text:
    STATE of Louisiana v. Louis BOYD, Jr.
    No. 12-CA-722.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Appellee.

      Louis Boyd, Jr., Oakdale, LA, In Proper Person.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

| gLouis Boyd, Jr. appeals the forfeiture of his pick-up truck in a state court civil proceeding. Mr. Boyd argues that the trial court erred in ordering the forfeiture of his truck because it lacked jurisdiction, it admitted hearsay testimony, and the forfeiture case did not derive from a state court narcotics conviction. For the following reasons, we reject each of these assignments and affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On December 19, 2008, the State of Louisiana filed in a civil proceeding an application for seizure and forfeiture of Louis Boyd, Jr.’s property: a 1996 Ford Ranger pick-up truck and three items of cocaine at 0.9 grams, 0.2 grams and 0.5 grams. That application included the affidavit of Lieutenant Roddy Landry in which he testified that Mr. Boyd was engaged in the sale of narcotics on at least four occasions between May 1, 2008 and August 14, 2008 and that on at least two occasions, he used the pick-up truck at issue here. On the same filing date, the judge signed the application, and the vehicle was seized.

|sOn January 28, 2009, Mr. Boyd filed an affidavit of ownership, contending that the “subject property has not been in any way involved in any narcotics trafficking.” Thereafter, on February 17, 2009, the State filed a petition for forfeiture under La. R.S. 40:2604 seeking to have the vehicle and cocaine forfeited. On July 9,- 2012, the trial court conducted a trial on the merits and signed a judgment in favor of the State ordering a forfeiture.

LAW AND DISCUSSION

In his first assignment of error, Mr. Boyd argues that the trial court’s judgment is null and void because the trial court lacked jurisdiction. A trial court’s jurisdiction is comprised of both subject matter jurisdiction over the dispute and personal jurisdiction over the parties. See A & L. Energy, Inc. v. Pegasus Grp., 00-3255 (La.6/29/01), 791 So.2d 1266, 1275. Here, Mr. Boyd disputes both elements of jurisdiction.

On the question of subject matter jurisdiction, Mr. Boyd contends that the Louisiana trial court lost jurisdiction to conduct forfeiture proceedings when the criminal proceeding was transferred from state court to federal court on March 5, 2009. He argued that since the State did not timely move to remand the criminal case pursuant to 28 U.S.C. § 1447 within 30 days of removal, the state district court was without authority to conduct the forfeiture proceeding.

Lack of subject matter jurisdiction can be raised at any time even on appeal. Harbour v. Harbour, 95-2168 (La.App. 1 Cir.1996), 677 So.2d 700. The issue is not waived by trial. Id. A court of appeal even has a sua sponte duty to examine subject-matter jurisdiction when the parties do not raise the issue. Trunk v. Berg, 03-1120 (La.App. 5 Cir.2004), 866 So.2d 922.

Here, the basis for the trial court’s subject matter jurisdiction over this forfeiture proceeding is authorized in the Louisiana constitution and is granted by ^statute. LA. CONST. ART. V., § 16 provides, in relevant part, that district courts will have original jurisdiction in civil matters. Further, the constitution defines civil matters to include forfeiture proceedings such as those at issue in this appeal.

The following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above-described property has been rendered unavailable.

LA. CONST. ART. I, § 4(D) (Emphasis added).

Under this constitutional authorization, the Legislature provided that district courts have jurisdiction over forfeiture proceedings as follows:

[T]he appropriate district court has jurisdiction ... if the property for which forfeiture is sought is within this state at the time the action in filed or the courts of this state have personal jurisdiction of an owner or of an interest holder in the property.

La. R.S. 40:2602.

In this appeal, Mr. Boyd argues the trial court surrendered its civil subject matter jurisdiction over the forfeiture proceeding when the criminal matter was transferred to federal court. We disagree.

The conduct giving rise to forfeiture includes any act or omission in violation of R.S. 40:961, et seq. (Uniform Controlled Substances Law), “regardless of whether there is a prosecution or conviction related to the act or omission.” La. R.S. 40:2603(3); See State v. 2002 Chevrolet Trail Blazer, 12-1148 (La.11/16/12), 104 So.3d 394 (holding that even an acquittal in a criminal case will not preclude the State’s subsequent forfeiture of the vehicle); State v. Property Seized from Terrance Martin, 09-1417 (La.App. 1 Cir. 3/10/10), 37 So.3d 1021 (holding that the State can seize assets without even bringing a criminal chai'ge). Additionally, Louisiana’s statutory drug forfeiture law does not provide an exception from | forfeiture for prior criminal convictions of any sort, federal or State. La. R.S. 40:2605.

Based on this, we find that the matter at bar, the forfeiture of the pick-up truck and cocaine, is an independent civil matter and that its pursuit in State court does not depend on any criminal conviction or even prosecution, in any court. Therefore, we find that the trial court had subject matter jurisdiction over this matter, that the trial court did not lose subject matter jurisdiction over this matter because of other criminal proceedings, and that Mr. Boyd’s argument on this point is without merit.

On the question of personal jurisdiction, Mr. Boyd argues that the State trial court lacked jurisdiction over him sufficient to render it order forfeiting his truck. On examination of the record, we find that Mr. Boyd waived any objection to the trial court’s personal jurisdiction over him when he filed his affidavit denying his truck’s involvement in drug sales without making an objection to the proceedings. The trial court’s personal jurisdiction of the owner is another ground for jurisdiction of the forfeiture proceedings. La. R.S. 40:2602.

A court may gain the authority to render a personal judgment against a party to the proceedings if that party submits to the authority of the court either by commencing an action or by waiving the objection to jurisdiction by failing to timely file the declinatory exception of lack of personal jurisdiction. La. C.C.P. art. 6(3). In order to timely assert such a declinatory exception, La. C.C.P. art. 928(A), in relevant part, mandates that the exception be pled

prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as | ficounsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment.

Here, Mr. Boyd filed his claim for exemption under La. R.S. 40:2610 and answered the petition for forfeiture without objecting to the exercise of personal jurisdiction by the trial court. Because of this, we find Mr. Boyd failed to timely assert his declinatory exception of lack of personal jurisdiction and that he therefore waived this ground for objection.

For these reasons, we find the trial court had both subject matter jurisdiction over this matter and personal jurisdiction over Mr. Boyd. Therefore, Mr. Boyd’s assignment regarding jurisdiction is without merit.

In his second assignment of error, Mr. Boyd argues that the State trial court erred in admitting hearsay from State witness Officer Marlon Shuff. Mr. Boyd avers that Shuffs testimony that defendant distributed cocaine is baseless as he did not witness him exchange drugs and he offered no audio or video evidence at trial in support of his contentions. The State responds that unrefuted evidence in support of the forfeiture was set forth in Lt. Landry’s affidavit attached to the application for seizure and forfeiture in evidence.

A court of appeal may not set aside a finding of fact by a trial court in the absence of manifest error or unless it is clearly wrong. State v. Bell, 10-0583 (La.App. 1 Cir. 10/29/10), 48 So.3d 1253, writ denied, 10-2629 (La.1/28/11), 56 So.3d 962 (applying manifest error standard to trial court’s determination in a drug forfeiture case). Here, this Court cannot say that the trial court was manifestly erroneous or clearly wrong in relying on the affidavit or ordering forfeiture under La. R.S. 40:2601, et seq.

|7In his third and final assignment of error, Mr. Boyd argues the State trial court erred in rejecting his claim that the State has no right to forfeited property because he was not convicted in state court. Defendant cites La. R.S. 40:2611(E) which precludes a convicted defendant from denying allegations of the criminal offense in the forfeiture proceeding. Defendant incorrectly construes this statute to mean that he must be convicted under the State statute for forfeiture to apply.

On this assignment, we find the record reflects that Mr. Boyd failed to raise this issue during the forfeiture trial before the trial court’s ruling. Objections such as this must be timely made in order to be preserved for appeal. See Massey v. Decca Drilling Co., Inc., 647 So.2d 1196 (La.App. 2 Cir.1994), writ denied, 653 So.2d 563 (La.1995) and writ denied, 653 So.2d 564 (La.1995). We hold that Mr. Boyd’s failure to make this objection at trial results in this issue not being preserved for review on this appeal and that therefore, this assignment of error is without merit.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court forfeiting Louis Boyd, Jr.’s property is affirmed.

      . We also note that in State v. 1979 Cadillac Deville, et al., 94-1077 (La.1/16/96), 667 So.2d 510, the Louisiana Supreme Court upheld the civil forfeiture of a 12-year-old vehicle on finding there is no punishment so as to invoke double jeopardy provisions of the Fifth Amendment. The forfeiture was not an overwhelmingly disproportionate civil penalty compared to damages caused by drug trafficking. Under this analysis, the forfeiture of Mr. Boyd's 12-year-old pick-up truck in this case was similarly not “punishment” to consider this matter as a second criminal prosecution.

      . Even if we were to address the merits of this assignment, we would find it to be without merit. As explained above, certain conduct may give rise to forfeiture regardless of whether there is a prosecution or conviction related to that conduct. La. R.S. 40:2603(3); State v. Edwards, 00-1246 (La.6/1/01), 787 So.2d 981.


source: Caselaw Access Project

author:
JUDE G. GRAVOIS, Judge.
      WICKER, J.,

license: Public Domain

text:
    Douglas STEAD and Charlotte Bremermann v. Susan SWANNER, Chandra Sekhar Korrapati, Individually and as the Administrator of the Estate of Srinivas Korrapati a/k/a “Bobby” Korrapati, Kanaka Durga Korrapati, Srinivas Korrapati a/k/a “Bobby” Korrapati, and Sri Lakshmi Properties, LLC.
    No. 12-CA-727.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Terry B. Loup, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Thomas G. Buck, Attorney at Law, Me-tairie, LA, W. Paul Andersson, Russell K. Jarrett, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

[sPreston Stead, a seventeen-year-old high school student, drove while legally intoxicated and died after he crashed his SUV in a single-vehicle accident. His parents, plaintiffs Douglas Stead and Charlotte Bremermann, sued defendant Susan Swanner, the mother of Preston’s friend, Chet Vaughn, at whose home Preston and other teens drank alcoholic beverages that evening. Plaintiffs alleged that Ms. Swan-ner provided inadequate supervision to the teens that evening by failing to prevent Preston from drinking, despite the fact that Ms. Swanner did not purchase or otherwise furnish alcohol to the teens. Plaintiffs alleged that Ms. Swanner breached her duty to the teens because she knew or should have known that they were drinking on her premises based on her knowledge of their past conduct in drinking at her and other teens’ homes. Following a two-day bench trial, the trial court found that under the particular facts of this case, Ms. Swanner owed no legal or statutory duty to Preston or plaintiffs, and accordingly dismissed plaintiffs’ suit with prejudice.

[4On appeal, plaintiffs argue that the trial court committed legal error in conducting its duty-risk analysis, and thus this Court should conduct a de novo review of the trial court’s legal and factual conclusions, rather than applying the manifest error standard. Plaintiffs also argue that the trial court erred in its rulings on their pre-trial motion in limine. Finally, plaintiffs argue that the trial court erred in failing to award them damages on their survival and wrongful death claims.

Upon review, we find that the trial court did not commit legal error in its duty— risk analysis, and thus our appellate review of this matter will be conducted under the manifest error standard. Using this standard, we find no manifest error in the trial court’s factual findings that Ms. Swanner had no actual or constructive knowledge that the teens were drinking alcoholic beverages that particular evening, and thus find no error in the trial court’s conclusion that she owed no legal duty to Preston or plaintiffs under the particular facts of this case. We also find no error in the trial court’s rulings on plaintiffs’ motion in limine. Finally, because the trial court did not err in finding that Ms. Swanner owed no legal duty to Preston or plaintiffs, no survival and wrongful death damages are owed to plaintiffs.

FACTS AND PROCEDURAL HISTORY

On the night of January 27, 2007, Preston Stead, a high school student, was driving his 1999 Tahoe SUV eastbound on Vintage Drive in Kenner, Louisiana, when he failed to negotiate a right turn from Vintage Drive onto Power Boulevard and lost control of his vehicle. Testimony revealed that immediately prior to the accident, Preston had sped up and passed another vehicle driven by a friend, Bobby Korrapati. The road was wet and Preston’s SUV flipped over several times after striking a curb. Preston was not wearing a seat belt and was ejected from his 1 svehicle. He died at the scene. His passenger, Maryelaire Manard, was wearing a seatbelt and escaped from the accident with only minor injuries.

Earlier that evening, Preston and a group of friends had converged at the home of another friend, Chester “Chet” Vaughn, who lived with his mother, Ms. Swanner, in Chateau Estates in Kenner. Present at the Swanner home that evening were Chet Vaughn (age 16), Srinivas “Bobby” Korrapati (age 16), Stephen Gieger (age 16), Donald Muller, Jr. (age 17), Preston Stead (age 17), Maryelaire Manard (age 16), Doug Collins (age 15), Taylor Michaels (age 16), and Sarahbeth Eumont (age 16). Korrapati, Gieger, and Manard testified at trial. The gathering took place in an apartment attached to Ms. Swanner’s house, accessible by a separate door and through an adjacent garage. Korrapati brought at least two cases of beer and a couple of gallons of daiquiris to the Swan-ner home that evening, admittedly purchased by him with the teens’ pooled money. The testimony was uncontradicted that Ms. Swanner neither purchased alcoholic beverages for the teens nor otherwise furnished it to the teens that evening.

Previously, Chet Vaughn had been “grounded” by Ms. Swanner for approximately six weeks because she had found him drinking alcohol at another party. The night of this accident was the first time since then that Chet was allowed to have friends over at the Swanner home. Some of Chet’s friends present that evening had also been present at the earlier drinking party at the other house.

The record shows that Preston arrived first, around 6:00 p.m., with gumbo. Gieger and Collins arrived between 7:00 and 7:30 p.m. Korrapati, Muller, Eumont, Ma-nard, and Michaels arrived around 9:00 p.m. The teens hung out in the garage and in the apartment that was next to the garage. Ms. Swanner stayed mostly in the main part of the house that evening. She testified that she checked on |Bthe teens several times during the evening, entering the garage and an adjacent laundry room to do laundry, and also around 9:15 p.m. to ask if they wanted pizza or something else to eat. She testified that some of her visits to the laundry room were also under the pretext of checking on the teens. She ordered pizza for the teens and brought it to the apartment around 9:45 p.m. She specifically testified that she did not see any evidence of alcohol or alcohol consumption by the teens that evening. Her delivery of the pizza appears to have been the last time she entered the apartment or garage. A photograph taken that evening that was entered into evidence showed some beer cans stacked on a table in the garage. No testimony definitively established, however, exactly when during the evening this photograph had been taken.

Korrapati, Manard, and Gieger all testified that all of the teens actively concealed the presence of alcohol at the Swanner home that evening and evidence of their drinking from Ms. Swanner. They testified that they poured the beer into cups instead of drinking it straight from the cans. They said that they hid the beer in an ice chest instead of keeping it in a refrigerator in the apartment. They also testified that Ms. Swanner did not see the beer cans on the table in the garage. They took all of the empty beer cans and other evidence of their alcohol consumption with them when they left the Swanner home that evening.

Around 11:00 p.m. that evening, the teens decided to go to Sarahbeth Eumont’s house. Right before they left, Preston went into the house and spoke briefly with Ms. Swanner-, obtaining a cough drop from her for one of the girls. The teens then left in several vehicles. After stopping on the way at a gas station to purchase chewing tobacco for one of the boys, the vehicles proceeded down Vintage Drive towards Power Boulevard, at which time Preston began to “race” Korrapati’s vehicle and proceeded to pass him. Preston then lost control of his [ .¡vehicle when he arrived at Power Boulevard and hit a curb, causing his vehicle to flip over several times. Manard was able to crawl out of the vehicle. After the crash, the other teens stopped. One of them remained behind with Preston, while the others called 9-1-1 and went to the nearby home of one of the teens and alerted the parents.

Preston’s blood alcohol concentration (“BAC”) at the time of his autopsy was determined to be .119 grams percent. Dr. Gerald Liuzza, plaintiffs’ expert forensic pathologist as to the effects of alcohol on the body, testified that the alcohol level in the vitreous fluid taken from Preston’s eye measured .142 grams percent, which meant that Preston’s BAC had been at least that high at some point earlier that evening. He also testified that Preston’s alcohol consumption was a significant contributing factor to the accident.

Douglas Stead and Charlotte Bremer-mann, Preston’s parents, filed this survival and wrongful death action against Ms. Swanner and her insurers. The suit alleged that Ms. Swanner hosted the party at which alcoholic beverages were served to and consumed by the minors, including Preston; that Korrapati brought the alcohol to the Swanner home and served it to the other minors with the implied, constructive, or actual knowledge, permission and/or consent of Ms. Swanner; and that Preston consumed enough alcohol at the party to become legally intoxicated, and that as a result thereof, died in the automobile accident. The petition stated the following bases of Ms. Swanner’s liability: (1) allowing alcoholic beverages to be served to Preston at her home; (2) failing to exercise reasonable and proper adult supervision at a party which she hosted for minors to prevent, limit, or otherwise discourage the consumption of alcoholic beverages by the minors; (3) failing to observe the open and obvious consumption of alcoholic beverages by the minors at | sher home; and (4) other acts of non-specified negligence to be shown at the trial of the matter.

In response to the petition, defendants filed an exception of no cause of action, which was denied by the trial court. Defendants later reurged the same exception and arguments that Ms. Swanner had no duty to Preston or plaintiffs. Defendants also filed a motion for summary judgment, alleging that there was no evidence to support plaintiffs’ claims that Ms. Swanner breached a duty to Preston or that such a breach was a cause-in-fact of damages. Additionally, defendants argued that the statutory immunity granted by La. R.S. 9:2798.4 applied to the facts of this case. The trial court granted defendants’ motion for summary judgment, finding that La. R.S. 9:2798.4 granted immunity to Ms. Swanner. A judgment dismissing all of plaintiffs’ claims was entered on January 11, 2010. Plaintiffs appealed.

On December 28, 2010, this Court reversed and remanded the case for trial, finding that the immunity statute was not applicable to this case and that a duty-risk analysis was required.

Prior to trial, plaintiffs filed a motion in limine, seeking rulings that no fault could be assessed to Preston, and that there could be no references in the presence of the jury to any prior instances of Preston’s drinking alcohol. Plaintiffs also argued that no fault could be assessed to plaintiffs, Douglas Stead and Charlotte Bremer-mann, for failure to properly supervise Preston. Finally, they sought a ruling prohibiting any reference to the immunity statute, La. R.S. 9:2798.4.

Ms. Swanner also filed a motion in li-mine, seeking a ruling denying the introduction into evidence of any photographs taken from the Swanner home other than those taken on the night of Preston’s accident, on the basis that they were | irrelevant to the issues before the court, were unreasonably prejudicial, and were not probative. The trial court ruled on the motions that fault could be assessed to Preston and his parents, evidence of Preston’s drinking at locations other than the Swanner residence could be introduced, and photographs of Preston drinking taken at the Swanner residence could be introduced.

A bench trial was held on January 3 and 4, 2012, followed by the filing of post-trial proposed findings of fact and conclusions of law and argument relating thereto by the parties. On May 10, 2012, the trial court issued a final judgment, dismissing plaintiffs’ claims with prejudice. In extensive Reasons for Judgment issued that same day, the trial court found that Ms. Swanner owed no legal or statutory duty to plaintiffs under the factual circumstances of this case. Plaintiffs timely appealed this judgment.

FIRST AND THIRD ASSIGNMENTS OF ERROR

Duty — risk analysis

In their first assignment of error, plaintiffs argue that the trial court committed legal error in conducting its duty — risk analysis. Plaintiffs argue that the trial court’s failure to properly apply the duty— risk analysis requires this Court to now review the record using the de novo standard of review. They argue that had the trial court conducted the proper duty— risk analysis, it would have held Ms. Swan-ner liable. In their third assignment of error, plaintiffs argue that the trial court was manifestly erroneous in finding that Ms. Swanner had no actual or constructive knowledge of the underage drinking at her home on the evening in | mquestion. Due to the fact-intensive nature of the duty— risk analysis, these two assignments of error are closely related and will be discussed together.

When a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court must, if it can, render judgment on the record by applying the correct law and determining the essential material facts de novo. Chambers v. Vill. of Moreauville, 11-898 (La.1/24/12), 85 So.3d 593, 597. Legal errors are prejudicial when they deprive a party of substantial rights and materially affect the outcome. Id., citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735.

Plaintiffs argue that in its analysis, the trial court “ignored the civilian nature of Louisiana tort law,” improperly surveyed common law instead, and concluded that “Ms. Swanner owed no duty under the facts at issue in this matter.” Plaintiffs argue that the statutory basis for Ms. Swanner’s duty is found in La. C.C. arts. 2315 and 2316, which make actors responsible for damages caused by their “imprudence.” Plaintiffs argue that given Ms. Swanner’s knowledge of past incidents of underage drinking at her home, plus her knowledge of underage drinking at other teens’ homes, she should have known that the teens were drinking at her home on the evening in question, and taken appropriate steps to prevent the outcome. Plaintiffs also argue, in their third assignment of error, that the trial court’s conclusion of fact that Ms. Swanner did not have actual or constructive knowledge that the teens were consuming alcohol at her home that night is manifestly erroneous.

Defendants counter that the trial court’s findings of fact were not manifestly erroneous, and its conclusion, following an extensive analysis of Louisiana |, statutory law and jurisprudence, that while adults have affirmative duties not to purchase or furnish alcoholic beverages to minors, no affirmative duty exists under existing law for parents to provide “constant and unremitting” supervision of 16- and 17-year-olds to prevent them from engaging in an activity, drinking alcohol, when the adults do not furnish or purchase the alcohol for the teens, and when the adults have no actual or constructive knowledge of the drinking.

A duty-risk analysis for a negligence claim involves five elements which must be proved by the plaintiff, to-wit: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Long v. State ex rel. Dept. of Transp. & Dev., 04-0485 (La.6/29/05), 916 So.2d 87.

The nature of the duty-risk analysis is highly fact-intensive. Roberts v. Benoit, 605 So.2d 1032, 1056 (La.1991). An answer of “no” to any one part of the analysis requires a finding of no liability. Id.

Upon review, we find that the trial court did not commit “legal error” in its duty-risk analysis. We also find no merit to plaintiffs’ assertion that the trial court misapplied Louisiana law, resorting instead to common law. Our review of the trial court’s extensive Reasons for Judgment shows that the trial court properly 112based its ruling on Louisiana law. Accordingly, our review of this matter will be under the manifest error standard.

Our thorough review of the testimony and evidence presented at trial leads us to the conclusion that the trial court’s finding of fact, that Ms. Swanner did not know or should have known that the teens were drinking alcoholic beverages during the evening in question, is not manifestly erroneous. The evidence presented in this case shows that the teens took great pains to hide the alcohol and their consumption thereof from Ms. Swanner. Though a photograph taken that evening shows beer cans stacked on a table in the garage, the teens and Ms. Swanner specifically testified that Ms. Swanner did not see the cans. While Ms. Swanner did check on the teens several times during the evening, no conclusive testimony established the time that this photograph was taken.

The trial judge clearly found all of the testimony supporting Ms. Swanner’s position credible. The trial court’s factual findings and credibility determinations are entitled to great weight and will not be disturbed on appeal absent manifest error. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Tassin v. Crescent Paint And Varnish Co., 04-607 (La.App. 5 Cir. 11/30/04), 889 So.2d 1043, 1047, writ denied sub nom., Tassin v. Crescent Paint & Varnish Co., 04-3043 (La.2/18/05), 896 So.2d 39, citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

After an extensive review of Louisiana statutory law and jurisprudence, coupled with a survey of the state of the law on this issue in other states, and mindful of the trial court’s duty to ascertain and interpret the existing law, not to make new law, the trial court found no statutory or jurisprudential authority exists in Louisiana that establishes a duty for an adult to discover or prevent minors from | ^drinking in the absence of the adult’s actual or constructive knowledge of the alcohol consumption. We likewise have found no such statutory or jurisprudential authority in Louisiana. Accordingly, we cannot say that the trial court erred in finding the absence of a duty in this case.

Plaintiffs cite Doe v. Jeansonne, 97-795 (La.App. 3 Cir. 12/10/97), 704 So.2d 1240, to describe the general duty owed by an adult host of 16-year-old attendees of a party to observe risky behavior and take steps to control it. The Doe parents sued the hosts of the teenaged party, alleging that a breach of their duty to adequately supervise the teens resulted in their daughter having sexual intercourse with another party guest in a bathroom and becoming pregnant. The trial court granted summary judgment in favor of the defendants, which the Court of Appeal reversed, finding that reasonable minds could differ as to whether the adult defendants had provided reasonable supervision given their observation of the two young teens, earlier in the evening, “making out” on a bed upstairs and obvious to the adults’ presence, and also whether the girl herself had consented to the sexual encounter. In other words, given what the adults had seen, an issue of material fact remained as to whether their level of supervision (or the lack thereof) made foreseeable the risk that these young teens would later engage in sexual intercourse. Doe is clearly distinguishable from this case because in Doe, the adult chaperones witnessed the very behavior they were alleged to have had a duty to prevent. In this case, Ms. Swanner did not.

In this case, plaintiffs argue that Ms. Swanner’s knowledge of past drinking at her home, coupled with her knowledge of past drinking parties at other homes, should have made her aware that the teens consumed alcoholic beverages on this particular occasion, and that her corresponding supervision of the teens was inadequate. Under the particular facts of this case, we decline to find that Ms. | uSwanner’s supervision of the teens on that particular evening was inadequate. She was present at home the entire evening, the teens were aware of her presence, and she checked on them several times during the evening. Because they took great pains at concealing evidence of their alcohol consumption, Ms. Swanner did not see any evidence of such. She also spoke with Preston right before he left her home and did not detect any evidence of alcohol consumption. Though his BAC was shown to be .119 grams percent at the time of the accident, Ms. Swanner, Korra-pati, Manard, and Gieger all testified that Preston did not appear to be impaired that evening. Admittedly Korrapati and Ma-nard had also consumed alcohol that evening, which Dr. Liuzza testified could possibly have impaired their ability to assess another person’s impairment, but Ms. Swanner and Gieger however had not.

In conclusion, given the evidence presented in this case and its particular factual circumstances, we find no manifest error in the trial court’s finding of fact that Ms. Swanner had no actual or constructive knowledge of Preston’s alcohol consumption that evening. As a result of its “no” answer to that part of the duty-risk analysis, the trial court was compelled to find as it did that Ms. Swanner owed no duty under existing Louisiana law to detect and prevent Preston’s risky behavior. We are careful to state that the existence of no duty in this particular case does not hinge on the fact that Ms. Swanner did not purchase or otherwise furnish the alcohol consumed by the teens. The finding of no duty herein rests upon the factual conclusion in this case that Ms. Swanner had no actual or constructive knowledge that the teens were drinking, and that under the evidence presented in this case, such a conclusion by the trial judge was not manifestly erroneous.

SECOND ASSIGNMENT OF ERROR

Motion in limine

Plaintiffs also argue that the trial court committed legal error in its ruling on their motion in limine, which allowed the admittance of evidence of Preston drinking at other locations and times, and that fault could be assigned to Preston and his parents, Douglas Stead and Charlotte Brem-ermann.

A trial court has great discretion in its consideration of motions in limine, which provide litigants with a procedural vehicle to have evidentiary matters decided prior to trial. Shelton v. Hair, 06-233 (La.App. 3 Cir. 9/27/06), 939 So.2d 685, 689. In this case, the motions in limine were ruled upon pre-trial at a point in the case where a jury trial was contemplated. As such, the trial judge heard detailed arguments regarding the substance of the evidence sought to be admitted and excluded. The matter proceeded, however, as a bench trial.

A trial judge, unlike a jury, is well versed in the rules of evidence, and is, therefore, trained to give the appropriate weight to evidence and to evaluate evidence without bias. Additionally, because of training and experience, a trial judge is in a far better position than a jury to disregard, and not consider, evidence that has been improperly admitted at a trial. Raiford v. U.S. Indus. Ames Lawn & Garden Tools, 05-0815 (La.App. 4 Cir. 5/3/06), 929 So.2d 288, 291-92, writ denied, 06-1615 (La.10/13/06), 939 So.2d 366. Upon review, we find no errors in the trial court’s rulings on plaintiffs’ motion in li-mine, but more importantly, any such errors, if made, would in fact be harmless. The trial court’s analysis concentrated almost exclusively on the facts of Ms. Swan-ner’s actual or constructive knowledge of the teens’ drinking that particular evening and whether the law conferred a heightened legal duty on the social hosts of teenagers, and did not focus on Preston’s past drinking behavior.

lifiWe further note that plaintiffs relied upon Ms. Swanner’s past knowledge of underage drinking both at her home and other homes, a few of which incidents also included Preston, in order to argue for the existence of a heightened duty on her part. Plaintiffs’ position regarding the admission of this evidence, to allow its use to confer liability on Ms. Swanner, but to ask for its exclusion when it could be applied to confer fault upon plaintiffs, is inconsistent.

We further note that the trial judge did not assign any fault to Preston or plaintiffs. Accordingly, there is no erroneous result in the trial court’s ruling on plaintiffs’ motion in limine. '

FOURTH ASSIGNMENT OF ERROR

Survival and wrongful death damages

Plaintiffs also argue that the trial court erred in failing to award survival and wrongful death damages. Given that we have affirmed the trial court’s dismissal of the case against Ms. Swanner, we likewise find no merit to this assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

WICKER, J., concurs with reasons.

WICKER, J.,

concurs with reasons.

| ]I agree with both the outcome and majority’s analysis and write separately to emphasize that Louisiana law creates a duty upon the occupier of a premises to an invitee to exercise reasonable or ordinary care for an invitee’s safety commensurate with the particular circumstances involved. Doe v. Jeansonne, 97-795 (La.App. 3 Cir. 12/10/97), 704 So.2d 1240, 1245. In situations in which minors are under the control and supervision of a person who has agreed to be responsible for them, that person must use reasonable care commensurate with a reasonably forseeable risk of harm. Id. Furthermore, “[i]n situations where children are injured, the known characteristics and instincts of the children must be considered in determining whether the person has exercised reasonable care.” Id. at 1246, citing Freeman v. Wilcox, 303 So.2d 840, 842 (La.App. 1 Cir.1974), writ denied, 307 So.2d 630 (La.1975).

In this case, the trial judge heard testimony that Ms. Swanner had previously disciplined her child and had refused parties at her home after discovering that the group of minors had been drinking; that on this occasion, the minors took care to hide any evidence of consumption of |2aIcohoI; and that on this occasion, Ms. Swanner had remained at home all evening, checking on the minors in the garage apartment several times. Therefore, given the evidence presented at trial, the trial judge had a reasonable basis upon which to find that Ms. Swanner had no actual or constructive knowledge that the minors had been drinking at her home that evening. Furthermore, based upon the testimony and evidence presented at trial, the trial judge had a reasonable basis upon which to conclude that Ms. Swanner exercised reasonable care under the circumstances.

      . Preston was born on November 17, 1989, which made him 17 years old at the time of the accident.

      . According to the record, at the location in question, the eastbound lane Vintage Drive ends and the street continues with a relatively sharp turn to the right onto Power Boulevard.

      . Maryclaire's name is spelled various ways throughout the record.

      . The house, garage, and apartment were all under one roof line.

      . Ms. Swanner and her insurers will sometimes be referred to herein collectively as "defendant" or "defendants."

      . Stead v. Swanner, 10-371 (La.App. 5 Cir. 12/28/10), 52 So.3d 1149. The defendants applied for writs with the Louisiana Supreme Court, which were denied. Stead v. Swanner, 11-0335 (La.4/8/11), 61 So.3d 684.

      . Ms. Swanner also filed two other motions in limine, seeking rulings regarding evidence that have not been assigned as error in this appeal, and thus are not discussed herein.

      . In the Joint Pre-Trial Order filed on December 20, 2011, it was stipulated that no party had posted a jury bond, and therefore the right to a trial by jury had been waived by the parties.

      . Defendants filed an "answer” to the appeal, seeking the "preservation” of certain issues for appeal, but assigning no errors in the trial court's judgment and seeking no modification thereof. La. C.C.P. art. 2133 states that an appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. Because defendant’s "answer” seeks none of these things, we will not separately address the issues raised therein.

      . La. C.C. art. 2315(A) provides: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

      . La. C.C. art. 2316 provides: Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, and his want of skill.

      . The duty-risk analysis is also alternatively phrased as: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant owe a duty to the plaintiff? (3) Was the duty breached? and (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Roberts v. Benoit, 605 So.2d 1032, 1041 (La.1991). The trial court phrased its analysis this way in its Reasons for Judgment.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Derrick ALEXANDER.
    No. 12-KA-194.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Scott U. Schlegel, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Derrick Alexander.
    Derrick Alexander, Angola, Louisiana, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

| ^Defendant appeals his convictions of attempted forcible rape and indecent behavior with a juvenile. For the following reasons, we affirm.

Procedural History

On August 5, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Derrick Alexander, with forcible rape in violation of LSA-R.S. 14:42.1, to which he pled not guilty. Subsequently, on October 11, 2011, the district attorney filed an amended bill of information, charging defendant with the additional offense of indecent behavior with a juvenile in violation of LSA-R.S. 14:81. Defendant was arraigned on the amended bill and pled not guilty.

On November 8, 2011, after a two-day trial, the twelve-person jury found defendant guilty of the responsive verdict of attempted forcible rape and guilty as charged of indecent behavior with a juvenile. On December 2, 2011, after the trial court denied defendant’s motions for new trial and post-verdict judgment of acquittal, defendant waived sentencing delays and was sentenced, on the attempted forcible rape, to twenty years imprisonment at hard labor, and on the indecent ^behavior with a juvenile, to seven years imprisonment at hard labor.

Also on that day, after sentence had been imposed, the State filed a multiple offender bill of information on each count, alleging defendant to be a third felony offender. After adjudicating defendant a third felony offender, the trial court vacated defendant’s sentences on both counts and imposed concurrent enhanced sentences of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Thereafter, the trial court denied defendant’s motion to reconsider sentence and granted his motion for appeal.

Facts

At approximately 7:15 p.m. on April 25, 2009,13-year-old D.M., the victim, visited the house of M.D. to have M.D. braid her hair. M.D., the wife of defendant, is the cousin of D.M.’s “father,” T.C. At the time, M.D. resided at 4280 East Ames Boulevard in Jefferson Parish with her three children, of whom the oldest was ten years of age. Although defendant did not reside at this residence, there was testimony that he had a key.

When D.M. arrived, M.D. was there, along with her three children. M.D. started to braid D.M.’s hair, but stopped midway when she prepared to leave the house. Before leaving, M.D. called T.C. to ask if D.M. could spend the night, to which T.C. agreed. The testimony indicates that M.D. left the house sometime between 10:00 and 11:30 p.m., leaving D.M. alone with her children. Defendant arrived at the house approximately one hour after M.D. left.

When defendant arrived, D.M. exited the room where she had been watching television, and when she returned, noticed that defendant had a “nasty” Rmovie on. Defendant asked D.M. if she watched “nasty” movies; she told him “no.” Defendant asked if she had a boyfriend and if he could be her “sideline boyfriend.” D.M. left to go to the children’s room, but soon returned to watch more television, where defendant had evidently stopped watching the “nasty” movie. While D.M. watched television, defendant began “touching” her. D.M. left the room, at which point, defendant left the house to go to McDonald’s. It appears that at some point after defendant returned with food for the children— the chronology of events is not clear— defendant resumed his physical advances towards D.M.: rubbing her, touching her genitals with his hands, and kissing her neck and breasts. D.M. tried to push defendant away and told him to stop, but he did not. He then pulled off her pants and underwear, removed his pants and underwear, rolled on top of her, and put his “private part,” which D.M. indicated is his penis, into her “private part,” which she indicated is her vagina. D.M. then retreated into the bathroom to wipe herself off. Following these events, defendant gave D.M. $100.00 and wrote his phone number down for her. D.M. threw the number in the garbage.

D.D., defendant’s eldest child, testified to a different version of events. D.D. stated that when M.D. left the house that night, D.D., her two younger sisters, and D.M. were watching a movie in her bedroom. D.D. only saw defendant one time that night: when he brought them McDonald’s. After eating, they all fell asleep in the same bed; D.D. never saw D.M. leave the room and never heard a struggle in another room. The next morning, when D.D. spoke with D.M., she did not indicate anything had happened the night before.

M.D. arrived back home between 3:45 and 4:00 a.m. on April 26, 2009. As she arrived, she noticed that defendant was asleep in his truck and she did not know where he had been between 7:00 p.m. and 3:45 a.m. that night.

At some point over the next two days, D.M. told T.C. that defendant had 15“raped” her. T.C. took D.M. to M.D.’s house, where D.M. told M.D. what had happened. Thereafter, M.D. called the police, which she explained at trial she only did because T.C. was threatening to harm defendant with “sticks.”

In the early evening of April 27, 2009, Deputy Mark Monson of the Jefferson Parish Sheriffs Office responded to the call. When he arrived, the deputy encountered D.M., T.C., and M.D. standing outside. T.C. appeared angry and teary-eyed, while D.M. seemed timid and nervous with shaky hands. Deputy Monson separated T.C. and D.M. and obtained an account of the events from each. T.C. told the deputy that defendant had raped D.M.; and D.M. gave the deputy a near-verbatim account of what T.C. had said. The deputy found the level of detail in D.M.’s story to be noteworthy. He especially found it significant that D.M. was able to recite defendant’s phone number.

Deputy Monson then spoke with M.D., who “told him all the same stuff,” including that defendant was asleep in bed when she got home that night. M.D. also gave the deputy defendant’s phone number, which he confirmed was the same as D.M. had specified. However, at trial, M.D. denied talking to Deputy Monson that day, denied giving him defendant’s phone number, and claimed defendant was asleep in his truck, not his bed, when she got home that night.

After speaking with these three individuals, Deputy Monson contacted Detective Terri Dana in the personal violence section of the Jefferson Parish Sheriffs Office. Detective Dana, along with Detective Nick Vega, responded to the scene. Upon the detectives’ arrival, D.M. and T.C. were not there as they had gone to Children’s Hospital for a sexual assault exam. Detective Dana spoke with Deputy Monson, who relayed all the information he had gathered. The detective then spoke with M.D., who consented to have her house photographed and scanned with a light used to detect bodily fluids. The scan did not detect any bodily fluids. The detectives then proceeded to defendant’s residence, where they encountered |fihis mother, Lillian Alexander, who informed them that defendant was not home at the time.

Meanwhile, Dr. Eva Blanche Centanni of Children’s Hospital conducted a sexual assault exam of D.M., in which D.M. described the details of the incident. The doctor did not find any physical trauma to D.M.’s body or vagina, which she explained is not uncommon in sexual abuse cases, the majority of which lack clear medical evidence. During the vaginal exam, Dr. Centanni discovered a discharge which possessed the characteristics of semen, however, subsequent tests revealed semen was not present.

In addition, D.M.’s lab tests came back positive for syphilis; however, Dr. Stephanie Taylor, an expert in the field of sexually transmitted diseases, testified that the latency period was not long enough for D.M. to develop syphilis from this incident. Indeed, D.M.’s medical records confirmed that she was born with congenital syphilis and tests indicated that defendant was not infected with the disease.

Dr. Jamie Jackson of the Audrey Hepburn Care Center at Children’s Hospital and an expert in child abuse pediatrics reviewed photographs that had been taken during D.M.’s vaginal exam. Dr. Jackson found D.M.’s hymen to be normal, which was corroborated by a peer review of other physicians. Dr. Jackson also did not find any evidence of physical trauma, which he explained is not uncommon in cases of sexual assault.

In May of 2009, Detective Dana obtained an arrest warrant for defendant, who was subsequently taken into custody by U.S. Marshals. After defendant’s arrest, Detective Kelly Jones of the Jefferson Parish Sheriffs Office met with defendant at the detective bureau on June 9, 2009, where he advised him of his rights. Defendant cannot read or write, so Detective Jones read the advice of rights form to defendant, who signed his name, indicating he understood his rights. |7When the waiver of rights portion was read to him, defendant said he had nothing to say but then denied knowing the victim, being at the house that night, and raping anyone.

On August 6, 2009, Staci Lanza, a juvenile forensic interviewer with the Gretna Police Department, conducted a recorded interview with D.M. in which D.M. described the incident as she did to Deputy Monson, Dr. Centanni, and subsequently at trial.

Amanda Calogero, a child abuse screen-er with the Jefferson Parish District Attorney’s Office, also met with D.M. Ms. Ca-logero testified about details D.M. omitted from her other accounts of the incident. D.M. told Ms. Calogero that at one point during the incident she tried to call out, but that defendant stuck something sticky over her mouth and at another point, defendant forced her into the bathtub. Ms. Calogero explained that it is not uncommon for a child victim of sexual abuse to disclose more details as time passes.

Adriana Perez, an expert in the field of forensic DNA analysis, conducted tests on D.M.’s underwear. Of three samples taken from the victim’s underwear, one indicated the presence of male DNA, but the quantity and quality of the genetic material was insufficient to generate a profile for comparison purposes. Also present on this sample were secretions from the male prostate gland, but spermatozoa were not observed. Another sample indicated the presence of a mixture of genetic material from at least two individuals, of which D.M. could not be excluded as a donor, but defendant was.

Joseph Trawicki, a records custodian for Sprint Nextel, testified regarding incoming and outgoing calls on defendant’s cell phone beginning at 10:09 p.m. on April 25 and ending at 4:22 a.m. on April 26, 2009. Mr. Trawicki was able to approximate the location of defendant’s cell phone throughout the night. He opined that the phone was moving, and that the movement indicated a back-and-Jforth8 pattern, as if the cell phone user was leaving and returning to a location.

Lillian Alexander, defendant’s mother, testified that defendant was working on her Katrina-damaged house on April 25 and 26, 2009. She explained that defendant left for M.D.’s house at one point that night to bring the children McDonald’s and that after returning, he later left her house around 2:30 or 3:00 a.m. on April 26. She further described that she learned of the allegations against her son when he told her about it in tears. Defendant told his mother he would never do anything like that.

Law and Argument

On appeal, defendant raises two counseled assignments of error and one supplemental pro se assignment of error. In his counseled assignments, defendant argues that the evidence was insufficient to support his convictions and that the trial court erred in reading a flight instruction to the jury. In his pro se assignment, he argues that the trial court erred in denying his motion for new trial on the grounds that: (1) defendant’s right to a fair trial was violated when the State introduced perjured evidence, (2) the trial court erred in instructing the jury on flight, and (3) the evidence was insufficient to support his convictions.

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Thus, we will first address those assignments of error which relate to the sufficiency of the evidence.

As a preliminary matter, although this Court has recognized that the denial of a motion for new trial based on insufficient evidence is not subject to review on appeal, both the Louisiana Supreme Court and this Court have nonetheless addressed such claims under these circumstances. See State v. Bazley, 09-358, pp. 17-18 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039 (citation omitted). Accordingly, we consider defendant’s argument that the trial court erred in denying his motion for new trial on the ground that the evidence was insufficient to support the verdict.

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, p. 9 (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, p. 4 (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, p. 6 (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., 08-20 at 7, 985 So.2d at 240.

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is | ^sufficient to support a conviction. State v. Dixon, 07-915, p. 11 (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. Specifically in sex offense cases, 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., 07-915 at 11, 982 So.2d at 153-54.

With respect to defendant’s attempted forcible rape conviction, he was charged with forcible rape, but found guilty of the responsive verdict of attempted forcible rape in violation of LSA-R.S. 14:27:42.1. When a defendant does not object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); State v. Austin, 04-993, p. 13 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 878, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143. In the present case, defendant did not lodge an objection to the responsive verdicts, which included attempted forcible rape. Accordingly, defendant is entitled to a reversal of his conviction only if the evidence is insufficient to support a conviction of the charged offense, forcible rape.

At the time of the offenses, LSA-R.S. 14:42.1(A)(1) defined forcible rape in pertinent part as:

[R]ape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ... [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

InLSA-R.S. 14:81 defined indecent behavior with juveniles in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) 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.

On appeal, defendant argues that D.M.’s inconsistent statements and the absence of physical evidence rendered the evidence insufficient to find him guilty beyond a reasonable doubt of attempted forcible rape and indecent behavior with a juvenile. At trial, the State presented the testimony of the victim and several others to prove that defendant was guilty of these offenses. In sum, D.M. testified that on April 25, 2009, she encountered defendant while at M.D.’s house. At some point that night, defendant made sexual advances towards D.M., touching her and kissing her neck and breasts. These advances culminated when, against D.M.’s protests, defendant pulled off D.M.’s pants, rolled on top of her, and put his “private part” into her “private part.” This incident was reported to the police two days later. Deputy Monson of the Jefferson Parish Sheriffs Office, Dr. Centanni of Children’s Hospital, and Ms. Lanza of the Gretna Police Department each testified that D.M. reported these events to them.

Defendant maintains that D.M.’s version of events differed every time she told her story. First, defendant contends that despite D.M.’s testimony that he wrote down his phone number for her and that she threw it in the trash, defendant maintains he cannot read and write. He further notes that the police searched the trash and never found this paper with the phone number. Second, defendant points out that although D.M. said defendant gave her $100.00 after the incident, no money was ever found or turned over to the police. Third, defendant notes that D.M. stated defendant brought the McDonald’s before the rape, yet she also said defendant brought the food after the incident. Fourth, defendant asserts that in |12some versions D.M. said she took a bath, but in other versions, she told doctors she had not bathed since the incident and was wearing the same underwear and clothes. Fifth, defendant notes that in some versions, D.M. said defendant followed her into the bathroom and tried to force her to take a bath, but in other versions, D.M. said she just wiped herself off afterwards. Lastly, defendant contends that there were discrepancies concerning the number of children in the house that night.

With respect to the phone number, despite the inconsistent testimony regarding whether it was written down and whether D.M. threw it in the trash, Deputy Monson was able to confirm that the number D.M. gave to him was in fact defendant’s phone number. On account of this, a reasonable jury could find that defendant gave his phone number to D.M.

As to the McDonald’s food, although it is not clear as to precisely when defendant brought it home, there was testimony from several witnesses that defendant brought McDonald’s to the house that night. This testimony placed defendant in the home with the victim on the night in question.

The various other inconsistencies among D.M.’s statements, which concern matters tangential to the act of rape or sexual contact, a reasonable jury could find were due to the victim’s young age and the traumatic experience she had endured. Indeed, as Ms. Calogero testified, it is not uncommon for a child victim of sexual abuse to disclose more details as time passes. Nevertheless, while D.M. may have been inconsistent in some details surrounding that night and the incident, her descriptions of the pertinent events— namely, the inappropriate touching and penile-vaginal penetration — were consistent. Further, a review of the transcript reflects that defense counsel cross-examined D.M. regarding many of the alleged inconsistencies and, therefore, the jury was able to consider them when evaluating the credibility of witnesses.

11sAlthough physical evidence was lacking in this case, the testimony of the victim alone is sufficient to support a conviction. Dixon, supra. After hearing testimony from all the witnesses, including the victim, and considering all the evidence, the jury evidently believed D.M.’s version of events and rejected defendant’s, finding him guilty of attempted forcible rape and indecent behavior with a juvenile. Based on the record before us, we see no reason to disturb the jury’s findings.

Therefore, viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact would have found defendant guilty of forcible rape and indecent behavior with a juvenile. Accordingly, we also find that the trial court did not abuse its discretion in denying defendant’s motion for new trial on the ground that the evidence was insufficient to support the verdict. These arguments are without merit.

In defendant’s second counseled assignment of error, he argues that the trial court erred in instructing the jury on flight; and in his pro se assignment of error, he argues that the trial court erred in denying his motion for new trial on the ground that the flight instruction was not warranted.

Defendant contends that it was erroneous to instruct the jury on flight because there was no evidence of flight. The State, in support of its request for the flight instruction, argued that defendant’s failure to meet with police after he had learned of their attempts to contact him constituted flight. Defendant responded that his failure to meet with the police was not because he fled, but because he was advised not to by counsel. Namely, at the time defendant was a suspect in this case, he was also under investigation on federal drug charges. Defendant claimed that counsel who was representing him in that investigation advised him not to [14speak with the police.

The evidence established that after defendant failed to respond to the police’s repeated attempts to contact him, a warrant for his arrest was obtained on May 13, 2009, and he was arrested on June 9, 2009. Defendant’s wife testified that during the month-and-a-half between the incident and defendant’s arrest, she and defendant talked about the rape allegations nearly every day and she encouraged him to meet with the police. However, he never did so.

Based on this, the trial court found an instruction on flight was warranted, and instructed the jury as follows:

If you find that the defendant fled immediately after a crime was committed or after he was accused of a crime, the flight alone is not sufficient to prove that the defendant is guilty. However, flight may be considered along with all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.

After the jury returned its verdict, defendant filed motions for new trial and post-verdict judgment of acquittal, though copies of these motions are not included in the record. Nevertheless, at the hearing on these motions, defense counsel re-urged the argument that the flight instruction was improper because there was no evidence of flight. The defense called Martin Regan to the stand, who testified that he was representing defendant in April of 2009 regarding a “federal matter” when he learned on May 15, 2009 that there was an arrest warrant for defendant in this case. Mr. Regan agreed to represent defendant in both cases, and advised him not to speak with the police without the presence of counsel.

Mr. Regan further testified that if his clients have a warrant outstanding for their arrest, it is his general practice to advise them that they have a duty to turn themselves in, and that they should do so as soon as possible, with his assistance. Although Mr. Regan became aware of the warrant for defendant’s arrest in this case on May 15, 2009, defendant did not turn himself in and was arrested nearly a |lsmonth later on June 9, 2009.

LSA-C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. State v. Cornejo-Garcia, 11-619, p. 6 (La.App. 5 Cir. 1/24/12), 90 So.3d 458, 462. This Court has held that if there is testimony of flight after the crime was committed and the jury charge regarding flight is brief when considered in connection with the remainder of the charges, the instruction is neither erroneous nor prejudicial. State v. Smith, 03-786, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 811, 820, writs denied, 04-0380 (La.6/25/04), 876 So.2d 830 and 04-0419 (La.6/25/04), 876 So.2d 830.

For instance, in State v. Emerson, 31,-408, pp. 8-9 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, 378, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470, the second circuit found the jury instruction on flight was proper despite the defendant’s argument that there was no evidence of flight. The evidence adduced at trial indicated that the police investigated the offense shortly after its occurrence and developed the defendant as a suspect. Id., 31,408 at 8, 722 So.2d at 378. The defendant was not present when the police arrived on the scene, police units had not chased him, and attempts to find him were unsuccessful after an arrest warrant had been obtained. Id. The defendant was eventually apprehended seven months later in another state. Id. The second circuit found that the instruction on flight was proper under these circumstances, noting there is no requirement that a subject’s departure from the scene of an offense coincide with police pursuit in order to constitute flight. Id., 31,408 at 8-9, 722 So.2d at 378.

In the instant case, we find that the trial judge did not err in giving the flight instruction. Defendant’s wife testified that defendant knew he was wanted in connection with the rape and that she encouraged him to speak with the police. Defendant’s former counsel, Mr. Regan, also testified that he generally advises his clients to turn themselves in when a warrant is issued for their arrest. Despite | ^defendant’s knowledge of the allegations against him and the encouragement from his wife and counsel to turn himself in, defendant refused to do so. This refusal indicated an intent to conceal himself from authorities and to avoid apprehension. Additionally, we note that the flight instruction was brief: it was three sentences amongst fifteen pages of jury instructions.

In consideration of the foregoing, we find the trial court did not err by instructing the jury on flight. Accordingly, we also find that the trial court did not abuse its discretion in denying defendant’s motion for new trial on this ground. These arguments are without merit.

Nevertheless, even if it was an error to include this flight instruction, such error is subject to a harmless error review. Smith, 03-786 at 11, 864 So.2d at 820. An error is harmless if the guilty verdict actually rendered in the instant trial was surely unattributable to the error. Id. In light of the victim’s positive identification of defendant as the perpetrator, as well as the supporting testimony from several other witnesses, we find that even if the trial court erred by giving the flight instruction, such error was harmless.

Lastly, defendant also argues in his pro se assignment that the trial court erred in denying his motion for new trial on the ground that his right to a fair trial was violated when the State presented perjured evidence in support of the flight instruction. Defendant contends that the State’s allegation that he fled was false, and, therefore, amounted to perjury.

We first note that the record discloses no contemporaneous objection to this alleged prosecutorial misconduct. The contemporaneous objection rule provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. State v. Carter, 10-973, p. 10 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 6, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469. This rule applies to claims of prosecutorial misconduct. Id. Accordingly, defendant has | t7waived any error based on this claim by his failure to lodge a contemporaneous objection.

In any event, the State’s allegation that defendant fled was made during argument pursuant to a request for a jury instruction on flight. Thus, there was no basis to claim prosecutorial misconduct when the allegation was simply an argument that defendant did not contact police because he sought to avoid apprehension. As such, if this issue were before us, we would find that the trial court did not abuse its discretion in denying defendant’s motion for new trial on this ground. This argument is without merit.

Errors Patent

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920, and have found none requiring corrective action.

Decree

For the foregoing reasons, defendant’s convictions are affirmed.

AFFIRMED

      . LSA-R.S. 15:529.1 does not prohibit enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. State v. Shaw, 06-2467, p. 20 (La. 11/27/07), 969 So.2d 1233, 1245.

      . The victim’s initials, as well as the initials of the victim's family members, are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the Court to identify a crime victim who is a minor, or a victim of a sex offense, by using his or her initials. The bill of information indicates D.M.’s date of birth is December 15, 1995.

      . The bill of information indicates defendant's date of birth is December 22, 1978. Thus, at the time of the offenses, defendant was thirty years old.

      . It is noted that although D.M. refers to T.C. as her “father," in fact, he is neither her father nor her stepfather. At the time of the offenses, T.C. was living with D.M.'s mother, with whom he had one child.

      . 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, p. 4 (La.6/21/02), 820 So.2d 518, 520.

      . The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. Bazley, 09-358 at 17, 60 So.3d at 19.