author: MICHAEL E. KIRBY, Judge.

text:
    Hester WOMACK v. CUSTOM HOMES AND RENOVATIONS, Tyrone Wilson, Asset Management Services, C.R. Trahan Maintenance Co., CR Trahan, XYZ Insurance Company, VWX Insurance Company, QRS Insurance Company, et al.
    No. 2008-CA-0854.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.
    Sidney L. Shushan, Jonathan M. Shush-an, Sidney L. Shushan, A.P.L.C., New Orleans, LA, for Plaintifi/Appellant.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, and Judge EDWIN A. LOMBARD.
   MICHAEL E. KIRBY, Judge.

1 plaintiff, Hester Womack, appeals the March 14, 2008 trial court judgment in favor of defendants, C.R. Trahan, C.R. Trahan Maintenance Company, Tyrone Wilson, Custom Homes and Renovations, Andrew Mercadel and Asset Management Services, dismissing plaintiff’s suit against defendants.

In Womack v. Custom Homes and Renovations, 02-0193, 02-0194, pp. 1-2 (La.App. 4 Cir. 6/5/02), 820 So.2d 1196, 1198, this Court gave the following statement of this case:

Plaintiffs home was damaged by fire. Trahan agreed to do repair work to the plaintiffs home in accordance with a proposal he submitted dated July 27, 1997 for $139,000.00. When Trahan failed to complete the work to plaintiffs satisfaction, she retained Tyrone Wilson, d/b/a Custom Home Renovations to do the work instead based on a contract dated November 24, 1997. Mr. Wilson did not perform to her satisfaction either, whereupon plaintiff entered into a contract with Asset Management Services dated January 8, 1999, for the purpose of completing “the project which [Wilson and his company] had failed to complete.” Plaintiffs petition alleges that Asset Management also failed to complete the work, whereupon plaintiff sued Trahan, Wilson, their companies, Asset Management Services and their unknown insurers.

|2The 2002 opinion vacated a default judgment rendered against Mr. Trahan and C.R. Trahan Maintenance Company, and remanded this case for further proceedings. Following trial in 2008, the trial court found no liability on the part of defendants, and ruled in their favor, dismissing plaintiffs claim for damages.

On appeal, plaintiff argues that the record establishes that the work of Mr. Tra-han and Mr. Wilson caused severe damage to the foundation of plaintiffs house, which started a chain of events culminating in the loss of her house through foreclosure. Plaintiff also argues that the evidence in the record is legally insufficient to support the conclusion reached by the trial court. Specifically, plaintiff argues that she carried her burden of proving that the defendants’ work was a proximate cause of the foundation problems, that defendants did not carry their burden of proving an intervening cause, i.e. the work of Melvin Peterson, and that Mr. Wilson’s non-performance was gross fault under La. Civil Code article 2004. Plaintiff further argues that she should be awarded damages from all of the defendants.

The plaintiff seeking damages in a civil action must prove each element of his or her claim by a preponderance of the evidence. Erwin v. State Farm Mutual Automobile Insurance Company, 34,127, p. 4 (La.App. 2 Cir. 11/1/00), 771 So.2d 229, 232. In Mistich v. Volkswagen of Germany, Inc., 95-0939, pp. 4-5, (La.1/29/96), 666 So.2d 1073, 1077, our Supreme Court stated as follows:

It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two | ..permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra at 844. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 978 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

The following testimony was offered at trial. Thomas Boyd, Jr., a licensed contractor and owner of Quality Carpentry, was accepted as an expert in residential construction. In 2001, he gave plaintiff an estimate to redo work that allegedly had been improperly performed on her property located at 8206 Louisiana Avenue Parkway. He stated that he went to the job site and reviewed the work that needed to be redone. He explained in detail the items listed in his estimate. The list was very lengthy and included Mr. Boyd’s estimate of the total cost of the job, which was $275,000.00. He testified that approximately $30,000.00 of that amount represented the costs of shoring the house. Mr. Boyd stated that at the time of trial, his estimate for the costs of the repair work on plaintiffs home would be approximately double his 2001 estimate. He said that whoever did the prior shoring work on the house started all of the other problems.

Mr. Boyd testified on cross-examination that the contractor’s license he holds does not allow him to perform a $275,000.00 contract. He said his license limits him to a $75,000.00 contract, but his limit was $275,000.00 at the time of his |42001 estimate. He said a homeowner would need to get a permit to allow him to perform a job in excess of $75,000.00. He stated that he gave plaintiff an estimate, but he was not given the job. Mr. Boyd testified that he did not notice if plaintiffs property had a subsidence problem. He could not name any of the three previous contractors that worked on plaintiffs house, and did not know the specific work for which each contractor was responsible.

The plaintiff was the next witness. She testified that she acquired the property at 3206 Louisiana Avenue Parkway in the community property settlement with her ex-husband, but she no longer owned the property at the time of trial. Plaintiff stated that the property was damaged by fire after the community property settlement. She said the fire did not burn the house to the ground, but it caused major damage to the roof and floors. She said that before the fire, she did not have problems with windows and doors not closing or with cracks in the wall or with cabinets and counters pulling away from the wall. The house did not lean front to rear or side to side before the fire.

After the fire, plaintiff hired contractors to repair and rebuild the house. The first contractor she hired was Cesar Trahan. She entered into a contract with him on July 27,1997. She said Mr. Trahan gutted the house, framed the apartment upstairs, and did repairs. She said Mr. Trahan did not finish all of the work he was hired to do, and she let him go. She also said the work performed by Mr. Trahan was very bad. Her second contractor was Tyrone Wilson. She entered into a contract with him on November 24, 1997. She said he completed the work on the two upstairs’ apartments but did none of the work downstairs that she hired him to do. She said Mr. Wilson left the job after being paid for the upstairs’ work. She said she tried to call Mr. Wilson regarding alleged defects in his work, but she |ñnever sent him written requests because she did not know his address. Plaintiff testified that Mr. Wilson did not do any shoring work on her house. The third contractor she worked with was Mr. Mercadel’s company, Asset Management. Plaintiff entered into a contract with Mr. Mercadel on January 8, 1999. She said he framed the house “because the house was falling,” and put cement down in the basement. He told her that faulty shoring work had been performed on her house. She said Mr. Mercadel left the job without finishing the work she hired him to do, and she did not pay him the total amount of money called for in the contract. She said he initially promised to come back and straighten out what she considered his “shoddy” work, but he did not do so and eventually stopped answering her calls.

Plaintiff testified that after all three contractors finished their work, there were still cracks in the walls, and there were problems with the cabinets, doors and windows. She said Melvin Peterson was a contractor who fixed the metal walkway steps to the back of the house, but he did not do any jack hammering. Plaintiff stated that she did not sue Mr. Peterson because he was going to perform shoring work on the house, but an inspector stopped the work because of the absence of a permit for the work. She said Mr. Peterson put cement flooring in her basement prior to the fire. He also put brick flooring on one side of the downstairs basement.

Plaintiff asked Mr. Trahan to raise “the downstairs to the upstairs,” and he did that. She said Mr. Wilson did not do any work downstairs. She said Mr. Mercadel “cased the house up” to stop it from leaning so much, and he placed cement on the floor. She said Mr. Boyd came out and looked at her house after all three contractors were finished.

| fiPlaintiff contracted with Mr. Wilson to do the job for $80,000.00. She paid him, but Mr. Wilson gave her back $15,000.00 of the money she had paid him for the downstairs portion of the job that he did not do. Plaintiff admitted that by refunding the $15,000.00, Mr. Wilson put her on notice that he could not repair the basement portion of the house. She said she noticed problems with cracks in the wall and problems with closing doors and windows in March 1999 when she moved into the house. Plaintiff identified photographs of her house that were introduced into evidence.

Cesar Trahan, the owner of C.R. Trahan Maintenance Co., testified that he briefly worked on plaintiffs house in 1997. He said he worked on the upstairs portion of the house, and did no shoring or foundation work. He testified that the only work he did downstairs was bracing the center of the house with a partition wall to support the work he was doing upstairs, which was dividing the house into separate living units. He said he did this work without making any changes to the foundation. Mr. Trahan testified that after working a couple of months on this job, he was locked out of the house. He returned shortly afterward to reclaim his tools, but he did not return to the property again after that time. He could not say whether the house started leaning and shifting after he worked on it.

Tyrone Wilson testified that in 1997 and 1998, he was the sole proprietor of a business called Custom Homes and Renovations. During that time, he performed work on plaintiffs property. He was hired by plaintiff to perform work upstairs and downstairs, but refused to perform the downstairs work because plaintiff wanted to divide the house into separate units and had not complied with zoning requirements for that type of work. Mr. Wilson refunded money paid to him by plaintiff for the downstairs work. He testified that he completed the upstairs work 17he was hired to do. He said there were support beams in the middle of the house when he started the job. He testified that he did not do any shoring work on the house, and was not aware of any problems with the house leaning. He testified that the house was in good condition when he finished his work. Mr. Wilson met with a real estate inspector at the house on February 4, 1998. The inspector found that the workmanship was good on the repairs that had been completed.

Plaintiff was called back to the stand after the testimony of Mr. Wilson. She testified that Mr. Peterson did not do any work in her basement after Mr. Trahan and Mr. Wilson worked on the house. After being presented with her earlier deposition, plaintiff then testified that Mr. Peterson did do some work after Mr. Trahan and Mr. Wilson completed their work, but before Mr. Mercadel did his work on the house. She said Mr. Peterson was trying to put some beams at the bottom of the house, and a city inspector showed up and stopped the work. At trial, she said Mr. Peterson was “going to try” to break up the downstairs floor but did not actually do anything to the concrete in the basement before the inspector arrived. She said the work Mr. Peterson did for her did not affect any bricks or concrete in the basement. However, at her deposition, the following exchange occurred:

Q. And at the time Mr. Wilson completed his work you had no tenant downstairs, isn’t that correct?
A. No.
Q. Who did you have break up [sic] the concrete and brick in the downstairs? A. His name was Mr. Melvin Peters.

IsAlso in her deposition, the following exchange occurred regarding money paid by plaintiff to Mr. Peterson:

Q. This is the person who broke up the downstairs?
A. Partially, yes.

The proposal that Mr. Mercadel drafted for work to be performed on plaintiffs house stated, “The recently completed shoring of the above house in question is nowhere near level.” Plaintiff insisted that no one did any work on the downstairs besides Mr. Trahan and Mr. Merca-del. She claimed that Mr. Peterson only did work on the gate and stairs leading to the house.

Mr. Mercadel did not testify at trial, but his deposition was introduced into evidence. He testified that he is the sole proprietor of Asset Management. The work he contracted to do for plaintiff included an item listed as “pour slab to grade downstairs.” He explained that when he first saw the house, the basement had a dirt floor with busted out concrete still in place that had been jack hammered. He said that the concrete floor had been jack hammered and parts of slabs of concrete remained, causing the middle of the house to sink. He said that some of the repairs that had already been made to the house since the fire including framing, but he had to do double framing because the house had sunk in the middle. He said his company shored the middle of the house and replaced the concrete floor of the basement. He described the other work he performed on plaintiffs house until she was unable to pay him anymore. Mr. Mercadel stated that he did not know what work Mr. Trahan or Mr. Wilson performed on the house before his job started. His company worked on this job for six to eight months in 1999, and he has not seen the house since that time.

|9The trial court issued written reasons for judgment in support of her finding of no liability on the part of the defendants. After summarizing the testimony at trial, the trial court found that no credible witness testified that any of the defendants performed any faulty or sub-par work. The court found that the only evidence offered in this regard consisted of plaintiffs conclusory statements that the work was shoddy and incomplete. The court also found that plaintiff offered no evidence to support her claim that the defendants were in bad faith in not performing the work under the contracts and in not noticing problems with the house’s structure. As for Melvin Peterson, who was hired to perform work on the house after Mr. Trahan and Mr. Wilson, the trial court noted that although plaintiff insisted that Mr. Peterson, who is not a licensed contractor, did not do any jack hammering in the house, she stated at her deposition that she hired him to break up the concrete in the basement. The court further noted that plaintiffs witness, licensed contractor Thomas Boyd, Jr., testified that while jack hammering would not cause all of the problems with the house, it would certainly make them worse. In summary, the trial court found that the defendants are not liable to plaintiff because the weight of the credible evidence in this case indicates that none of the defendants’ work was responsible for the problems created in plaintiffs home post-fire, and that defendants performed their duties under their contracts in good faith.

After reviewing the record in its entirety, we conclude that the trial court was not manifestly erroneous or clearly wrong in finding no liability on the part of the defendants. The trial court’s finding that the credible evidence in this case indicates that defendants are not responsible for the problems with plaintiffs house was based on the court’s credibility determinations, which we find to be | ^reasonable. It is obvious from the reasons for judgment that the trial court did not find plaintiff to be a credible witness. With regard to the work of Melvin Peterson, who is not a licensed contractor, plaintiffs trial testimony was in conflict with her earlier deposition testimony. Although plaintiff testified at trial that Mr. Peterson did not do anything to the bricks or cement in her basement, she stated in her deposition testimony that Mr. Peterson broke up the cement and bricks in the downstairs portion of the house. She admitted that Mr. Peterson worked on her house after Mr. Wilson and before Asset Management. Although Mr. Boyd said that whoever did the prior shoring work on the house started all of the other problems, he could not name any of the people who had previously worked on plaintiffs house, and did not know the specific work for which each person was responsible. Other than plaintiffs self-serving testimony, none of the evidence presented at trial established that any of the actions or inactions of the defendants caused the problems with the plaintiffs house.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . At her deposition, plaintiff sometimes referred to Melvin Peterson as Melvin Peters, but she stated that this was the same person.


source: Caselaw Access Project

author: LOLLEY, J. WILLIAMS, J.,

license: Public Domain

text:
    OFFICE FURNITURE OUTLET, INC., Plaintiff-Appellee v. Mark Coleman GRAU and Martin M. Grau, Defendants-Appellants.
    No. 44,228-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 27, 2009.

      W. Douglas White, for Defendant-Appellant, Martin M. Grau.
    Jerald R. Harper, Shreveport, for Plaintiff Appellee, Office Furniture Outlet, Inc.
    Jefferson R. Thompson, for Defendant-Appellee, Mark Coleman Grau.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| jThis appeal by defendant, Mark Grau, arises from a partial final judgment from the First Judicial District, Parish of Cad-do, State of Louisiana in favor of plaintiff, Office Furniture Outlet. For the following reasons, we affirm.

FACTS

Office Furniture Outlet (“OFO”) is a family business originally formed by defendant, Mark Grau. The business provides office furniture services to customers. Mark’s son, Martin, was a salesman in the business. In 2003, Mark and his wife sold 75% of the business to Mark’s brother, William Grau. William began to act as CEO while Mark continued to work as vice president. During this time, issues with commission, salary, and company policy arose. Mark was fired, Martin resigned, and together they created another business, Office Furniture Source, LLC (“OFS”).

William, through OFO, brought suit against Mark and Martin, individually, for breach of fiduciary duty while at OFO and unfair trade practices and false and deceptive claims with their work at OFS. This appeal arises out of an ancillary issue on the rule for attorney fees issued by the trial court on June 28, 2008. The underlying actions against Martin and Mark Grau are still pending and are not subject to this appeal. Further, Mark Grau was not cast in the judgment for attorney fees, and, therefore, is not a party on this appeal.

The pretrial activity, including discovery, which gave rise to the hearing for attorney fees involved efforts to discover Martin Grau’s activities in acquiring and seeking furniture while still employed with OFO. |2OFO filed numerous motions to compel and motion for sanctions and attorney fees against Martin to ascertain the information. In March 2008, OFO filed its Motion to Compel for the sixth time and Motion for Sanctions for the fourth time. Based on these motions, the trial court rendered a partial final judgment on June 23, 2008, in favor of OFO and ordered Martin to pay the plaintiff $32,370.00 in attorney fees. This appeal by Martin ensued.

LAW AND DISCUSSION

Martin argues that sanctions and attorney fees were not warranted, and in the alternative, the trial court failed to apply the correct standard in awarding the attorney fees. It is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central, 1993-0783 (La.01/14/94), 631 So.2d 401.

Appealable Judgment

At the outset we confirm that the trial court’s partial judgment is appealable. The trial court stated, and we agree, that it was acting upon one of the sanction provisions under La. C.C.P. art. 863 whose imposition is immediately appealable under La. C.C.P. art. 1915(A)(6).

Sanctions

The discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery. The granting of relief against a | srecalcitrant party rests within the trial judge’s discretion and will not be disturbed absent a clear abuse of that discretion. Butts v. Cummings, 360 So.2d 534 (La.App. 2d Cir.1978). There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. Refusal to comply with court ordered discovery is a serious matter. Horton v. McCary, 1993-2315 (La.04/11/94), 635 So.2d 199.

Here, the record bears out an inordinate amount of time and resources were spent during the pretrial phase to enforce Martin to comply with answering various interrogatories. The trial court clearly afforded Martin every opportunity to fulfill the legitimate discovery and requests for production made by OFO. The trial court even denied OFO’s fourth filing for a Motion to Compel and second filing for Motion for Sanctions giving Martin the benefit of the doubt. In fact, Martin admits in his brief that sanctions and attorney fees are in response to the Sixth Motion to Compel and Fourth Motion for Sanctions. Simply put, the same request was made over six times beginning in April 16, 2007.

While it is evident that this has been an acrimonious lawsuit to say the least, there is nothing in the record that supports Martin’s unwillingness to cooperate during the discovery process. OFO complied with every request that Martin had made, including voluminous disclosures of financial documents. Allegations that Martin purposefully altered evidence, used delay tactics, and harassed the opposing party by requesting unnecessary documents are serious, and while there is nothing in the record ^substantiating these claims, it is not to be taken lightly. See, e.g., MTU of North America, Inc. v. Raven Marine, Inc., 475 So.2d 1063 (La.1985). What is substantiated from the record, however, are the trial court’s four direct orders compelling Martin to comply with discovery and Martin’s refusal to follow these orders even under threat of incarceration. The trial court must have severe sanctions available to it to deter litigants from scoffing at its discovery orders. Horton, supra. We agree with the trial court in its decision to impose sanctions.

Attorney Fees

In light of our findings that sanctions are appropriate, we find that the trial court did not abuse its discretion in awarding attorney fees. Louisiana C.C.P. art. 1469(4), which provides for motions to compel, states in pertinent part that:

(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

While the attorney fees are on the high end, we agree with the trial court that the pretrial phase was drawn out because of Martin’s own conduct. OFO submitted an affidavit for the amount expended on attorneys and other expenses for over a year during the pretrial phase totaling $57,785.00. Clearly, the amount the trial court awarded, $32,370.00, is significantly less and it took into consideration only the fees incurred after the Fourth Motion to Compel and Second Motion for Sanctions were denied |Bm October 2007. As such, we find the scope of fees to be appropriate. The trial court tried to avoid such a hefty penalty by having over a dozen hearings to allow Martin time to comply, but after several warnings it was left with no choice.

Other Issues

As an aside, Martin makes much of the need to apply the “concept” of SWAT 24 Shreveport Bossier Inc. v. Bond, 808 So.2d 294 (La.2001) to the case at hand. In SWAT 24 a former employer sought in-junctive relief in the enforcement of non-competition agreement with former employee. We fail to see how SWAT 24 is applicable; however, we pretermit further discussion on its application since the merits of the case are not before us.

We do find, and Martin correctly identified, that the trial court erred in casting judgment on OFS, which is not a party in this lawsuit and specifically not a defendant-in-rule. As such, we amend the judgment, by way of this opinion, to strike any reference to OFS. See La. C.C.P. art. 1951.

CONCLUSION

We amend the judgment to strike any reference to Office Furniture Source, LLC as they are not a party in this case. We affirm the trial court in all other respects. Costs for this appeal are assessed against Martin Grau.

AMENDED, AND AS AMENDED, AFFIRMED.

WILLIAMS, J.,

concurs in part and dissents in part. The attorney fees awarded for this “Rule” are excessive and a clear abuse of discretion.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Kenny Wayne COLLINS, Appellant.
    No. 44,248-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 27, 2009.

      Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    Jerry L. Jones, District Attorney, Josephine P. Heller, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

| |The defendant, Kenny Wayne Collins, was convicted by a jury of unauthorized entry of an inhabited dwelling, attempted sexual battery, and attempted possession of marijuana with intent to distribute. He was sentenced to three years at hard labor for the unauthorized entry conviction; four years at hard labor without benefit of probation, parole or suspension for the attempted sexual battery conviction; and ten years at hard labor, with credit for time served, the first four years without benefit of probation, parole, or suspension of sentence, the remaining six suspended, with five years’ supervised probation, for the attempted possession of marijuana with intent to distribute conviction. The sentences are to run concurrently with each other, but consecutively to any other sentences. The defendant now appeals, urging five assignments of error. For the following reasons, we affirm the defendant’s convictions and sentences, but amend the defendant’s sentence for attempted possession with intent to distribute to remove the prohibition of parole.

FACTS

On November 8, 2006, J.G. was standing outside her apartment smoking a cigarette with Justin Flores, her boyfriend’s brother, and the defendant. The trio stood and talked for a few minutes before J.G. announced that she was going back into the apartment that she shared with her boyfriend, Joshua Flores, and Justin Flores, so that she could take a shower. She asked Justin to lock her in the apartment. J.G., Joshua, and Justin all lived together and had only one key to the apartment. After Justin |2did so, he and the defendant went to the defendant’s apartment two doors down to play video games.

The defendant shared an apartment with his then seven-months pregnant girlfriend, Whitney Farris. Farris left shortly after the two arrived. Soon after, the defendant told Justin he had to leave for a few minutes.

After J.G. got out of the shower, she walked into her bedroom wearing only a towel and began to dry off when she looked in the mirror and saw the defendant standing in the corner. J.G. screamed and told him to get out of her apartment. The defendant left the room and J.G. ran into her walk-in closet to put on some clothing. She put on a t-shirt and a pair of jogging pants and when she looked up again, the defendant was in her closet with her and was attempting to hug her. As he did so, he shoved his hand down the front of her jogging pants and touched her vagina. J.G. screamed again and managed to get away from him. She ran out of the apartment to find Justin and call the police. The defendant did not have his own key to the apartment, nor did anyone have permission to be in the apartment alone with J.G.

Deputy John Dupree, upon arriving at the scene, first spoke with the victim inside her apartment where he found her curled up on her couch, crying. He then left the victim’s apartment and was approached by Collins. Dupree Mirandized Collins and then explained to him the nature of the investigation. Dupree testified that the defendant told him that he did not have permission to be in the apartment stating, “He knew not to be in there alone with her.”

| ¡¡Whitney Farris arrived home and noticed the law enforcement vehicles centered around their apartment building. She went into her apartment and told the defendant that there were police outside and that he stood up abruptly and left the apartment. Shortly thereafter, Farris attempted to take J.G. her mail, but was stopped at J.G.’s front door by a law enforcement officer. She returned to her apartment, where she was approached several minutes later by another officer who explained the situation and asked for consent to search the apartment. Farris voluntarily gave her consent.

During the search, officers discovered three sandwich-type bags of marijuana, a digital scale, a manual scale, and small “baggies” typically used to separate a large quantity of marijuana into smaller quantities for resale. Detective Mark Johnson was accepted by the trial court as an expert in the field of “packaging and distribution of marijuana.” Johnson testified that the marijuana was packaged into different size bundles to please a variety of buyers and that scales were usually found in cases of distribution because sellers wanted to make sure that they were not being ripped off by others. Johnson testified that it was his opinion that there was an intent to distribute indicated by the amount of marijuana and other evidence found in the apartment.

After searching the apartment, officers asked the defendant about the drugs found in the apartment. According Deputy John Dupree, the defendant stated that he had bought the drugs that same night from a guy out of town and that he had paid four hundred dollars ($400.00) for it.

|4The jury returned three responsive verdicts of guilty to: attempted sexual battery, unauthorized entry of an inhabited dwelling, and attempted possession of marijuana with intent to distribute. The defendant was sentenced to four years at hard labor without benefit of probation, parole or suspension for the attempted sexual battery conviction; three years at hard labor for the unauthorized entry conviction; and ten years at hard labor, the first four years without benefits, the remaining six years suspended, with five years’ supervised probation for the attempted possession with intent to distribute conviction.

The defendant now appeals.

LAW AND DISCUSSION

Assignment of Error Number 1: Sufficiency of the Evidence

The defendant asserts five assignments of error in this appeal. In his first assignment of error, the defendant challenges the sufficiency of the evidence. More specifically, the defendant argues that the state failed to prove that he committed the crime of unauthorized entry of an inhabited dwelling, because the state failed to prove that he did not have permission to enter the apartment and failed to show any forced entry into the apartment. The defendant implies that either Flores or the victim gave him a key. The defendant also argues that the state failed to prove that he committed the crime of attempted sexual battery. Noting that he left the room when asked to do so and then returned after the victim was dressed, the defendant argues the state failed to prove that the defendant did not have consent to touch the l5victim. Finally, the defendant argues that the state failed to prove the requisite intent for attempted possession with intent to distribute.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Under the Jackson v. Virginia standard, we review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Bosley, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96),680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

|7La. R.S. 14:27 states: “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

The defendant argues that the state failed to prove that he did not have permission to be in the victim’s home. La. R.S. 14:62.3 defines unauthorized entry of an inhabited dwelling as:

The intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.

The evidence shows that the defendant entered the home of the victim and stood in her bedroom waiting for her to finish her shower. The victim testified that the defendant did not have permission to be in her home and that she asked Justin Flores to lock her inside because she was going to take a shower. No evidence suggested that the defendant had permission to be in the home. The defendant argues that Justin Flores could have given the defendant permission to be in the home. However, when Justin Flores testified, he made no statement that suggested that he gave the defendant permission to be in the apartment. Viewing the evidence presented in the light most favorable to the prosecution, we affirm the conviction for unauthorized entry.

La. R.S. 14:43.1 defines “sexual battery” as:

The intentional engaging in any one of the following acts with another person where the offender acts without the consent of the victim ... (1) The touching of the anus or genitals of the | ¿victim by the offender using any instrumentality or any part of the body of the offender

The defendant argues that the state failed to prove that the defendant did not have consent to touch the victim. The defendant left the room when the victim yelled at him to get out and then returning once she was in her closet. The victim testified that the defendant did not have permission to be in her home and that when she saw the defendant, she yelled for him to leave the apartment and thought he had. When she then went into her closet to put on clothes, he reappeared in her closet and began to touch her. The victim testified that she continued to yell at him to leave and then wrenched herself from his grasp and fled the apartment. The defendant’s statements to the investigating officers indicated circumstances that were very similar to those explained by the victim.

When there is conflicting testimony, it is up to the trier of fact to make a determination of credibility and such a determination should not be overturned on appeal save to protect fundamental due process. This court will not alter a reasonable credibility determination made by the trier of fact. The attempted sexual battery conviction is affirmed.

Finally, the defendant argues that the state failed to prove that he had the requisite intent required to support the attempted possession with intent to distribute conviction. La. R.S. 40:966(A) establishes that:

“It shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance analogue classified in Schedule I ...”

19Intent is a question of fact to be decided by the trier of fact; it need not be proven as fact, but may be inferred from the circumstances. State v. Wiley, 40,289 (La.App. 2 Cir. 10/26/05), 914 So.2d 1117. Circumstantial evidence from which the intent to distribute may be inferred includes the quantity of the substance, equipment, and supplies found with it, where it was found, manner of the packaging, and the testimony of experts knowledgeable in the field. State v. House, 325 So.2d 222 (La.1975).

The state presented evidence that marijuana was found in the defendant’s home packaged in a manner consistent with distribution, along with scales and “baggies,” which are commonly used to measure and package marijuana for distribution. As cited above, intent is a question of fact. Here, the trier of fact made a determination based on the testimony of the officers who had searched the defendant’s apartment as well as Detective Johnson’s expertise in the field of narcotics to make a determination that, under the circumstances, the defendant had the requisite intent. The evidence is sufficient to support such a finding.

This assignment is therefore without merit.

Assignment of Error Number 2: Motion to Suppress

In the defendant’s second assignment of error, he asserts that the trial court erred in denying his motion to suppress the marijuana seized from his apartment. He contends that the motion to suppress was erroneously denied because the law enforcement officers should have asked his permission to search the apartment after obtaining consent from the defendant’s co-tenant.

| lflPursuant to La. C. Cr. P. art. 703(D), the state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant:

D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

Therefore, the state bears the burden of showing that probable cause and exigent circumstances justified a warrantless search and seizure. State v. Hemphill, 41,526 (La.App. 2d Cir.11/17/06), 942 So.2d 1263, 1271, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.

The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial motion to suppress. State v. Young, 39,546 (La.App. 2d Cir.03/02/05), 895 So.2d 753. Our review is not confined to the transcript of the hearing on a motion to suppress. State v. Young, supra.

This court reviews the district court’s ruling, on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Hemphill, supra.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme Court considered the validity of a warrantless search of a home when consent to search was given, not by the defendant, but by a co-occupant of the home. The facts were that the defendant was arrested in his front yard and taken to a waiting police car. In The officers then asked the woman who lived in the home with the defendant for consent to search, and she granted it. In that case, the Court held that such a consent is valid, and the evidence discovered admissible at the defendant’s trial.

Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), a more recent case, also considered the validity of a co-occupant’s consent to search, but had a slightly different holding. In that case, the United States Supreme Court once again affirmed the validity of a warrantless search with consent of a co-oecupant; however, the Court stated that one occupant’s consent could not trump the refusal of another occupant. In the instant case, law enforcement officers were leaving the apartment of the victim when they were approached by the defendant. He gave a statement impheating himself in the criminal activity that had been reported by the victim and was placed under arrest. The officers then placed him in a vehicle and went to his apartment to question his girlfriend, Whitney Farris, who lived there with him. Farris gave the officers consent to search the apartment. While searching it, they located marijuana and paraphernalia indicative of distribution.

The evidence presented did not indicate that the officers removed the defendant from his home in an attempt to prevent him from objecting to a search, or that they purposefully avoided seeking his permission by ignoring any objection by him. Rather, they proceeded with the investigation by questioning potential witnesses, including Farris. In the process of questioning Farris, the officer obtained her consent to search the apartment |i2she shared with the defendant. Her consent was valid. The record does not show that the officers obtained Farris’s consent after a refusal by the defendant. The officers placed the defendant under arrest for the crimes they already knew he committed and continued their investigation while the defendant was located in one of their vehicles. For these reasons, we find no error in the trial court’s denial of the motion to suppress.

Assignment of Error Number 3: Jury Challenge

In the third assignment of error, the defendant argues that the trial court erred in denying his Batson challenge regarding the exclusion of jurors based upon race. He asserts that the race-neutral reasons for the peremptory challenges of two black jurors from the first panel were not sufficient to satisfy the requirements of Batson and that the dismissal of those jurors was discriminatory.

It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in our law in La. C. Cr. P. art. 795.

In State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, the proper reviewing process for a Batson claim is set forth as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not |^inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (citations omitted.)

Since the trial judge’s findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991).

During voir dire, the defendant raised a Batson challenge after the state peremptorily challenged an African-American male and an African-American female from the potential jury panel. Shermekia Bush and Brian Burrell were challenged and excused by the court.

The defense pointed out that because Burrell had not been asked any questions, there could be no cause for his release except race. The State was then asked to give its race-neutral reasons for the challenges to Bush and Burrell:

To respond, your Honor, I’ll start with Mr. Burrell since he was last mentioned. That’s exactly the reason he was. We exercised the preempt is [sic] because through some reason he was never asked any questions. He never raised his hand in response to any questions. Um, and so I was just a little fearful. Didn’t really get an opportunity to speak with him. That’s simply the reason we filed the strike back on him. Not strike back. Peremptory challenge on him. And as to Shermekia Bush, she’s the cousin of-she did not name him by name-but of an individual who was recently convicted of vehicular homicide and murder. It has to be Jatazz Warren. I helped out with that trial for Jatazz Warren. I don’t care what the woman says she thinks he was wrongly accused of it. Um, and that’s the reason, certainly that’s a race neutral reason for her, for us exercising a peremptory challenge. There’s four black jurors left after the three causes. Two of which we |udidn’t’ [sic] challenge. Those are the reasons we challenged them.

The defense responded that Bush stated that she could be impartial, and the state reiterated that it was a peremptory challenge. The Court ruled:

I understand. The State has certainly presented racially neutral reasons for excluding Ms. Bush. And really even before you get to that test that part of the test it’s whether there’s been a systematic exclusion of a particular race. And the Batson challenge and the reverse Batson challenge. The State has ten additional peremptory challenges remaining. They chose not to strike Angelo Monk, Jacqueline Hamilton and also Tony Gibson. So at this point there’s no systematic exclusion of black juror members. There’s really no race neutral reasons at this point why Brian Burrell was not, uh, was stricken. But that really is not relevant at this point because there’s no systematic exclusion of black members of the jury. So the Court will note the objection but the Court will deny the Batson motion.

The state then stated as another reason for challenging Burrell that he has a disturbing the peace and two counts of simple battery misdemeanors, which “obviously [sic] not felony convictions but they did play a part in our decision. Criminal history. Specifically the two simple batteries.”

The trial court’s final determination was that:

Certainly they have good grounds to challenge Shermekia Bush. The only one questionable is Mr. Burrell but there’s no systematic exclusion at this point. Because there are, there are three black potential members of this jury who were not stricken by the State. Two that were. And although there were no peremptory challenges exercised for white members of this jury panel, there’s no systematic exclusion based on the fact that the State elected to strike the two that were stricken. So I’ll deny the motion.

Applying the reasoning in State v. Draughn, supra, to the present case, the defendant has failed to show that the trial court erred in denying its Batson challenges. Under Draughn, the first question is whether the defense has made a prima fa,cie showing that the peremptory challenges hr,were based on race. After reviewing the record, it is presumed that the court believed the defendant had met that burden. The state was then required to present race-neutral reasons for the peremptory challenges. Under Draughn, the state’s reasons need not be persuasive, or even plausible, but simply race-neutral. Here, the state justified its challenge of Bush based on the recent prosecution of her cousin. The state also gave several reasons for challenging Burrell, including that he wasn’t questioned thoroughly, he did not raise his hand when questions were addressed to the entire panel, and his pri- or misdemeanor convictions. While the trial court may not have found the reasons for the challenge of Burrell persuasive or plausible, they were race-neutral. It was then the court’s option to determine whether the defendant had proven “purposeful discrimination.” Here, the trial court found that the defendant had not met that burden because three black members of the potential jury panel were not challenged.

Based on the voir dire transcript and the transcript of the Batson discussion between the opposing parties and the trial court, the defendant has not shown that the trial court was clearly erroneous in denying its Batson challenge.

This assignment is therefore without merit.

Assignment of Error Number U: Expert Testimony

In the fourth assignment of error, the defendant contends that the trial court erred in allowing Detective Mark Johnson to provide expert testimony that was “tantamount to an opinion that the defendant was guilty of the crime charged.” State v. Wheeler, 416 So.2d 78 (La.1982). The defendant 11fiasserts that such testimony invaded the province of the jury and directly resulted in his conviction for attempted possession of marijuana with intent to distribute.

Louisiana Code of Evidence Article states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.

Moreover, Article 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Pursuant to this article, a trial judge may admit expert testimony which “embraces an ultimate issue to be decided by the trier of fact,” but the expert witness is not permitted to testify to the ultimate issue of a defendant’s guilt. State v. Irish, 2000-2086 (La.1/15/02), 807 So.2d 208.

This court held in State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), that a police officer’s expert testimony that he had examined the contents of a pill bottle, estimated the value of cocaine, and determined that the amount was consistent with distribution was permissible since the officer did not say that either the defendant or a hypothetical person was guilty of distribution.

In State v. Smith, 2003-0917 (La.App. 1st Cir.12/31/03), 868 So.2d 794, the court determined that testimony by a detective, who was an expert in narcotics, that opined a certain amount of marijuana seized from the |17defendant was not for personal consumption, was deemed permissible in a prosecution for possession with intent. The court explained that the average individual would not have knowledge of the amount of narcotics normally used for personal consumption. Also, the detective did not express an opinion as to guilt or innocence. State v. Smith, supra.

Louisiana jurisprudence has condemned the use of hypothetical questions that parallel the actual fact situation of the case. The prosecutor may not get the expert witness to give an opinion about whether the hypothetical person described “would be involved in the distribution of marijuana.” State v. Smith, 2003-0917 (La.App. 1 Cir.12/31/03), 868 So.2d 794.

In the present case, Detective Mark Johnson was accepted as an expert in the field of packaging and distribution of marijuana. He testified with regard to the marijuana and other items discovered at the defendant’s home:

DETECTIVE JOHNSON: Specifically what jumps out at me right off the bat, is you’ve got here each one of these are a quarter pounder. Basically what’s referred to on the street as a QP of marijuana. These things are supposed to weigh approximately a hundred twelve (112) grams apiece. This here is one individually packaged deal. Ounce of marijuana. This should weigh somewhere in the neighborhood of twenty eight (28) grams or one ounce. That’s where we at. I see a set of digital scales here. Uh, a set of manual scales for otherwise commonly known when they’re not being used for illegal purposes these are postal scales if you will. But manual scales. And several baggies of individuals, what they would be referred to on the street as dime bags. A dime referring to Ten Dollars ($10.00). That’s how much these things would go for. And obviously a big bag to hold it all together.
INSTATE: Now looking at the three baggies itself with the marijuana in it, what is important about that being in the quarter and the ounce size bags?
DETECTIVE JOHNSON: This right here is an indicator that these things were packaged for individual sales. Whenever a person would come up they want to buy — they may not have but Ten Dollars ($10.00) on them. Well, you sell them Ten Dollars ($10.00). You don’t sell them something for Two Hundred Fifty Bucks ($250.00). You have individual packaging here for quick sales depending on what the drug user wants to use and what he wants to buy. He can go as little as Ten Bucks ($10.00) as much as up to whatever you can negotiate this for.
STATE: So the varying sizes of the packaging indicates distribution?
DETECTIVE JOHNSON: Or possession with intent-Yes Ma’am.
STATE: And what about those two packages that came to be the same weight. What does that signify to you?
DETECTIVE JOHNSON: That he’s— whoever this person is has sat down and made a conscious to [sic] weigh up package so that way he’ll know whenever he’s making a sale that hey, I want a QP. He’s got this right here. If the guy only wants an ounce he’s got that already packaged ready to go. If the person only wants a little dime bag ready to go he’s got that. So these were packaged into whatever size the person that wants to buy so he can buy as little or as much as he wants to. In this.

Detective Johnson then described the use of scales in distribution of marijuana. He believed all of this marijuana was not for personal use because no implement in which to smoke the marijuana was found with the drugs.

The state then concluded its questioning with the following exchange:

STATE: And is it your opinion from what you’ve seen from this evidence that the person in possession of that marijuana had the intent to distribute that marijuana?
|19DEFENSE COUNSEL: I object to that question, your Honor. That goes to the province of the jury.
STATE: Your Honor.
BY THE COURT: Repeat the question.
STATE: My question is is it your opinion from what you’ve seen today that the person in possession of this marijuana had-I’ll rephrase the question. Is it your opinion from what you’ve seen today that there, the way that that marijuana is packaged that there’s an intent to distribute?
COURT: Overruled.
DETECTIVE JOHNSON: Yes, Ma'am.

In this case, Detective Johnson was merely giving his opinion that the quantity of drugs, their packaging, and the paraphernalia were consistent with distribution. He based his opinion upon his many years of experience and training. Knowledge of the amount of marijuana usually possessed for sale or distribution, as distinguished from amounts used or possessed for personal consumption, was not a fact within the knowledge of the average individual. State v. Smith, supra. Moreover, Detective Johnson never explicitly stated that the defendant was guilty of possession of marijuana with intent to distribute. This assignment has no merit.

Assignment of Error Number 5: Excessive Sentence

In the fifth and final assignment of error, the defendant asserts that the sentences imposed are excessive. More specifically, the defendant argues that the trial court erred in ordering that the attempted possession with intent sentence should be served without benefits, because La. R.S. 40:966 B(3) does not provide for imposition of sentence without benefits. Additionally, the defendant argues that the trial court failed to give adequate Lnconsideration to his lack of a significant criminal history, the effect of incarceration on his family, and his medical and educational history.

La. C. Cr. P. art. 881.1(E) applies to defendant’s sentence, which provides in pertinent part:

E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exces-siveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Inasmuch as the defendant did not file a La.C.Cr.P. art 881.1 motion to reconsider his sentence, we will limit our review to the bare claim that his sentence is constitutionally excessive. State v. Masters, 37,-967 (La.App. 2d Cir.12/17/03), 862 So.2d 1121.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37,442 (La.App. 2d Cir.8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of an excessive sentence, an appellate court uses a two-step process. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the [^guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, the determination of whether the sentence imposed is too severe is contingent upon the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light ofj^the harm done to society, it shocks the sense of justice. State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

The defendant was convicted of attempted sexual battery, which carried a possible sentence of 5 years; attempted possession of marijuana with intent to distribute, which carried a possible sentence of 15 years; and unauthorized entry of an inhabited dwelling, which carried a possible sentence of 6 years. The defendant was sentenced to 5 years for the attempted sexual battery conviction, 10 years for the attempted possession with intent conviction, and 3 years for the unauthorized entry conviction. The defendant now argues that these sentences are excessive.

The record shows that the trial court specifically considered aggravating and mitigating circumstances, thereby complying with La.C.Cr.P. art. 894.1, and tailored the sentence to the instant offense and this offender. The trial court relayed the facts of the case and the defendant’s criminal history. The trial court also addressed the defendant’s “social history,” including mentioning the defendant’s girlfriend, who already had a two-year-old daughter with the defendant and was pregnant, at the time of the sentencing, with his second child. The trial court stated that the defendant admitted daily use of marijuana and that he was on active probation at the time the instant offenses were committed. As a result, his probation was revoked and he was in the middle of serving a 3-year sentence. The defendant has not shown that the trial court failed to consider the Article 894.1 factors.

leaThe record does not show that the defendant’s sentence is grossly out of proportion with the acts committed. With regard to the attempted sexual battery conviction, the defendant was sentenced to the maximum of 5 years at hard labor without benefit of probation, parole or suspension. The defendant was originally charged with sexual battery and faced a 10-year sentence, and although he was only convicted of attempted sexual battery, the defendant has not shown that this was a “purposeless and needless inflection of pain and suffering.” With regard to the attempted possession with intent to distribute conviction, the defendant faced a term of up to 15 years and was actually sentenced to 10 years at hard labor, the first 4 years without benefit, the remaining 6 years suspended, with 5 years supervised probation. This sentence is nowhere near the maximum that the defendant faced, and the defendant has, again, failed to show that this was a needless infliction of pain and suffering. Finally, for the unauthorized entry conviction, he was sentenced to 3 years at hard labor, when he faced 6. This sentence is half that to which the defendant was exposed and the defendant has failed to show that this was a needless infliction of pain and suffering.

Further, it should be noted that these sentences are to be served concurrently, meaning the defendant’s total jail time is only 5 years. The defendant’s exposure for all three crimes, if served consecutively, would have been 26 years. The defendant’s resulting sentence of 5 years does not show a needless infliction of pain and suffering.

1This assignment is therefore without merit. However, the defendant is correct, and the state concedes, that the trial court erred in denying the defendant the benefit of parole for the attempted possession with intent to distribute conviction. For that reason, we amend the sentence to delete the prohibition of parole, but affirm the remainder of his sentence.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentences, but amend the defendant’s sentence for attempted possession with intent to distribute to remove the prohibition of parole.

AFFIRMED AS AMENDED.

      . The victim’s initials are used in lieu of her name. La. R.S. 46:1844(W).

      . These sentences are to be served consecutively to any other sentences. Because the defendant was imprisoned on a probation revocation, the sentences will be added to the end of the term he is currently serving.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. David PUGH, Jr., Appellant.
    No. 44,251-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 27, 2009.
    Louisiana Appellate Project by Annette Fuller Roach, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy Jan Johnson, Brady D. O’Callaghan, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

11 David Pugh, Jr., appeals his conviction for the crime of molestation of a juvenile. We affirm in all respects.

CHRONOLOGY

In the early part of 2002, defendant, then age 32 (DOB October 13, 1969), had lewd contact and nonconsensual sex in western Caddo Parish with a 14-year-old female (DOB October 17, 1987) named D.J. Thus the age difference between the two was almost exactly 18 years. An amended bill of information, filed on January 14, 2008, charged him with molestation of a juvenile, a violation of La. R.S. 14:81.2. On January 15, 2008, the required unanimous six-person jury found Pugh guilty as charged. A post-judgment motion for acquittal was denied. After his adjudication as a fourth felony habitual offender, a'presentence investigation was ordered. Pugh was sentenced to life at hard labor, without benefits. A motion to reconsider sentence was denied.

FACTS

At the preliminary examination, Det. Janice Dailey of the Shreveport Police Department testified that D.J. stated that the sexual intercourse happened “on the side of Interstate 20, somewhere between the city limit sign and the Pines Road exit.” Therefore, the crime occurred in both Cad-do Parish and in Shreveport.

li>At no point in the trial court was venue placed at issue. During her trial testimony, Det. Dailey was neither asked about, nor did she testify as to the location of the crime. Her testimony established the birth dates of Pugh, D.J., and D.J.’s son, Q.J. Through Dailey’s testimony, the state introduced forms authorizing the taking of epithelial cells. The officer testified that she utilized cheek swabs to capture cells by which to establish DNA profiles from D.J. and Q.J. Det. Scott Musser of the SPD testified that he took cells from Pugh, pursuant to a signed authorization from Pugh.

D.J. identified Pugh in court and testified about his picking her up on Laura Street in Shreveport. He offered her a ride to her grandmother’s house and she got into the car with him, but they went elsewhere.

Apparently D.J. misspoke in part when she testified at trial:

Well, we went — like I said, we went on the interstate, but once we got on the interstate the car broke down. And that’s when I noticed we was like across the Dallas state line. And the car had broke down.

(Our emphasis.)

D.J. said that when they got on the interstate Pugh was not talking to her; instead, “The music was playing.” When asked when Pugh started talking to her, she answered that he asked her for sex and she refused. When asked what happened when the car broke down, she answered:

A. He reached over and — do you want the details and all of how he did it?
Q. Yeah. Was he touching you at all?
|oA- Yes.
Q. Where was he touching you?
A. On my thigh part, rubbing his hand.
Q. Was this while the car was still moving?
A. Yes.
Q. And after the car broke down, did he continue to touch you?
A. Yes.
Q. And how was he touching you then?
A. He started feeling on me then.
Q. Did he lean the seat back in the car at all?
A. He leaned my seat back, the passenger seat back.
Q. And what happened then?
A. That’s when he climbed on top.
Q. And what did he do after he climbed on top of you?
A. He pulled my clothes down and held both my arms back and had intercourse.
Q. Were you telling him no?
A. I had told him don’t do it. I told him to stop and he still did.
Q. And he held you down?
A. Yes.

D.J. further testified that:

• after Pugh had intercourse with her, they waited a few minutes before the tow truck arrived and rode back in the truck to Shreveport;
• Q. J. was born on October 7, 2002, but when the boy was born she had no idea who the father was;
14» she had sexual relations with others prior to the baby being conceived;
• she did not remember discussing the incident with a woman police officer, giving a recorded statement, or telling the officer that the incident happened just after school had gotten out for spring break;
• she had sex with Pugh only the one time;
• after the incident, Pugh and the wrecker driver dropped her off in Shreveport, near her cousin’s house;
• she was 10 days shy of 15 years old when the baby was born;
• Q. J. was not born prematurely; and
• at the time of the birth, she asked her mother who the baby looked like, and her mother told her the baby looked like Pugh.

DNA evidence was introduced through the testimony of Connie Brown, a senior forensics scientist of the North Louisiana Criminalistics Laboratory, who indicated that the baby’s father was indeed Pugh.

Det. Dailey was recalled to the stand to testify about taking D.J.’s recorded statement, in which the victim could not provide an exact date for the incident, but had stated that it was sometime around the time she had gotten out of school for spring break. Dailey added:

She specifically mentioned the best— and according to my report — something about spring break, getting out or she had either just gotten out for spring break or was just going back from spring break. I think she couldn’t exactly remember which it was.

DISCUSSION

I. Alleged Unconstitutionality of La. Code Cr. P. art. 615

In appellate brief, defendant challenges the constitutionality of venue being decided by judge, instead of by jury. This matter was not specially pled in the trial court, so it is not properly before us. We decline to consider |sit. See State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), and State v. Hatton, 2007-2377 (La.7/1/08), 985 So.2d 709.

II. Venue

La. C. Cr. P. art. 615 states:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

(Our emphasis.)

Venue was never placed at issue in the trial court, not before the trial, not during the trial, not in argument, not in any requested jury charge, and not in the motion for post-verdict judgment of acquittal. Nonetheless, the defendant argues, without authority, that the state still should have proven venue at trial by a preponderance of the evidence.

State v. Rideout, 42,689 (La.App. 2d Cir.10/31/07), 968 So.2d 1210, is one of many cases holding that a defendant’s failure to file a motion to quash waives any issue of venue.

Through discovery and prior sworn testimony, it was clear that the criminal act(s) occurred in western Caddo Parish. If Pugh felt, however, that all criminality occurred in Texas, then nothing precluded his filing a motion to quash, to place the matter at issue. As the perpetrator, he presumably knew where the actual act occurred and could have provided this information to counsel. Defendant has not distinguished his case from those of other defendants who have waived this issue. Had this issue been traversed, there is nothing to suggest that Det. Dailey would have testified |fiany differently than she did in her sworn preliminary examination testimony, which established Caddo Parish as the locus of the crime.

In State v. Clark, 2002-1463 (La.6/27/03), 851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98, the Louisiana Supreme Court held that a defendant who fails to file a motion to quash prior to trial has waived his right to assert the claim of improper venue on appeal. Likewise, in State v. Pierre, 2004-0010 (La.App. 4th Cir.2/25/04), 869 So.2d 246, the Fourth Circuit came to the same conclusion.

This conviction is neither patently erroneous, nor does it produce unjust results. See State v. Surratt, 2005-1406 (La.App. 3d Cir.6/7/06), 932 So.2d 736, unit denied, 2006-2100 (La.6/1/07), 957 So.2d 165.

Interstate territorial jurisdiction is arguably a more difficult issue than intrastate venue, though this defendant surely knew where he picked up the victim, when he began touching her, where he held her down, where the act of intercourse occurred, and where he dropped her after the event. A judge alone must decide the issue of territorial jurisdiction, but only if that issue is brought before the court before trial, as mandated by the Code.

Very recently, in State v. Johnson, 43,-843 (La.App. 2d Cir.1/28/09), 2 So.3d 606, with regard to La. C. Cr. P. art. 615, this court stated:

Under this article, if the defendant feels that he is being charged for an offense that occurred in another parish, or that the state cannot prove the venue of the alleged crime, he must 17raise the issue before trial by a motion to quash, and it must be decided by the court before trial. State v. Rideout, supra; State v. Gatch, 27,701 (La.App.2d Cir.2/28/96), 669 So.2d 676, writ denied, 1996-0810 (La.9/20/96), 679 So.2d 429. The reduced burden of proof listed in La. C. Cr. P. art. 615 states that the venue of the crime is not an element of the crime. Accordingly, the defendant’s failure, to file a motion to quash waives any issue of venue. State v. Rideout, supra; State v. Gatch, supra.

III. Ineffectiveness of Counsel

Defendant argues that if the venue issue was not properly preserved, then trial counsel erred in failing to raise the issue at the trial court level at the time it became obvious that the trial court lacked jurisdiction over the matter, and that inaction by-trial counsel would amount to deprivation of effective assistance of counsel. We disagree. The defense lawyer may have deliberately chosen a strategy at trial of avoiding the excessive airing of these sordid details.

A defendant who did not file a motion to quash raising venue as an issue could not successfully assert on appeal that the trial court lacked jurisdiction due to failure to prove venue. State v. Matthews, 93-0275 (La.App. 1st Cir.1993), 632 So.2d 294. Venue is a factual question. Even if we were to examine this issue, it is clear to us that ample evidence is in this record establishing Caddo Parish as the venue of this crime, which started and ended in Caddo Parish, Louisiana.

At any rate, any claim of ineffective assistance is usually addressed not on direct appeal but in post-conviction proceedings, where a record can be developed. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100; State v. Langston, 43,923 (La.App. 2d Cir.2/25/09), 3 So.3d 707.

This record contains information establishing venue in the detective’s preliminary hearing testimony. The record does not support a finding that counsel’s failure to file a motion to quash fell below the objective standard of reasonableness under prevailing professional norms and resulted in actual prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Matthis, 2007-0691 (La.11/2/07), 970 So.2d 505, writ denied, 2000-3552 (La.11/9/01), 801 So.2d 358.

IV. General Insufficiency

The provisions of La. R.S. 14:81.2(A) state:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, ■with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

(Our emphasis.)

Our law on sufficiency of evidence is well settled.

lain State v. LeBlanc, 506 So.2d 1197 (La.1987), the supreme court held that the “use of force” element requires proof of force “substantially greater than or substantially different from the force which is necessary to commit the less serious offense of indecent behavior with juveniles.”

Article 611(A) states that if acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred. This evidence convinces us, beyond a reasonable doubt, that Pugh, when he picked up D.J., had “the intention of arousing or gratifying his sexual desires.” He then committed many lewd or lascivious acts upon D.J. by rubbing her while the car was still moving. It is therefore reasonable to conclude that at least some of this reprehensible conduct occurred in Caddo Parish.

The state argues that:

• some of the continuing force and duress over the victim at least started in Caddo Parish, thus proving venue as governed by La. C. Cr. P. art. 611;
• D.J.’s testimony “clearly” demonstrated force and duress over her occurring in Shreveport by Pugh having her get into his vehicle and then taking her “somewhere other than her intended destination”; and
11f># at that point, D.J. found herself in a moving vehicle on an interstate highway, subject to Pugh’s discretion and control, sufficiently proving force and duress.

Enough of the continuing criminal conduct occurred in Caddo to allow us to affirm this conviction.

An analogous case is this court’s opinion in State v. Overby, 30,589 (La.App. 2d Cir.4/8/98), 714 So.2d 28, wherein venue was at issue. In affirming a denial of a similar motion to quash, the venue calculus included:

• the crime occurred, at least in part, in a private vehicle in transit in the state; and
• the defendant returned the victim to the parish (of contested venue) after the rape.

The jury here followed their instructions, and apparently believed the victim that the defendant used force upon her.

Defendant made a point in closing argument that because Q.J. was born in early October (and D.J. testified he was not premature), the conception more likely occurred in early January, not around the time of D.J.’s spring break. This is of no moment. Whatever the time frame, Pugh was the child’s father. The jury heard the young woman testify as to the force used by the defendant, and the jury felt it sufficient to render a verdict of guilty as charged for the crime of molestation of a juvenile. We agree. We affirm the conviction.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Initials of the victim are used per La. R.S. 46:1844(W).

      . Far more than the more than two years required by the statute.

      . Six years after the molestation.

      . He has actually been convicted of six felonies.

      . See Footnote 1.

      .Neither the state nor the defendant followed up on this answer. Could she have meant that they had passed a road sign to Dallas?

      . Courts throughout the nation are split as to whether territorial jurisdiction should be decided by a judge or jury, and there may be more jurisdictions that would send the question to a jury. This being written, that result is not mandated and we feel that the better practice would be to have the matter decided by a judge.
      For thorough treatment of both sides of this issue, see People v. Betts, 34 Cal.4th 1039, 23 Cal.Rptr.3d 138, 103 P.3d 883 (2005), and State v. Butler, 353 Md. 67, 724 A.2d 657 (1999).

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,-981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.