author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Darius JONES.
    No. 13-KA-367.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent J. Paciera, Jr., J. Brandon Kinnett, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Defendant, Darius Jones, was convicted of attempted armed robbery (count one) and possession of a firearm by a convicted felon (count two). Defendant was sentenced to 25 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for count one, to run concurrently with his 20-year sentence at hard labor without benefit of parole, probation, or suspension of sentence for count two. In this appeal, defendant challenges his conviction and sentence on count one for attempted armed robbery. For the following reasons, defendant’s convictions and sentences are affirmed.

On July 19, 2011, Tyrone Smith was a victim of a robbery at his residence at 612 Governor Hall Street in Gretna. Defendant knocked on Mr. Smith’s door and Mr. Smith invited him in because he knew defendant’s sister, Sheree Jones. Defendant asked Mr. Smith for money and when Mr. Smith told him no, defendant pulled out a gun and demanded the money. Defendant ran out of Mr. Smith’s house after he was given the money and was seen entering his sister’s apartment. Defendant was immediately apprehended coming out of Ms. Jones apartment. After obtaining consent from Ms. Jones to search her apartment for the weapon, the police located and retrieved the weapon used in the robbery.

[¡¡Defendant was charged with armed robbery in violation of La. R.S. 14:64 (count one) and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count two). A twelve-person jury found defendant guilty of the responsive verdict of attempted armed robbery on count one and guilty of possession of a firearm by a convicted felon on count two. The jury was polled, revealing the concurrence was ten of twelve for count one and was unanimous for count two. Defendant was sentenced to 25 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for count one, to run concurrently with his 20-year sentence at hard labor without benefit of parole, probation, or suspension of sentence for count two. His sentence was also ordered to run concurrently with any other sentence he may have been serving. This appeal followed.

Defendant contends that the non-unanimity instruction that resulted in the non-unanimous verdict of attempted armed robbery on count one was a violation of his due process and equal protection rights and thus, the trial court’s denial of his motion for new trial was in error. Defendant contends that subsequent developments in the jurisprudence call the five-vote judgment in Apodaca v. Oregon, into question, citing Blakely v. Washington, Apprendi v. New Jersey, and McDonald v. City of Chicago. Defendant contends that the Apodaca decision is incorrect.

Before trial, defendant filed “Motion to Declare Article 782(A) Unconstitutional Because it Allows for a Non-Unanimous Verdict in this Second |4Class Case.” The record does not contain a ruling on this motion. However, during the hearing on the post-verdict motions, defense counsel re-urged his motion regarding the non-unanimous verdict as to count one, stating that it had been previously denied by the court.

The defendant did not object to the jury charges, which included a charge regarding the concurrence of ten of the twelve jurors for a verdict on each count. Nevertheless, after the verdict was rendered, defendant filed a motion for new trial, which included an argument that the non-unanimous verdict was in violation of the constitution. The trial court denied the motion. Thus, the issue addressed in defendant’s motion for new trial is properly before this Court. See State v. Hammond, 12-1559 (La.App. 1 Cir. 3/25/13), 115 So.3d 513, 514 n. 3.

La. Const. Art. I, § 17A provides that a criminal case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” Additionally, La.C.Cr.P. art. 782A provides in part that “[cjases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” Defendant challenges his attempted armed robbery verdict, with a ten of twelve concurrence. Defendant’s confinement for the crime charged was necessarily at hard labor. See La. R.S. 14:64; La. R.S. 14:95.1. Therefore, under La. Const. Art. I, § 17A and La.C.Cr.P. art. 782A, ten of the twelve jurors were required to concur to render a verdict.

| sUnder both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the Sixth and Fourteenth Amendments to the United States Constitution. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238.

Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the Apodaca opinion numerous times since its issuance and its holding as to non-unanimous jury verdicts represents well-settled law. State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, 742. Defendant’s reliance on Apprendi, supra, Blakely, supra, and McDonald, supra, to support his proposition that the decision in Apodaca has been called into question and that a non-unanimous jury verdict violates his constitutional rights, is without merit.

This issue has been addressed by the Louisiana Supreme Court, this Court, and other appellate courts in this State, and all have held that a defendant’s reliance on recent post-Apodaca jurisprudence used to question the viability of a less than unanimous jury verdict ignores the holdings of the courts of this State. See State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238; State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 614, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

In Bertrand, supra, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. The Bertrand court also rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca. Id. at 742-43.

|fiIn Bertrand, the Louisiana Supreme Court reversed a district court ruling that La.C.Cr.P. art. 782 was unconstitutional, stating:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

Relying on Bertrand, the Louisiana Fourth Circuit Court of Appeal upheld the constitutionality of non-unanimous jury verdicts in State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-0934 (La.11/19/10), 49 So.3d 396, cert denied, _ U.S. _, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). The United States Supreme Court denied certiorari in Barbour, thereby declining to address the issue of non-unanimous jury verdicts.

In State v. Napoleon, supra, this Court recently addressed a defendant’s incorrect contention that Apodaca’s holding that non-unanimous jury verdicts do not violate the Constitution was called into question by Apprendi v. New Jersey, supra, and therefore, should no longer be followed by this Court. This Court explained:

[T]he defendant herein relies on the mention of unanimity in Apprendi, in which non-unanimous verdicts were not at issue. Apprendi involved reversal of the enhancement of a defendant’s sentence upon the trial judge’s post-verdict, factual finding that the crime committed was a hate crime, with such finding made by a mere preponderance of evidence. The unconstitutionality found by the Apprendi Court was criminal punishment for a post-trial finding of guilt of an additional element which had not been submitted to the jury, nor which required proof beyond a reasonable doubt. A superfluous mention of required unanimity made in the Court’s holding that all elements of a crime for which the defendant is punished must necessarily be proven to the jury beyond a reasonable doubt is not surprising, especially in a state (New Jersey) whose ^constitution requires a unanimous verdict. It cannot be construed to mean or predict that Apodaca is, or might soon be, overturned.

The issue before the court in Apprendi was whether the defendant could be sentenced to additional incarceration upon a finding of guilt of an additional element of the crime by a judge after discharge of the jury, and by proof less than beyond a reasonable doubt. Clearly the New Jersey statute in Apprendi was unconstitutional, but the unconstitutionality had nothing to do with non-unanimous verdicts, which were not at issue in Apprendi. The insignificant reference to the requirement of a unanimous verdict was simply because New Jersey’s Constitution requires unanimous verdicts, and therefore a verdict on the additional element of the crime used to enhance the possible penalty also had to be decided by a unanimous jury, and not by the presiding judge. This Court therefore concluded that “the contention that recent post-Apodaca jurisprudence establishes a right to unanimous jury verdicts in all criminal cases is without merit,” and we found no merit in the defendant’s assertion that the trial court erred in charging the jury that a verdict of at least ten of twelve jurors was sufficient to reach any verdict. Id.

In State v. Mitchell, 11-1018 (La.App. 5 Cir. 6/28/12), 97 So.3d 494, the defendant acknowledged the precedent of Apodaca but argued that subsequent developments in the Supreme Court’s jurisprudence called the holding into question, citing Blakely v. Washington and McDonald v. City of Chicago, supra. This Court determined that the United States Supreme Court did not overturn Apodaca in either Blakely or McDonald, and quoting McDonald: “ ‘The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials.’ ” (McDonald, 130 S.Ct. at 3035 n. 14, 130 S.Ct. 3020) (emphasis omitted). This Court in Mitchell found that the defendant’s assigned error was without merit after considering that the United States Supreme Court and the Louisiana Supreme Court have held that a unanimous jury verdict is not required in state criminal trials. See also State v. Jackson, 12-0090 (La.App. 4 Cir. 4/24/13), 115 So.3d 1155; and State v. Santos-Castro, 12-0568 (La.App. 4 Cir. 7/31/13), 120 So.3d 933.

Although defendant acknowledges that the Supreme Court and this Court have recognized the continued viability of La. C.Cr.P. art. 782, he argues that the holding in Apodaca is incorrect. This Court also recognized in Mitchell, supra, that as an intermediate appellate court, this Court is obliged to follow the precedent established by the Louisiana Supreme Court, noting that this Court has consistently followed the Louisiana Supreme Court’s jurisprudence on this issue. Accordingly, we find that the trial court did not err in denying defendant’s motion for new trial.

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Only the following errors patent require corrective action.

The commitment lacks clarity as to the sentences imposed. The commitment reflects that the sentence was ordered to be served without benefit of parole, probation, or suspension of sentence. However, the commitment does not clearly reflect, as does the transcript, that both sentences were imposed without the benefit of parole, probation, or suspension of sentence. We remand the matter and order the trial court to correct the commitment to specify that each sentence is to be served without benefit of parole, probation, or suspension of sentence. See State v. Wilson, 12-819 (La.App. 5 Cir. 5/16/13), 118 So.3d 1175, 1179. We further direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced and to the Department of Correction’s Legal Department. See La.C.Cr.P. art. 892B(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Further, the commitment reflects that defendant’s sentences were also ordered to run concurrently “with any other sentence.” However, the transcript more specifically reflects that his sentences were ordered to run concurrently “with any other sentence you may be serving.” The commitment reflects a more open-ended statement regarding running the sentence concurrently “with any other sentence.” Thus, we remand the matter for correction of the commitment in accordance with La. C.Cr.P. art. 892B(2) and State ex rel. Roland v. State, supra. See State v. Nelson, 09-807 (La.App. 5 Cir. 3/23/10), 39 So.3d 658, 666.

For the reasons stated above, we affirm defendant’s convictions and sentences and remand for corrections in compliance with this opinion. We further order that, in addition to the record copy, a separate copy of this opinion be delivered to the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

CONVICTIONS AND SENTENCES AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . The parties stipulated to the defendant's pri- or conviction at trial. Defendant does not raise any assignments of error as to his conviction and sentence on count two.

      . We find that to the extent defendant is attempting to make an argument regarding his equal protection rights that was not previously made, any such argument has not been preserved for appellate review. La.C.Cr.P. art. 841 A.

      . Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

      . The record contains an unsigned show cause order attached to this motion.

      . The constitutionality of a statute cannot be raised for the first time on appeal; it must be presented first in the trial court. State v. Oliver, 03-416 (La.App. 5 Cir. 12/29/09), 30 So.3d 946, 951, writ denied, 10-0271 (La.9/17/10), 45 So.3d 1041, citing Williams v. State, Dept. of Health and Hospitals, 95-0713 (La.1/26/96), 671 So.2d 899, 901.

      .On appeal, both parties concede that the record does not indicate that the trial court ever directly addressed defendant's motion prior to trial.

      . Id. at 743.

      . Napoleon, 119 So.3d at 246.

      . Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael VIDEAU.
    No. 13-KA-520.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Rachel Africk, Edward C. Milner, III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Michael Videau, In Proper Person, Angola, LA, Defendani/Appellant, In Proper Person.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

| ¡¡Defendant, Michael Videau, appeals his convictions on seven counts of sex crimes against five child victims, as described below. On appeal, his appointed counsel argues that defendant’s constitutional right to confront his accusers was violated at trial by the admission of the video-taped interview of one of the child victims without appellant being able to effectively confront and cross-examine her. Defendant also filed a pro se supplemental brief, wherein he argues that the evidence adduced at trial was insufficient to convict him of the offenses, that he was denied his right to a proper judicial review on direct appeal because the appellate record is incomplete, and that his appointed appellate counsel was ineffective.

After thoroughly reviewing the entire record, including a supplemental record, we find no merit to the assignments of error urged. Accordingly, defendant’s convictions and sentences are affirmed. The matter is remanded to the trial court for compliance with the instructions set forth in our errors patent review.

| ¿PROCEDURAL HISTORY

On May 3, 2012, a Jefferson Parish grand jury indicted defendant with aggravated rape upon a known female (DOB: 3/9/1987), in violation of La. R.S. 14:42 (Count 1); aggravated oral sexual battery upon a known female (DOB: 3/9/1987), wherein the victim was under the age of 12, in violation of La. R.S. 14:43.4 (Count 2); molestation of a known juvenile (DOB: 3/9/1987), being two years older than the known juvenile, in violation of La. R.S. 14:81.2 (Count 3); aggravated rape upon a known juvenile (DOB: 4/16/2007), particularly penile/oral sexual intercourse and/or oral/vaginal sexual intercourse, in violation of La. R.S. 14:42 (Count 4); indecent behavior with a known juvenile (DOB: 5/1/2006), wherein there is an age difference of greater than two years between the two persons, and the victim is under the age of 13, in violation of La. R.S. 14:81 (Count 5); sexual battery upon a known juvenile (DOB: 10/14/2002), wherein the victim was under the age of 13, in violation of La. R.S. 14:43.1 (Count 6); and sexual battery upon a known juvenile (DOB: 9/28/2004), wherein the victim was under the age of 13, in violation of La. R.S. 14:43.1 (Count 7).

At his arraignment on June 20, 2012, defendant pled not guilty to all charges. On August 2, 2012, the trial court granted defendant’s request to view the statements of the victims. On January 8, 9, and 10, 2013, the ease was tried before a 12-per-son jury. On January 10, 2013, the jury found defendant guilty of the responsive verdict of sexual battery on Count 1, guilty as charged on Counts 2, 3 and 4, guilty of indecent behavior with a juvenile on Count 5, and guilty of sexual battery on Counts 6 and 7.

|,¡¡On January 30, 2013, defendant moved for a new trial on the grounds that the trial court had erred in denying his objection to the introduction of the video interviews of the victims. In particular, defendant argued that the video statements of the victims violated his constitutional right to confrontation because witness J.S.L. would only testify that defendant “did bad things” and that she “did not remember” what the “bad things” were. Defendant also argued that the testimony was contradictory in that the witnesses’ statements conflicted with each other and with themselves. Following a hearing held on February 4, 2013, defendant’s motion for a new trial was denied.

After waiving sentencing delays, defendant was sentenced on February 4, 2013 as follows: 10 years imprisonment at hard labor on Count 1; 20 years imprisonment at hard labor on Count 2; 15 years imprisonment at hard labor on Count 3; life imprisonment at hard labor on Count 4; 25 years imprisonment at hard labor on Count 5; and 99 years imprisonment at hard labor on each of Counts 6 and 7. The trial court ordered that all counts be served concurrently with each other. The court also ordered that Count 4 be served without the benefit of parole, probation, or suspension of sentence. On that same date, defendant filed a written motion for an appeal in open court, which was granted.

FACTS

This appeal concerns several different charges of sexual abuse affecting five different victims: T.L. (DOB: 3/9/1987; Counts 1, 2, and 3), who is also the mother of victims J.S.L. (DOB: 5/1/2006, Count 5) and J.L. (DOB: 12/16/2007, Count 4); I.L., (DOB: 9/28/2004, Count 7), and H.J. (DOB: 10/14/2002, Count 6).

Defendant had been married to Karen Videau since 1990. At the time Mrs. Vi-deau married defendant, she had four children: two girls, A.L. and C.L.M., and Ifitwo boys. A.L. had a daughter, I.L. (the victim in Count 7), who was 8 years old at the time of trial. C.L.M. also had a daughter, H.J. (the victim in Count 6), who was 10 years old at the time of trial. Also, Mrs. Videau’s godchild, T.L. (the victim in Counts 1, 2, and 3, and the mother of the victims in Counts 4 and 5), lived with the Videaus when she was a child. Thus, the victims in this case are the “step-goddaughter” of defendant, her two children, and two step-granddaughters of defendant.

T.L., who was 25 years old at the time of trial, testified that she is the goddaughter of Karen Videau, and lived with her and defendant from the time she was around two until she was approximately nine, when she returned to her mother, and then again in high school until her senior year. She testified that when she was between the ages of six and nine, defendant sexually abused her using digital vaginal contact and hand to vaginal area on multiple occasions, both at home and in his truck. She also testified that one time defendant sexually abused her using oral sexual contact, vaginal area to mouth. T.L. further testified that one other time, defendant sexually abused her using penis to vaginal contact. She said that defendant did not sexually abuse her when she was in high school. T.L. testified that she never told anyone about these incidents because she was afraid of the impact it would have on her family.

As an adult, T.L. lived in California with her two young daughters, but moved back to Jefferson Parish with her daughters when they were three and four years old. She testified that she moved back in with defendant and her godmother because she believed defendant had changed, because he was now a deacon in his church. She also felt that his attitude had changed.

At trial, T.L. testified that on January 4, 2012, while looking for J.S.L. in order for her to take her bath, she walked in the open doorway to defendant’s room |7and saw defendant rubbing J.S.L.’s “booty” “like a grown woman.” T.L. testified that defendant was lying in his bed with J.S.L. sitting on top of him and straddling his lower stomach. The lower half of both J.S.L.’s and defendant’s bodies were underneath the bed sheets, and defendant was not wearing a shirt. T.L. was unable to determine whether defendant was wearing pants underneath the bed sheet. J.S.L. had clothes on and was wearing shorts.

T.L. testified that defendant jumped when she called J.SJL.’s name. T.L. brought J.S.L., along with J.L., to the bathroom and asked J.S.L. what defendant had been doing. T.L. testified that J.S.L. was hesitant at first, but then stated that defendant was “rubbing her butt.” T.L. asked J.S.L. and J.L. whether defendant had done anything else to them. T.L. testified that J.L. began crying and appeared “scared out of her mind” as if she were in trouble. T.L. testified that J.S.L. disclosed to her that defendant made J.L. “suck his wiener.” T.L. testified that when first asked, J.L. did not say anything; however, after T.L. asked her again, J.L. disclosed that defendant made her “suck his wiener.”

T.L. immediately informed Mrs. Videau of J.S.L. and J.L.’s disclosures. Mrs. Vi-deau called defendant for an explanation. Mrs. Videau and T.L. both testified that defendant stated that he and J.L. were wrestling or “horsing around.” T.L. testified that defendant stated that J.L. bit defendant’s penis.

On January 4, 2012, deputies were called to the Videau residence. Defendant was then transported to the detective bureau for questioning. After midnight, Detective Kay Horne of the Jefferson Parish Sheriffs Office (“JPSO”) advised defendant of his rights and informed him that he was under investigation for aggravated rape. Defendant made two statements that night. In his first statement, defendant said that he was lying in the bed watching television, when |sJ.S.L. jumped on his stomach and asked him for ice cream. Defendant said that J.S.L. was straddling him on his stomach, that he was under the bed sheet, and J.S.L. was partly under the sheet. He stated that when T.L. entered the room, he was lifting J.S.L. off of him to give her some pecan candy. Defendant stated that J.S.L. was wearing clothes, and he grabbed her around her waist and hip area to get her off of him. He denied touching J.S.L. on her buttocks area.

In this statement, defendant stated that T.L. accused him of molesting J.L. and J.S.L., and she also accused him of molesting her when she was a child. He said that he explained that he kissed T.L. and held her as they slept. Defendant also denied that J.L. had his penis in her mouth. He explained that when he and J.L. were wrestling, J.L. fell on the floor, and she bit and pulled defendant’s shorts. Defendant stated that J.L. bit his inner thigh close to his penis. He said that when J.L. bit his groin, J.S.L. said that J.L. had defendant’s penis in her mouth, and he told her not to say that because someone might misunderstand.

Detective Horne testified at trial that based on her knowledge and experience, she determined that defendant’s answers were not entirely honest. She testified that while verifying things with the mother and children, another incident was disclosed concerning defendant licking J.L.’s vaginal area, which led Detective Horne to question defendant again and take a second statement. In his second statement, defendant denied licking J.L. intentionally on the vaginal area. Defendant explained that he blew on J.L.’s belly button, and that his face may have touched her unintentionally. He also said that J.L. may have assumed that he was licking her and that it might have happened in her mind. Defendant denied touching either child on their private parts with his tongue.

| ¡¡Following these disclosures on January 4, 2012, Mrs. Videau called her daughter, C.L.M., to find out if defendant had ever touched C.L.M.’s daughter, H.J., who had lived with the Videaus for several years following Hurricane Katrina. C.L.M. testified that she asked H.J. whether defendant had touched her anywhere including her chest, “butt,” or “private area,” to which H.J. responded in the negative. C.L.M. testified that she never told H.J. the reason she had asked her whether defendant had touched her.

Nevertheless, H.J. later disclosed on March 24, 2012 that defendant had touched her inappropriately. This disclosure was prompted by I.L.’s disclosure on the same day that defendant had also touched her inappropriately. On that day, Deputy Nicki Gamier of the JPSO responded to a 911 call from 1448 Dogwood Drive in reference to a possible sexual battery. Deputy Gamier questioned H.J. with his supervisor, Detective Jay Clofer, and Mrs. Videau being present. He testified that when he asked H.J. what was wrong, she responded that her grandfather had touched her private area. Deputy Gamier said that H.J. was crying and very upset. Deputy Gamier testified that H.J. disclosed that from the time she was six years old, every time she returned home from church, her grandfather touched her while her grandmother took a nap. He testified that H.J. stated that her grandfather touched her between her legs underneath her underwear on her bare skin. After Hurricane Katrina, H.J. lived with Mrs. Videau and defendant for several years until her mother moved back to New Orleans. After her mother’s return, H.J. would still visit on weekends and sleep over on Saturday nights in order to attend church with Mrs. Videau and defendant on Sunday mornings, during which times the abuse occurred. Her trial testimony was substantially the same.

ImOn April 5, 2012, Suzanne Jolisant, a forensic interviewer with the Children’s Advocacy Center (“CAC”), interviewed H.J. at the CAC. In her medical examination, the CAC interview and at trial, H.J. described substantially the same sequence of events. H.J. would spend the night at Mrs. Videau and defendant’s house on Saturday nights in order to attend church with them on Sunday mornings. She testified that defendant touched her “private part” on her skin under her clothes and panties.

H.J. testified that the last time defendant touched her was in December on the last day of Kwanzaa (a week-long African heritage celebration). She testified that there was a party at Mrs. Videau’s house, and after everybody went home, defendant touched her like he would normally touch her with his hand on her private part on her skin. She testified that she did not tell anyone about this because she did not want to get in trouble.

H.J. testified that the first people she told about the touching were the two police officers who came to the house, including Detective Horne. She testified that after Mrs. Videau told her to tell the truth, she made the disclosures to the police officers because she did not want to get in trouble, and she felt she had to get it off of her chest. She testified that she told the police officers the truth, and everything she said in court that day was the truth. H.J. testified that she did not know what had happened to J.L. and J.S.L., and they never told her anything. She also testified that defendant never “whooped” her.

Deputy Gamier testified that he next questioned I.L. and observed that she was “hysterical” and crying. I.L. (the daughter of Mrs. Videau’s other daughter), lnwho was eight years old at the time of trial, testified that defendant sexually abused her using digital vaginal contact, hand to vaginal area, more than once. The record indicates that I.L. would often visit Mrs. Videau and defendant after school and on weekends and holidays, when the abuse occurred.

These new allegations against defendant were referred to Detective Horne, who continued to have an open investigation on defendant after his previous arrest in January of 2012. Detective Horne interviewed I.L. and H.J. separately at the detective bureau. After speaking to I.L. and H.J., Detective Horne referred both I.L. and H.J. to Children’s Hospital and the CAC.

On April 5, 2012, Ms. Jolisant interviewed I.L. at the CAC. In her medical examination, CAC interview, and at trial, I.L. described substantially the same sequence of events. I.L. testified at trial that while in defendant’s bedroom, defendant touched her with his hand on the body part she used to urinate. I.L. testified that when defendant touched her, she and defendant were in defendant’s bed. She testified that defendant touched her skin under her clothes and panties. I.L. testified that after defendant touched her, she left the room. She testified that similar incidents happened more than once. In her CAC interview, I.L. stated that she was six years old when defendant touched her, and defendant was still touching her when she was seven years old. I.L. testified that defendant told her not to tell anyone.

On cross-examination, I.L. testified that when defendant touched her, no one else was in the bed. She testified that she remembered telling Dr. Jackson that J.L., H.J., and J.S.L. were also in the bed with her. I.L. testified that although she and defendant were on opposite sides of the bed, defendant was able to touch her | ^because she switched with J.S.L., and defendant touched her after she moved. I.L. testified that defendant would “whoop” her, J.L., H.J., and J.S.L. if they •told.

I.L. testified that her mother talked to her about what happened with J.L. and J.S.L., and she admitted to telling her mother that defendant had never touched her. She testified that she did not know why she told her mother that. I.L. testified that she was telling the truth when she disclosed to Mrs. Videau that defendant had touched her.

Dr. Jaime Jackson, a child abuse pediatrician at Children’s Hospital, who was qualified as an expert in the field of child abuse pediatrics, performed medical examinations on J.S.L., J.L., and I.L. soon after their disclosures. Dr. Jackson testified that all of the examinations revealed normal findings non-specific for sexual abuse. She said that she would not expect to have physical findings based on the substance of the complaints. She testified that children with possible sexual abuse have normal or non-specific genital exams 90 to 95 percent of the time, which could occur for many different reasons.

Although Dr. Jackson did not examine H.J., who was examined by a different medical professional, Dr. Jackson testified that she reviewed HJ.’s medical records. Dr. Jackson testified that during the history portion of the exam, H.J. disclosed to a nurse practitioner a history of sexual abuse by defendant involving digital vaginal contact on more than one occasion. Dr. Jackson testified that H.J.’s physical examination was consistent with her complaint history. She testified that H.J. had non-specific or normal findings.

Dr. Jackson also testified that delayed disclosure is very common, and that most of the time, the children she had examined have waited a long time before disclosing the incident. She testified that a majority of children are unlikely to disclose abuse for at least a month to a year, and some studies have shown an |13average of five years. Dr. Jackson testified that this delayed disclosure is consistent with the ages of the children in this ease. In addition, she testified that J.S.L. and I.L. both stated that defendant said he would “trip them” or “whoop them” if they attempted to tell their grandmother.

In addition to the testimony of the foregoing witnesses, the State also presented the testimony of D.H. to establish defendant’s intent as per La. C.E. art. 412.2. D.H. testified that defendant molested her when she was a child. She provided that defendant was previously married to her cousin, Darleen Walker. D.H. testified that she was 42 years old at the time of trial and that Ms. Walker was seven to ten years older than her. D.H. testified when she was about seven or eight years old, she would spend the night or visit Ms. Walker and Mr. Videau when they lived in Christopher Homes in Algiers.

D.H. testified that when she was seven or eight years old, one incident occurred during a car ride with defendant. D.H. testified that defendant was lying on the seat, and then defendant put his mouth in her vagina. D.H. testified that defendant also put his penis in her vagina. She testified that defendant then asked her which she liked better, the first or the second thing. D.H. testified that she told defendant she liked the first thing better because it did not hurt as much. D.H. testified that defendant told her not to tell anyone, and she did not say anything to Ms. Walker when they returned to the house.

D.H. testified that she did not tell anyone about this incident because defendant was in her family, and being a little girl, she did not know that what had happened was wrong. D.H. testified that there was another incident, when she was 114lying on the floor of the house, and defendant was sitting on the floor rubbing her back. D.H. testified that Ms. Walker became angry at defendant.

D.H. testified that the first person she disclosed the sexual abuse to was her grandmother, who has since died. D.H. testified that when she told her grandmother, she was in middle school and was about 12 or 13 years old. She testified that she delayed disclosure because everything went on “as business as usual.” D.H. also testified that she thought that it was normal because she had heard about similar incidents in her family. D.H. testified that she finally had the courage to disclose to her father in 2010 by writing him a letter. D.H. testified that in early 2012, her father sent her a newspaper clipping about defendant having been arrested. She testified that at the time, she was living in Virginia, and her father was living in Gretna, Louisiana. D.H. testified that she contacted the newspaper reporter, who referred her to the District Attorney’s office. D.H. testified that she did not know Mrs. Videau or any of the victims in the present case.

Ms. Walker testified on behalf of the defense that she was married to defendant for nine years, and D.H. was her first cousin. She testified that when D.H. was about seven or eight years old, she visited her house about two or three times during her marriage to defendant. Ms. Walker testified that D.H. never mentioned being molested by defendant. Ms. Walker also repudiated D.H.’s claims that defendant beat Ms. Walker. Ms. Walker did not believe that the defendant ever molested or raped D.H.

Defendant called several witnesses who all testified that defendant had a good reputation in the community and within his church. Elvin Collins, a deacon at Second New Pleasant Zion Baptist Church, testified that defendant was helpful, trustworthy, and had a good reputation at the church, as did Beverly Thomas, who 11Bworked at the church, and Reverend Alex Cotton, pastor of the church. Ruth Molaison testified that she had known defendant for 37 years and worked with defendant’s mother. Ms. Molaison testified that although she and defendant attended different churches, they visited one another’s churches. She testified that defendant had an excellent reputation within the community.

Defendant testified in his own defense. He denied the allegations that he had ever sexually touched any of the victims, including D.H. He explained all of the incidents for which he was under indictment as either horseplay or wrestling, or an act that had happened unintentionally. For example, in reference to the incident where J.S.L. said he licked her vagina, he explained that he had blown “raspberries” on her stomach and perhaps his face was too close to her private area.

Defendant denied J.S.L.’s allegation that he had put his penis in J.L.’s mouth and testified that that did not happen. He testified that J.S.L. made the allegation because of an incident the next day when he walked into his room and found J.S.L. and J.L. jumping on his bed. He testified that he grabbed J.L. and pulled her off the foot of the bed. Defendant testified that when J.L. came down, she bit at him and grabbed at him. He testified that when he pulled J.L.’s head back, she had his shorts in her mouth. Defendant testified that he pulled his shorts out of J.L.’s mouth. He testified that J.S.L. said that J.L. was “sucking” his “thing,” and he told J.S.L. not to say that. He testified that he explained to J.S.L. that .if anyone heard her, they would misunderstand and he would get in trouble. Defendant testified that the interaction was not intentional.

Defendant testified that it was a very emotional scene in early January that led to him being in the police station. He testified that T.L. appeared upset, but did not appear to be faking her anger, or to be unauthentic when she accused defendant of the charges. Defendant testified that T.L. was accusing him of hurting her baby 116and that any mother would react in that way. He testified that he did not know T.L.’s motives. Defendant testified that while they were discussing the allegations, T.L. broke down and started talking about when she was young.

Defendant denied T.L.’s allegations and testified that he did not put his penis in T.L.’s vagina, lick her vagina, or touch her vagina and private parts. Defendant testified that until 2011, and during the times T.L. lived with them, he was a regional truck driver and was home only around four days per month. Defendant testified that he never brought T.L. in the truck to have oral, or penile to vaginal, sex with her, or to molest her in anyway.

Defendant indicated that T.L. may have been led to making these allegations against him by an altercation they had in 2005 when she was in high school living in his house. Defendant, Mrs. Videau, and T.L. all described an incident where T.L. and defendant got into a physical fight over a disagreement they had at the house, which resulted in T.L. moving out.

Defendant testified that when I.L. and H.J. both made the allegations that defendant touched their genitals, he was in jail, and he first became aware of those allegations as he was being booked. Defendant testified that he often interacted with the children, and he never did anything inappropriate to any of them. Defendant testified that H.J. and I.L. were both lying and made up their allegations, which were not authentic. Defendant testified that although H.J.’s testimony was emotional, and he saw her tears, H.J. put on a show during her testimony, the CAC interview, and the medical examination.

Defendant testified that D.H. visited him when she was a child; however, he denied all of D.H.’s allegations. He testified that he never “beat” Ms. Walker to force her to allow him to take D.H. in his car. He testified that of the six females |17who came forward stating that that he sexually abused them when they were all under ten years old, two of them were mistaken, and the others were lying.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Sufficiency of the evidence

In his first pro se assignment of error, defendant argues that the evidence introduced at trial, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove all elements of the offenses beyond a reasonable doubt. In particular, defendant argues that if the testimony is internally inconsistent or is in conflict with the physical evidence, then the testimony should not be relied upon in upholding the conviction. Defendant asserts that as the testimony is “so incredible,” it should merit review and ultimate acquittal under the Jackson standard. Defendant argues that there was reasonable doubt as to the validity of the allegations because of the inconsistencies in the victim’s statements and testimony at trial and the lack of any physical evidence to support any of the allegations. He also argues that each witness’s testimony was uncorroborated. Defendant asserts that due to the witnesses’ lack of credibility, the State failed to prove the elements of the offenses beyond a reasonable doubt.

In reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, 164-65. A review of the record 11sfor sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Lampkin, supra.

In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction. Furthermore, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Id. (citing State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied sub nom., State ex rel. Dixon v. State, 08-0987 (La.1/30/09), 999 So.2d 745). It is presumed that jurors consider discrepancies in testimony in assessing credibility and weight of testimony. It is not the appellate court’s function to reevaluate the credibility choices made by a properly instructed jury. Id., 119 So.3d 158 at 166.

In his pro se brief, defendant disputes the credibility of the victims’ testimony. Defendant specifically argues that T.L.’s testimony that she saw him rubbing her daughter’s “booty” under the sheet should not be believed because T.L. did not react appropriately, i.e., by “screaming” when she saw it. He further argues that she could not have seen under the sheet. He argues that the only reason she took the child in another room was to coach the child’s answer, not to find out what was happening.

Defendant also disputes that T.L. was telling the truth about the alleged sexual abuse when she herself was a child. Defendant argues in brief that her testimony should not be believed because she waited so long to tell about it, when 113she could have called the police when she was a child. He argues in brief that she cannot be believed because she moved back in with him when she was an adult. He argues that because she is a liar, her daughters are also.

Defendant further argues that J.S.L. was coached about what to say at trial, but that frequently in her testimony, she either didn’t know what happened, forgot what happened, or repeated something that someone else told her, such as that he also abused her mother when she was a child. As such, he argues, her testimony was not credible.

Regarding the testimony of H.J., defendant argues that her testimony at trial should not be believed because when her mother C.L.M. first asked her if defendant had ever touched her, she denied it. Defendant argues that her first answer to her mother should be regarded as more credible than her trial testimony. Regarding the testimony of I.L., he argues that her claims are suspect because she admitted the allegations of sexual abuse only after she heard her mother and aunt screaming about it. Defendant argues that this case is about one family member starting something and everyone else joining in.

As noted above, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Defendant does not argue that the victims’ testimonies, if believed, did not establish the elements of each offense, but rather argues that their testimonies are not believable for the reasons he stated above. The jury heard the testimony of all of the victims (except for J.L., who did not testify), all of whom were subject to cross-examination, and determined that they made credible witnesses. In the case of the child victims, except J.L., the jury heard their testimonies, as well as their CAC taped interviews, and reports of their discussions with the health care | ^professionals who physically examined them (through the testimony of Dr. Jackson). The jury was fully aware of any alleged inconsistencies in their testimonies, and still found that the witnesses were credible. There is no evidence that any child was coached in her testimony.

Defendant argues that the physical evidence, ie., the results of the children’s medical examinations as reported by Dr. Jackson, does not support their allegations. However, Dr. Jackson testified that children with possible sexual abuse have normal or non-specific genital exams 90 to 95 percent of the time. She also explained that she would not have expected to have physical findings based on the substance of their complaints.

In State v. Roca, 03-1076 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-0583 (La.7/2/04), 877 So.2d 143, the defendant argued on appeal that the evidence was insufficient to support his conviction of aggravated rape, aggravated rape of a juvenile, oral sexual battery of a juvenile, and molestation of a juvenile upon multiple victims. At trial, the victims testified about the sexual acts they were each forced to engage in with the defendant. Id., 866 So.2d at 875-76. Notwithstanding the lack of medical evidence, this Court found the testimony of the victims was sufficient to support a finding of guilt. Id.

As Dr. Jackson testified, the physical evidence in the instant case is not inconsistent with the testimony from the victims. We find that the testimonies of the victims presented no internal contradiction or irreconcilable conflicts with physical evidence presented in this case.

Defendant complained that the testimonies of witnesses T.L., I.L., and H.J. should be discredited because they delayed disclosure of the abuse, and in the case of I.L. and H.J., denied it when first asked, but later admitted it. However, as 12inoted above, Dr. Jackson testified that delayed disclosure was both common for child victims and consistent with the ages of the victims. Her testimony was uncon-tradicted. Accordingly, the jury heard expert testimony that delayed disclosure does not, in and of itself, discredit the testimony of a victim who discloses the abuse well after it occurs. We find no merit to defendant’s assignment of error in this regard.

Defendant further argues that the children’s testimony about their good grades in school, as well as the lack of evidence regarding any behavioral changes, shows that he did not commit the crimes. He theorizes in brief: “We all know that kids this age that are sexually abused as the victims alleged by any adult, will have a change in their behavior, but this wasn’t the case with any of these victims, and this court should find that strange.” Defendant’s theory in this regard is not supported by any evidence, expert or otherwise. We find no merit to this assertion.

Viewing the foregoing evidence in the light most favorable to the prosecution, we find that any rational trier of fact would have found that the State proved, by sufficient evidence, beyond a reasonable doubt that defendant committed the sexual offenses for which he was convicted. Defendant’s pro se assignment of error number one is without merit.

COUNSELED ASSIGNMENT OF ERROR

Confrontation Clause violation

In his only counseled assignment of error, defendant argues that his constitutional right to confront his accusers was violated by the admission of J.S.L.’s video-taped interview without defendant being able to effectively confront and cross-examine her. He argues that he was denied the opportunity to confront J.S.L. about the contents of the forensic videotape due to J.S.L.’s refusal or inability to answer any questions asked by the State or by the defense regarding the | ^.particulars of the charged offenses committed against her or J.L. Defendant asserts that J.S.L.’s videotaped interview was the critical evidence offered to support the aggravated rape count committed against J.L., who did not testify herself due to her age.

Defendant asserts that the videotaped interview should not have been admitted because La. R.S. 15:440.5(A)(8) requires the witness to be available to testify at trial in order for the video to be admissible. Defendant argues that J.S.L.’s inability or refusal to answer any pointed questions regarding defendant’s alleged sexual assault against her or J.L. made J.S.L. essentially “unavailable” to testify at trial.

Defendant notes that the special procedures for protecting children who are victims of abuse contain strict requirements that are to be followed with exactitude in order to ensure that the rights of defendants to confront adverse witnesses and test the reliability of their testimony are not compromised. Defendant asserts that during her testimony, J.S.L. was not questioned about the videotape in the presence of the jury, did not adopt its contents, and did not vouch for its truthfulness. Defense counsel asked J.S.L. questions regarding what happened to her and what she saw happen to J.L. Though she was able to state where it happened and describe other situational facts, she would not say what defendant did to her, replying more than once that she “forgot” what the “bad stuff’ was that defendant allegedly did to her. Defendant argues that this error was not harmless, and no juror could hear J.S.L.’s videotaped statement describing the alleged acts without it affecting their consideration of the rest of the evidence against defendant. ^Defendant argues that his convictions and sentences should be reversed, and he should be retried on all counts.

The State argues that defendant is precluded from raising this claim on appeal because he failed to raise it in the trial court. The State asserts that defendant never argued at trial that the admission of J.L.’s videotaped interview violated his rights under the Confrontation Clause when J.S.L. was unable to remember details of the crime. The State argues that instead defendant made a “general objection” to the video-taped interviews. The State asserts that defense counsel’s objection was based on the inability to cross-examine when the videotapes were played and that the videotapes were contradictory to other statements. The State argues that the new basis that the witness’s inability to remember details of the crime made her unavailable cannot be raised for the first time on appeal.

The State also argues that defendant’s assignment of error has no merit. The State asserts that defense counsel cross-examined J.S.L. regarding her inability to recall many details of the crime. The State argues that J.S.L.’s inability to recall many of the details of the crime was not a statutory violation and did not deny defendant’s constitutional rights to confrontation. The State notes at the time of trial, J.S.L. was six years old and was attempting to recall traumatic events that had occurred from 2011 through 2012. The State asserts that J.S.L. was able to answer certain questions about the night in question. The State argues that J.S.L.’s inability to recall details of the crimes in question goes to the weight of the evidence before the jury and not the admissibility of the videotape. The State asserts that it met the statutory requirements of La. R.S. 15:440.5.

Upon review, we find that defendant failed to preserve his right to appeal the inadmissibility of the videotape on the grounds that J.S.L.’s unresponsiveness 124during her testimony rendered her “unavailable” as per La. R.S. 15:440.5 and the Confrontation Clause. La.C.Cr.P. art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.C.Cr.P. art. 841(A) requires a party to make known to the court “the action which he desires the court to take, or of his objections to the action of the court, and the grounds thereof.”

In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. State v. McClain, 04-98 (La.App. 5 Cir. 6/29/04), 877 So.2d 1135, 1144, writ denied, 04-1929 (La.12/10/04), 888 So.2d 835 (citing La.C.Cr.P. art. 841). A new basis for an objection may not be raised for the first time on appeal. Id. (citing State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849). The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. Id.

In McClain, on appeal from his conviction for indecent behavior with a juvenile, the defendant argued that the introduction of the videotaped interview of the victim at trial was error because at trial, she refused to testify about the incident. At trial, however, the defendant objected to the introduction of the videotape on the ground that it was premature as the victim had not been called to testify. After the State responded that the witness would testify, the trial court admitted the tape into evidence and played the tape for the jury. In the videotaped interview, the victim described the circumstances and the acts committed by the 125defendant in detail. However, at trial, the victim selectively testified about the day of the incident and stated that she did not remember much. She further testified that she did not remember the defendant doing anything to her.

Defense counsel cross-examined the victim; however, he did not inquire into the incident. At the conclusion of the victim’s testimony, the defendant failed to renew or lodge a new objection to the admissibility of the videotape. Prior to resting, the State sought to admit all of the exhibits including the previously admitted videotaped interview. The defendant again failed to renew his objection to the admissibility of the videotape.

In ruling on the assignment of error, this Court found that the defendant never objected to the admissibility of the videotape on the basis of the victim’s unavailability at the trial court level. This Court further stated that the defendant failed to assert during or after the victim’s testimony that the victim was an unavailable witness due to her responses, and the defendant failed to suggest that defendant was unable to effectively cross-examine the victim. Therefore, this Court found that this issue was not preserved for appellate review because the defendant was raising a new ground for his objection on appeal that was not raised at the trial court.

In the present case, defense counsel made a “general objection” to the showing of the CAC videotaped interviews of J.S.L., H.J., and I.L. in globo. He raised this objection on the grounds that he was unable to cross-examine the videotaped statements, and the videotaped statements were contradictory to other statements. When the State sought to admit the videotapes and play them for the jury, defense counsel stated that his previous objection was a continuing objection.

Similar to McClain, supra, defense counsel in the present case failed to renew his objection during or after J.S.L.’s testimony and failed to lodge a new [ 2r,objection based on the ground that she was an unavailable witness due to her unresponsiveness. Defendant again failed to renew his objection to the admissibility of the videotape when the State sought to admit all of the exhibits, including the previously admitted videotaped interview of J.S.L. prior to concluding its case.

Defendant never objected to the admissibility of the videotape on the basis of the victim’s unavailability at the trial court level until after the verdict, contrary to the provisions of La.C.Cr.P. art. 841(A). Not until his motion for a new trial did defendant first object to the introduction of the videotaped interview on the ground that J.S.L. was unavailable due to her unresponsiveness at trial. Accordingly, defendant is barred from review of this issue on appeal.

PRO SE ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

Incomplete record on appeal

Ineffective assistance of appellate counsel

Defendant argues that several parts of the trial were not transcribed and made part of the appellate record. In particular, defendant argues that the appellate record is missing the opening and closing arguments, the jury charges, bench conferences and other off-record discussions, and the voir dire proceedings. Defendant asserts that the incomplete record has denied him a proper errors patent review. Defendant further claims that the incomplete record makes the whole record defective and precludes a proper review on appeal. Defendant asserts that he did not waive his right to a complete record on appeal.

[27In addition, defendant argues that appellate counsel was ineffective because appellate counsel filed an appellate brief on an incomplete record when he did not represent defendant at trial. Defendant asserts that appellate counsel should have requested that the record be supplemented to include the aforementioned omitted parts. In particular, defendant complains that appellate counsel only filed one assignment of error and that at least appellate counsel should have raised the first two pro se assignments of errors in his counseled brief.

La. Const. Art. I, § 19 provides that no person shall be subjected to imprisonment without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. La. C.Cr.P. art. 843 requires, in all felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

A defendant has a right to a complete transcript of the trial proceedings, particularly where, as in this case, appellate counsel did not represent defendant at trial. Material omissions from trial court proceedings bearing on the merits of an appeal require reversal; however, an inconsequential omission from it which is immaterial to a proper determination of the appeal does not require reversal of a conviction. A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcript. State v. Lampkin, 119 So.3d at 166 (citing State v. Cheatteam, 07-272 (La.App. 5 Cir. 5/27/08), 986 So.2d 738, 746).

La.C.Cr.P. art. 914.1(A) provides in pertinent part that: “The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be 12Rurged.” La.C.Cr.P. art. 914.1(B) provides that: “A transcript of any portion of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal.”

The appellant bears the burden of furnishing the appellate court with a record of the proceedings below, and any inadequacy of the record is imputable to the appellant. State v. Lampkin, 119 So.3d at 166-67 (citing State v. Shaw, 00-1051 (La.App. 5 Cir. 2/14/01), 785 So.2d 34, 42, writ denied, 01-0969 (La.2/8/02), 807 So.2d 861).

In the present case, the record reflects that defendant did not specifically request a transcript of the opening and closing arguments, the jury charges, bench conferences and other off-record discussions, or the voir dire proceedings. Further, he has failed to show how he was prejudiced by the missing portions of the record. Additionally, defendant failed to raise any assignments of error related to the missing portions of the transcript. Therefore, we find that the record is sufficient for a proper appellate review.

In addition, defendant argues that his appellate counsel was ineffective during his appeal because counsel filed an appellate brief on an incomplete record and failed to request that the record be supplemented to include voir dire, opening and closing arguments, jury charges, and bench conferences and off-record discussions. Defendant also argues that appellate counsel filed a frivolous appellate brief because he only raised one assignment of error and failed to raise the assignments of error that defendant subsequently filed pro se.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than on direct appeal. When the record contains sufficient evidence to rale on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed |29in the interest of judicial economy. State v. Chappell, 11-148 (La.App. 5 Cir. 12/28/11), 83 So.3d 216, 223.

In the present case, the record is sufficient for us to address defendant’s claims. In order to prove ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficiency prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). To show that counsel was deficient, the defendant must demonstrate that counsel failed to meet the level of competency normally demanded of attorneys in criminal cases. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Defendant argues that appellate counsel was ineffective for not obtaining the before-mentioned missing portions of the transcript; however, defendant has failed to allege a specific error during those portions of the proceedings. La. C.Cr.P. art. 914(B) requires that any requested transcript of a portion of proceedings relate to the anticipated assignment of errors. Absent such an alleged error, appellate counsel was unable to order the missing portions of the transcript. La. C.Cr.P. art. 914(B); see also State v. Guillory, 95-383 (La.App. 3 Cir. 1/31/1996), 670 So.2d 301, 305-06. Accordingly, defendant has failed to show that his appellate counsel was ineffective in this regard.

Defendant has also failed to show that appellate counsel was ineffective by filing an appellate brief with only one assignment of error and for excluding the assignments of error that defendant subsequently filed pro se. To prove that counsel’s performance was deficient, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” based on “an objective standard of | ^reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2052. The attorney need not advance every argument, regardless of merit, urged by appellant. State ex rel. Cockerham v. Butler, 515 So.2d 1134, 1138 (La.App. 5 Cir. 11/9/1987) (citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). Therefore, defendant has failed to show that appellate counsel was ineffective. Based on the foregoing, defendant’s pro se assignments of error numbers two and three are without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters require correction.

Lack of notification of sex offender registration requirements

First, the record does not reflect that defendant was notified of Louisiana’s sex offender registration requirements in accordance with La. R.S. 15:540, et seq. Defendant’s convictions for sexual battery, aggravated oral sexual battery, and molestation of a juvenile upon T.L. committed between March 9, 1993 and March 8, 1997; sexual battery upon H. J. committed between February 13, 2008 and January 1, 2012; sexual battery upon I.L. committed between September 28, 2010 and January 4, 2012; and aggravated rape upon J.L. and indecent behavior with a juvenile upon J.S.L. both committed between February 1, 2010 and January 4, 2012; were all defined as “sex offenses” at the times of their commission. See La. R.S. 15:542(E) (1998-1997); La. R.S. 15:541(14.2)(a) (2008); La. R.S. _1^15:541(25)(a) (2010); La. R.S. 15:542(A) (2008-2012); La. R.S. 15:541(24) (2011-2012).

La. R.S. 15:540, et seq., requires registration of sex offenders and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La. R.S. 15:542 and La. R.S. 15:542.1 to the defendant. Accordingly, the trial court’s failure to provide this notification constitutes an error patent and warrants a remand for written notification. State v. Lampkin, 119 So.3d at 168 (citing State v. Pierce, 11-320 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1279-80). This is the case even where a life sentence has been imposed. See State v. Williams, 09-48 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 368-69, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860. Accordingly, we remand the matter to the trial court for purposes of providing defendant with appropriate written notice of his sex offender notification and registration requirements, using the form contained in La. R.S. 15:543.1.

Lack of notification of prescriptive period for seeking post-conviction relief

Second, the trial court failed to inform defendant of the prescriptive period for seeking post-conviction relief. Accordingly, on remand, the trial court is instructed to properly advise defendant of the prescriptive period under La.C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion; and then, to file written proof in the record that defendant received such notice.

CONCLUSION

For the reasons assigned above, defendant’s convictions and sentences are affirmed. The matter is remanded to the trial court for compliance with the instructions set forth in our errors patent review.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . La. R.S. 14:43.4 was repealed in 2012 to incorporate "aggravated oral sexual battery” into the definition of "aggravated rape.” See La. R.S. 14:41(A); La. R.S. 14:42(A); State v. B.A.S., 02-1131 (La.App. 3 Cir. 2/5/03), 838 So.2d 155, 157.

      . The indictment lists the birthdate of the victim of Count 4 (J.L.) as 4/16/2007; however, T.L. (J.L.’s mother) testified that J.L.’s date of birth is 12/16/2007.

      . See footnote 2.

      . The JPSO rights of arrestee form for defendant was admitted into evidence.

      . An audio recording of defendant’s first interview on January 5, 2012 and a transcription of that audio recording were admitted into evidence.

      .An audio recording of defendant’s second interview on January 5, 2012 and a transcription of that audio recording were admitted into evidence.

      . This interview was audio and video recorded. The DVD recording of J.S.L.’s interview was admitted into evidence and published to the jury.

      . H.J. testified that she did not give a detailed account to Dr. Jackson or anyone who worked at Children’s Hospital.

      .The prosecutor stated that the State and the defense stipulated that the last day of Kwanzaa was January 1, 2012, and defendant testified that he had no reason to dispute that Kwanzaa was celebrated between December 26 and January 1.

      . This interview was audio and video recorded. The DVD recording of J.S.L.’s interview was admitted into evidence and published to the jury.

      . La. C.E. art. 412.2 states in pertinent part:
      A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

      . When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Granger, 12-193 (La.App. 5 Cir. 10/30/12), 103 So.3d 576, 583, writ denied sub nom., State ex rel. Granger v. State, 12-2587 (La.4/26/13), 112 So.3d 840 (citing State v. Hearold, 603 So.2d 731, 734 (La.1992)).

      . Defendant argues that inconsistencies in their testimonies cast doubt upon their sto-ríes, but he does not specify any particular inconsistencies.

      . La. R.S. 15:440.5(A)(8) states:
      A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
      (8) The protected person is available to testify.

      . Defendant's pro se assignments of error numbers two and three have been combined for the purpose of this opinion because the issues raised therein are related.

      . The record includes written jury charges; however, it is unclear whether these were the actual jury instructions charged to the jury. The record reflects that the jury charges were not included in the transcript because they were not requested. However, this Court ordered that the record be supplemented with the transcript of the jury charges.

      . It is well settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520. Also, it is noted that the date ranges for the commission of all of the offenses are based on the victims’ and witnesses’ testimony at trial.

      . La. R.S. 15:541(24)(b) provides that the definition of "sex offense” includes "aggravated oral sexual battery” (formerly La. R.S. 14:43.4 (repealed 2012)).


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Bryan HAGER.
    No. 13-KA-546.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Appellate Counsel, Shannon K. Swaim, Emilia L. Salas, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, For Appellant, Bryan Hager.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, Bryan Hager challenges the sufficiency of the evidence presented to support his conviction for second degree battery. For the following reasons, we affirm his conviction.

Procedural History

On May 17, 2011, the Jefferson Parish District Attorney filed a bill of information charging Bryan Hager, defendant herein, with second degree battery, in violation of La. R.S. 14:34.1. On November 27, 2012, defendant waived his right to trial by jury and proceeded to trial before the bench. After hearing the evidence, the judge found defendant guilty as charged.

On April 22, 2013, the trial judge sentenced defendant to three years at hard labor. On April 25, 2013, defendant filed his motion for appeal, which the trial judge granted. On April 29, 2013, the trial court denied defendant’s motion for reconsideration of sentence since an appeal had been granted.

Facts

At trial, Jennifer Oldendorf explained that she and defendant had a decades-long, tumultuous relationship. They first met in 1991 when they were in the | sseventh grade. The couple met up again in college then moved in together in 2001. They split briefly in 2006 because of their constant arguing but reconciled within months. In 2009, defendant moved to Louisiana and Ms. Oldendorf soon followed. In January or February of 2010, defendant and Ms. Oldendorf moved into an apartment together on East William David Parkway. Ms. Oldendorf explained that there was only one physical altercation between defendant and herself during their entire relationship, during which Ms. Oldendorf slapped defendant “across the face.”

At trial, Ms. Oldendorf reported that, on July 12, 2010, she and defendant argued “all day long” about his drug use. When defendant asked Ms. Oldendorf for money for drugs, she gave it to him. However, when defendant later asked to use her car, Ms. Oldendorf refused. As defendant attempted to exit one of the bedrooms of their apartment, Ms. Oldendorf stood in the doorway to stop him from leaving the apartment. As she put her hands up and pushed defendant’s chest, her hand slipped and she accidentally hit him in the face. In response, defendant, who is right-handed, punched Ms. Oldendorf in the right eye with his left fist.

Ms. Oldendorf immediately fled to the house of a neighbor, who alerted the police. At approximately 10:30 p.m. on July 12, 2010, Deputy Scott Nelson of the Jefferson Parish Sheriffs Office responded to the disturbance call at the couple’s apartment on East William David Parkway. Upon the deputy’s arrival, he encountered Jennifer Oldendorf, who was “very upset,” “obviously shaken,” and had a visible injury to her right eye. Ms. Oldendorf explained that she had been in a verbal altercation with her longtime boyfriend throughout the day that culminated in him striking her with his closed fist near her right eye. Several hours later, defendant, who had fled the apartment, was arrested by Deputy Nelson.

14Meanwhile, when Ms. Oldendorf sought medical treatment, the emergency room physician determined that she had sustained a fracture to the orbital bone of her right eye socket, which was causing impingement of a muscle in her eye. Later that week, Ms. Oldendorf underwent surgery to place a plate in her eye socket to repair the fracture and release the herniated muscle. At trial, medical doctors testified that Ms. Oldendorfs injury was consistent with her being punched in the cheek with substantial force.

After hearing the testimony and reviewing the documentary evidence, the trial judge found that defendant was guilty as charged of second degree battery of Jennifer Oldendorf. Here, defendant appeals his conviction.

Law and Argument

In his sole assignment of error, defendant argues that the evidence was insufficient to support the trial court’s verdict. Specifically, he contends that the State did not prove beyond a reasonable doubt that he acted with the intent to inflict serious bodily injury. Rather, defendant contends that he acted in self-defense.

The State responds that the requisite intent was established by defendant’s use of force and the victim’s resultant injuries. The State maintains that the evidence does not support a theory of self-defense.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Reed, 11-507 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-0644 (La.9/14/12), 97 So.3d 1014. Indeed, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the fact finder. See, State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418.

Here, defendant was charged with and convicted of second degree battery in violation of La. R.S. 14:34.1, which provides in pertinent part: “Second degree battery is a battery when the offender intentionally inflicts serious bodily injury.” “Serious bodily injury” is defined as “bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” La. R.S. 14:34.1(B)(3).

Therefore, to convict a defendant of second degree battery, the State must prove the following elements beyond a reasonable doubt: (1) the intentional use of Ififorce or violence upon the person of another; (2) without the consent of the victim; and (3) when the offender intentionally inflicts serious bodily injury. State v. Strickland, 11-715 (La.App. 5 Cir. 3/27/12), 91 So.3d 411, 415.

In the instant case, defendant only contends that the State failed to prove the element of intent. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1).

Specific intent need not be proven as a fact but may be inferred from the circumstances of the offense and conduct of the defendant. Strickland, supra at 416. The intent to inflict serious bodily injury may be inferred from the extent and severity of the victim’s injuries. Id. See also, State v. Fuller, 414 So.2d 306 (La.1982) (defendant’s act of punching the victim in the face, causing a cut lip, a bloody nose, and permanently-impaired vision, demonstrated that the defendant possessed the specific intent to inflict serious bodily injury).

In State v. Accardo, 466 So.2d 549, 551-52 (La.App. 5 Cir.1985), writ denied, 468 So.2d 1204 (La.1985), a case that is factually similar to the instant case, this Court found that the male defendant possessed the specific intent to cause serious bodily injury when he struck the female victim in the head, causing her face to swell. Thus, considering the facts of the present case, where defendant, a male, punched a female in the eye with sufficient force to fracture her right orbital bone requiring surgical repair, we find that the State proved that appellant possessed the requisite specific intent to inflict serious bodily injury.

On appeal, defendant argues that he lacked specific intent because he acted in self-defense. Our review of the record clearly shows that appellant failed to raise any issue concerning a justification defense in the trial court and the trial |7court made no ruling on this issue. Accordingly, this issue is not before this Court on appeal. La.C.Cr.P. art. 841; U.R.C.A. 1-3. This assignment of error lacks merit.

Error Patent Discussion

Finally, appellant requested an error patent review, which this Court routinely performs pursuant to La.C.Cr.P. art. 920. Our review reveals no errors patent requiring correction in this case.

AFFIRMED.

      . The Fuller court reasoned: “When a much stronger man hits a younger, smaller man, the fact finder could rationally conclude that the offender intended to cause, at a minimum, unconsciousness and/or extreme physical pain.” Fuller, 414 So.2d at 310.


text:
    Christopher EZZELL v. Dr. Luden Sidney MIRANNE, Jr.
    No. 13-CA-349.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2013.

      See also 84 So.3d 641.
    Anthony J. Staines, Corey P. Parenton, Attorneys at Laws, Metairie, Louisiana, for Plaintiff/App ellee.
    Leonard L. Levenson, Christian W. Helmke, Donna R. Barrios, Attorneys at Laws, New Orleans, Louisiana, for Defendant/Appellant.
    Bobby J. Delise, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.

      Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

| ¡^Appellant, Dr. Luden S. Miranne, Jr., appeals the district court’s dismissal of his petition for nullity. For the reasons stated below, we vacate the judgment of the district court dismissing appellant’s petition for nullity and remand the matter to the trial court for further proceedings.

PROCEDURAL HISTORY

On April 8, 2008, Christopher Ezzell filed a petition for damages for personal injuries against Miranne claiming that he received injuries after Miranne struck him. On April 1, 2010, after a jury trial, judgment was awarded in favor of Ezzell and against Miranne in the amount of $435,513.69, plus interest. The parties appealed the judgment. Ezzell v. Miranne, 11-228 (La.App. 5 Cir. 12/28/11), 84 So.3d 641. On appeal, this court previously increased Ezzell’s award for future pain and suffering by $75,000.00 and affirmed the judgment in all other respects. Id.

Subsequent to appeal, Ezzell filed a motion to tax costs against Miranne. On June 12, 2012, the trial court rendered judgment in favor of Ezzell and against Miranne for additional court costs in the amount of $31,560.49.

On July 20, 2012, Miranne filed a “Petition for Nullity and Motion for Temporary Restraining Order and Injunctive Relief.” In the petition for nullity Miranne claimed that the original judgment rendered in the trial court, and the additur granted in this Court, were obtained by fraud and ill practices. Specifically, Miranne claimed that the judgments were procured by perjured testimony and/or by Ezzell’s failure to disclose new evidence that rendered the testimony given at trial by Ezzell false. The petition additionally sought to enjoin Ez-zell from collecting any further payments from Miranne (ie., additional court costs awarded on June 12, 2012) and from alienating, disposing, or otherwise encumbering any and all funds previously received from the prior judgments.

On August 14, 2012, Ezzell filed a petition for garnishment against Miranne, directed to Miranne’s employer, Southern Brain and Spine, . L.L.C., seeking garnishment to recover payment of the additional court costs awarded on June 12, 2012. The trial court granted the petition on August 15, 2012. A writ of fieri facias, filed by Ezzell, was also granted and issued on the same day. In response to the orders signed on August 15, 2012, Miranne filed a “Motion for Expedited Hearing, Motion to Vacate Issuance of Writ of Fieri Facias and Motion to Set Hearing on Defendant’s Petition for Nullity of Judgment.” The motions were set October 2, 2012.

Ezzell filed an answer to the petition for nullity on August 22, 2012, and an opposition to the petition for nullity on August 27, 2012. Additionally, on September 18, 2012, Ezzell filed a motion for sanctions against Miranne. Miranne filed an opposition to the motion for sanctions.

|4On October 2, 2012, the trial court conducted a hearing on the various motions and rendered judgment on October 9, 2012, denying Ezzell’s motion for sanctions, denying Miranne’s motion to vacate, and dismissing Miranne’s petition for nullity. Upon request, the trial court issued written reasons on November 16, 2012. This appeal followed.

DISCUSSION

In his only assignment of error, Miranne contends that the trial court erred in dismissing his petition for nullity, after a rule to show cause hearing, without affording ordinary procedure and a full evidentiary trial on the merits of his petition as required by the Louisiana Code of Civil Procedure. Ezzell contends that the trial court’s dismissal was procedurally proper.

This action is brought pursuant to La. C.C.P. art. 2004, which does not specify the manner in which one can assert the grounds for nullity. La. C.C. P.art. 2004 provides as follows:

A final judgment obtained by fraud or ill practices may be annulled.

A. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

The Official Revision Comment (d) to La. C.C.P. art.2004 provides:

No specific provision has been made regarding the manner of asserting the grounds of nullity in the above article. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. (Citations omitted).

Additionally, La. C.C.P. art.2005 provides that “[a] judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled |aonly when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.”

An action for nullity of a final judgment alleging fraud or ill practice pursuant to La. C.C.P. art.2004 must be brought in an ordinary proceeding, rather than in a summary proceeding. Gazebo, Inc. v. City of New Orleans, 97-2769 (La.App. 4 Cir. 3/23/98), 710 So.2d 354, 356, In re Successions of James, 09-25 (La.App. 5 Cir. 6/23/09), 19 So.3d 1200, 1202; Willis v. Travelers Insurance Company, 545 So.2d 721, 721 (La.App. 3 Cir.1989). There is no authority in law to bring such an action in a summary proceeding. Bonaventure v. Pourciau, 577 So.2d 742, 746 (La.App. 1 Cir.1991); Johnson v. Vinson Guard Service, 577 So.2d 56, 59 (La.App. 1 Cir.1990), writ denied, 578 So.2d 915 (La.1991). An action for nullity alleging fraud is a relative nullity that must be asserted in a direct action filed in the court that.rendered the judgment, and the adverse party must be cited to appear as in ordinary suits. Champagne and Rodgers Realty Co., Inc. v. Henning, 06-237 (La.App. 5 Cir. 11/14/06), 947 So.2d 39, 45, writ denied, 06-2920 (La.3/9/07), 949 So.2d 440; Green v. Holmes, 10-880 (La.App. 5 Cir. 4/12/11), 68 So.3d 1; Willis, supra.

Miranne contends that the merits of his petition for nullity were not before the trial court on October 2, 2012. Specifically, Miranne argues that he was requesting injunctive relief pending a hearing on the merits of the petition for nullity as is established by Miranne’s memorandum in support of injunctive relief and the transcript of the hearing requesting a stay of the judgment awarding additional court costs.

Ezzell contends that the petition for nullity was set for contradictory hearing by Miranne. He also contends that both parties argued and offered evidence on the merits of the petition for nullity. He further contends that since the trial court |fidetermined that the petition was predicated upon facts which were irrelevant or otherwise inadmissible, the trial court properly, and within its discretion, dismissed the matter after a hearing. Ezzell further argues that summary proceedings on petitions for nullity have been upheld by courts and thus, the summary proceeding in this case was proper. In support thereof, Ezzell cites In re Successions of James, 09-25 (La.App. 5 Cir. 6/23/09), 19 So.3d 1200 (dismissal on exception of prescription and no right of action upheld); Dooley v. Teller, 10-0067 (La.App. 4 Cir. 5/26/10), 2010 WL 8972212 (not reported) (dismissal upheld on grant of summary judgment); Melancon v. D & M Enterprises, 95-0644 (La.App. 4 Cir. 9/28/95), 662 So.2d 54 (dismissal upheld on grant of summary judgment); Mendonca v. Tidewater, Inc., 11-0318 (La.App. 4 Cir. 9/7/11), 73 So.3d 407 (dismissal upheld on grant of exceptions of res judicata and no cause of action).

The cases cited by Ezzell, however, are distinguishable. None of these dismissals were judgments deciding the merits of the case, ie., the primary demand. Rather, all were decided upon exceptions or upon motions for summary judgment, as opposed to a rule to show cause summarily deciding the entire case on its merits, as was done here. In the case before us, the petition for nullity was summarily dismissed on the merits pursuant to a rule to show cause.

La. C.C.P. art. 1571 and La. Dist. Ct. Rule 9.14 each provide that a court may not assign a case for trial until an answer is filed, and Rule 9.14 further requires certification (often called a “Rule 9.14 Certificate”) that all parties have answered or that preliminary defaults have been taken, all discovery has been completed, all preliminary matters have been disposed of, and that the case is ready for trial. Alternatively, a status or scheduling conference may be set. Reference is also made to Rule 9.14 in the Editor’s Notes to La. C.C.P. art. 1571.

|7In this case, at the time Miranne filed his motion and it was originally set, Ezzell had not filed an answer to the petition, as is required in. an ordinary proceeding, nor was there any certification that the Rule 9.14 requirements were fulfilled, nor any indication that they had occurred. Moreover, it is clear that Miranne’s sole purpose was not to set the case for trial on the merits, but to enjoin and prevent execution of the remaining portions of the judgment, notwithstanding that it was titled “Motion to Set Hearing on Defendant’s Petition for Nullity.” Miranne’s memorandum in support sought only to enjoin Ezzell from collecting any further payments from Mir-anne and from alienating, disposing, or otherwise encumbering any and all funds previously received from the prior judgments.

Moreover, a thorough review of the transcript reveals that Miranne argued and presented evidence with respect to injunctive relief and in opposition to the motion for sanctions, and did not argue or present evidence on the merits of the petition for nullity. The following arguments to the trial court during the hearing are relevant:

[Miranne’s Counsel] I don’t know if this court has had an opportunity to look at that CD or not. Maybe that will be reserved for the point in time when this matter comes up for an evidentiary hearing.

[Miranne’s Counsel] What’s at issue here right now I’m asking that Your Honor stay the $33,000 in costs and expenses that was awarded. Give us a chance to prove whether we have a petition — a valid petition for nullity or not, but it— there’s no uncertainty here, Judge.

| ¡¡[Miranne’s Counsel] What I respectfully submit to the Court, Your Honor, there is more than ample evidence here to at least stay the execution of the balance of the 30 or $33,000 in this case, have a hearing on the petition for nullity, and then we go from there.

Based on the above stated reasons, the trial court had no authority to determine the merits of and dismiss the petition for nullity at the contradictory hearing. An action for nullity is an ordinary proceeding and cannot be summarily brought as a motion. The cases cited by Ezzell are distinguishable and not applicable to the facts of this case. In those cases, the defendants in each nullity action filed exceptions or motions for summary judgment in response to the action for nullity, which may be heard by summary proceeding. In this case, Ezzell did not file or set for hearing any exceptions or motions to the petition for nullity. While a trial court may, sua sponte, raise any pertinent exception, it did not.

While it is true that at the hearing counsel for Miranne argued facts related to nullity, the record establishes that those arguments were in defense of Ezzell’s La. C.C.P. art. 863 motion for sanctions for filing of the petition for nullity. The record clearly establishes that the substance of Miranne’s memorandum in support and oral argument were a request for injunc-tive relief, not a determination of the merits of the petition for nullity.

Accordingly, we find that the trial court erred in dismissing the petition for nullity, and the judgment of October 9, 2012 dismissing Miranne’s petition for |9nullity is hereby vacated, and the matter is remanded to the trial court for further proceedings.

In his appellee brief, Ezzell contends that the denial of attorney’s fees pursuant to his motion for sanctions was improper considering the defamation of Ezzell’s character during the hearing on the petition for nullity. Ezzell requests this court to grant his motion for sanctions for attorney’s fees.

An appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La. C.C.P. art. 2082. Where another party has filed an appeal, a non-appealing party who seeks a change in the judgment can file an answer to the appeal. La. C.C.P. art. 2133(A). In this case, Ezzell did not file an appeal or an answer, and therefore the judgment on the denial of Ezzell’s motion for sanctions cannot be altered. See, Matthews v. Consolidated Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191, 1191-1192; White Haute, LLC v. Mayo, 09-955 (La.App. 5 Cir. 3/23/10), 38 So.2d 944, 946; Wells v. Wells, 12-315 (La.App. 5 Cir. 1/16/13), 109 So.3d 45, 48-49; South Texas Pioneer Millwork v. Favalora Constructors, Inc., 11-722 (La.App. 5 Cir. 3/13/12), 90 So.2d 1092, 1098.

| ^CONCLUSION

For the above stated reasons, the judgment dismissing Miranne’s petition for nullity is vacated, and the matter is remanded to the trial court for further proceedings. Ezzell’s request for sanctions is denied.

JUDGMENT DISMISSING PETITION FOR NULLITY VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

      . The court notes that this pleading failed to contain an order or rule to show cause to set the temporary restraining order and injunc-tive relief.

      . Per the Satisfaction of Judgment in the record, Miranne has paid all monies due to Ez-zell, except for the additional court costs awarded in the June 12, 2012 judgment.

      .The motions were originally set for hearing on August 28, 2012. Due to Hurricane Isaac, the motions were continued and reset for October 2, 2012, by agreement of the parties.

      . The trial court or appellate court can sua sponte raise its own exception of no right of action. Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 865. The trial court can sua sponte raise its own exception of no cause of action. Moreno v. Entergy Corp., 10-2268 (La.2/18/11), 64 So.3d 761, 762; and La. C.C.P. art. 927(B).

      . La. C.C.P. art. 2133(A) provides;
      A. 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. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appel-lee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.