly personal obligations are legal malpractice claims, Taylor v. Babin, 2008-2063 (La.App. 1st Cir.5/8/09), 13 So.3d 633, writ denied, 2009-1285 (La.9/25/09), 18 So.3d 76; invasion of privacy claims, Tatum v. New Orleans Aviation Bd., 2011-1431 (La.App.4th Cir. 4/11/12), 102 So.3d 144, writ denied, 2012-1847 (La.11/9/12), 100 So.3d 838; and some non-competition agreements, Jeansonne v. El Hindy, 413 So.2d 999 (La.App. 4th Cir.1982).

      . Appellate courts review judgments and not reasons for judgment. Moreno v. Entergy Corp., 2012-0097 (La.12/4/12), 105 So.3d 40; Hickman v. Bates, 39,178 (La.App.2d Cir. 12/15/04), 889 So.2d 1249. The trial court denied recovery to LHP for the $54,000 financing fee, finding that Bryan did not actually obtain the loan for the defendants from RRB. We affirm that result, but for a different reason. We find that LHP could not recover for the financing fee because Bryan could not validly assign the letter agreement.