author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Travis F. HENDERSON.
    No. 2013-KA-0526.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Donna An-drieu, Assistant District Attorneys, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

11Travis Henderson (“Henderson”) seeks review of his convictions and sentences for (1) armed robbery, a violation of La. R.S. 14:64, for which he received a sentence of seventy years at hard labor without the benefit of parole, probation, or suspension of sentence; and (2) contributing to the delinquency of a juvenile, a violation of La. R.S. 14:92 E(l), for which he was sentenced to five years to run concurrently with his seventy-year sentence. Henderson was multiple billed (pursuant to La. R.S. 15:529.1) as to the armed robbery conviction, found guilty, and sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence.

For the reasons that follow, we remand for further proceedings as discussed infra.

I.

The state filed a bill of information on 21 March 2012 charging Henderson with one count of armed robbery with a firearm, one count of illegal possession of stolen things, and one count of contributing to the delinquency of a juvenile. On |g26 March 2012, Henderson entered pleas of not guilty to all counts, and a motions hearing was set for 20 April 2012.

Thereafter, numerous pretrial conferences and motion hearings were held, one of which resulted in the severing of the count for illegal possession of stolen property. Subsequently, Henderson pleaded guilty to that charge.

A jury found Henderson guilty of armed robbery and of contributing to delinquency of a juvenile at the 7-8 January 2013 trial. Henderson was sentenced on 25 January 2013 as noted above. The state multiple billed Henderson as a fourth felony offender as to the armed robbery conviction, and the trial court, finding him to be a multiple offender, subsequently imposed a life sentence without benefits. This timely appeal followed.

II.

At a motion hearing on 8 June 2012, and at the jury trial on 8 January 2013, Detective Travis Ward testified that he was employed at the Eighth District of the New Orleans Police Department (“NOPD”) in the Violent Crimes Unit when he was called to investigate an armed robbery on 2 January 2012. He explained that the victim was walking in the 1000 block of Ursulines Street in New Orleans, while talking on her cell phone, when she was approached by a young male. According to Detective Ward, the young male began to question the victim as to what she was doing, et cetera. The victim motioned for the young man to leave her alone. At that time, a white van pulled up, and the driver got out. The driver told the young male something to the effect of showing him how to do it; the driver took a gun from the young male and robbed the victim of her bag and cell phone. IsThe victim watched as the two suspects got into the white van, sat for a short moment, and then drove away. During trial, the detective identified Henderson in the courtroom as the suspect who had exited the white van and took the victim’s belongings. Detective Ward also testified that he viewed a bad quality video surveillance film of the crime. He stated that he learned from the victim that her cell phone was used after it was stolen. The victim was able to obtain the number that was called from her phone, and she provided him with that information. He also testified that he called the phone number provided by the victim and linked the call to the home of a Ms. Karen Elzey in New Orleans. Detective Ward testified that he and Detective Willie Jenkins went to the home of Ms. Elzey and, with Ms. Elzey’s permission, questioned her daughter, Alicia Elzey, who explained that the phone number called from the victim’s stolen cell phone was her phone number and that she remembered receiving a call from J.W., a minor who at the time of trial was held in a juvenile detention program, and who she knew attended Marrero Middle School.

Detective Ward testified that he searched the database for J.W. and located him at Marrero Middle School. He and Detective Michael Flores went to the school and retrieved six photographs of students, one being of J.W. He stated that an identification of J.W. was made by the victim after he showed her the six photographs. Thereafter, Detective Ward went to the home of J.W., where J.W. admitted to the events and told the detective that an air pistol, not a real (gunpowder) gun, was used during the crime. J.W. also stated that he was accompanied by Travis Henderson at the time of the crime. After investigating the | ¿matter further, Detective Ward learned that Henderson had been recently arrested in the French Quarter for a simple robbery. He obtained a photograph of Henderson and returned to J.W., who identified Henderson as “the person who was teaching him to rob people.”

At the jury trial on 7 January 2013, Detective Troy Williams testified that he was a sergeant with the NOPD for approximately nineteen years. He stated that in July of 1999, while a detective in the Eight District, he was called to investigate an armed robbery at the intersection of Burgundy Street and Ursulines Avenue. He testified that two females were robbed at gunpoint. A few days later a suspect, fitting the description of the armed robber in this case, was stopped in close proximity to where the crime occurred. Detective Williams explained that after the female victims identified Henderson in a photographic lineup, Henderson was convicted for that 1999 robbery.

Miranda Culp of Perm Valley, California, testified that she lived in New Orleans in 1999 and worked as a cocktail waitress in the French Quarter when she was robbed at gunpoint at the intersection of Burgundy Street and Ursulines Avenue by Henderson.

Sergeant Nicholas Gernon testified that he was assigned to the Eighth District of the NOPD in the Crimes Unit at the time of the subject crime. He stated that he searched for surveillance video of the 1000 block of Ursulines Street and was able to obtain video from a residence located in the 900 block of Ursulines Street and from the WWL television station at the corner of North Rampart Street and Ursulines Avenue. (The WWL video was played for the jury).

J.W. testified that he was sixteen years old, stationed at Camp Beauregard in Pineville, Louisiana, for the Youth Challenge Program, a Louisiana program aimed 15to assist at-risk kids, and working on obtaining his GED. He stated that on 2 January 2012 he was in eighth grade at Marrero Middle School and was friends with Henderson. He identified Henderson sitting in the courtroom. J.W. testified that on 2 January 2012, after he walked to his friend Trey’s house and learned that Trey was not home, he ran into Henderson, who gave him a ride home in a blue Chevrolet Impala automobile. J.W. stated that he later returned to Trey’s house, but Trey was still not home. J.W., seeing Henderson again, accepted a ride with Henderson, who was now driving a white van. He stated that he and Trey enjoyed playing with BB guns and that Henderson knew that J.W. had a BB gun that he purchased from Wal-Mart.

J.W. testified that he and Henderson ate at Henderson’s mother’s house, and thereafter proceeded to the French Quarter in the white van. He stated that he was instructed by Henderson to rob a group of people on Canal Street, but did not do so. He said that Henderson circled the block and instructed him to “get out, get her,” meaning an African-American female who was walking down the street talking on a cell phone with a purse across her body. J.W. approached the victim and asked her some questions that he could not then recall. Henderson then jumped from the van with J.W.’s BB gun and yelled at J.W. for not knowing what to do. J.W. headed back to the van, and Henderson soon approached and asked J.W., who was then sitting in the driver’s seat, if he knew how to drive. Henderson then crossed over J.W. and drove away.

J.W. stated that Henderson took a cell phone, a computer, and some paperwork from the victim. He also testified that when Henderson returned to the van he saw the handgun. J.W. used the stolen cell phone to call his girlfriend, Alicia El-zey, to ask her for gas money. He stated that Henderson attempted to |fipawn and sell the computer. J.W. testified that he saw the video of the armed robbery, and he could see himself and Henderson therein. He corroborated Detective Ward’s testimony that he picked Henderson out of a photographic line-up when the police came to his house.

Margaret Padaya testified that on 2 January 2012 she worked as a special education teacher in the French Quarter at KIPP NOLA Leadership Primary, a school. She testified that she was walking to her home on Ursulines Street while talking to her co-worker on her cell phone. She explained that at first she ignored the young male who approached her until she realized that something was not right about the situation. At that time, she put her hands up and said “back up.” She stated that the young man backed away from her as an older man got out of a white truck, and she observed a gun being exchanged between the two men. She said the older man stated “let me show you how this is done,” whereupon he took a bag out of her hand and drove past her. Ms. Padaya identified herself in the video played at trial.

III.

ERRORS PATENT

The record reveals no errors patent.

IV.

A.

DISCUSSION

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), is well-settled law that both Henderson and the state rely upon in this appeal. In Davis, juvenile Richard Green was on an errand for his mother when he saw two African-American men on the side of the road close to his house. The men were standing next to a Chevrolet 17vehicle. The first time Green passed the men he had a limited conversation with them, and the second time he passed them on his return home, he saw that one of the men had a crowbar. Later it was learned that a safe was stolen from a barroom in Anchorage, Alaska, and that the empty safe was found near Green’s home. The Alaskan State Troopers went to Green’s home, questioned him, and Green subsequently identified the two men he saw on the side of the road. Once the Chevrolet was found and paint shavings from the safe were identified in the vehicle, the troopers were able to make arrests.

Because Green had a juvenile criminal record, the prosecutors moved for a protective order to prevent the cross-examination of Green. According to the prosecutors, they did not want the jury to question the credibility of Green’s testimony by assuming Green was hasty in identifying the suspects because of his past criminal history of burglary. The trial court granted the order, and the defendant appealed. The Supreme Court first looked at the Sixth Amendment:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor Wigmore stated:
‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal | sputting of questions and obtaining immediate answers.’ [citation omitted].

Davis, 415 U.S. at 315-16, 94 S.Ct. 1105.

The Court in Davis reversed and remanded the matter, reasoning:

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527 (1967). Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.

Davis, 415 U.S. at 319, 94 S.Ct. 1105.

B.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Henderson argues that the trial court erred in not allowing the discovery of J.W.’s criminal record to be used as impeachment evidence. Specifically, Henderson maintains that he was denied the right to confront J.W. about his juvenile adjudication and the fact that he was granted probation only after becoming the state’s witness. He argues that at trial he objected in light of Davis v. Alaska when the trial court agreed with the state in concluding that juvenile convictions would not be allowed.

| pFirst, Henderson argues that his Sixth Amendment right was secured by the early case of Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), where the Court reversed and remanded Pointer’s case and concluded that his Sixth Amendment right was violated when he was unable to confront and cross-examine the witness who testified against him. (Pointer was accused and convicted of robbery.)

Further, in relying on La. C.E. art. 609.1, Henderson maintains that he should have been allowed to discredit J.W. by introducing evidence of J.W.’s prior crimes and adjudication so that the jury could form an opinion about J.W.’s character. He concedes that La. C.E. art. 609.1 does not generally permit the introduction of evidence of juvenile adjudications; however, he cites State v. Toledano, 391 So.2d 817, 820 (La.1980), to show that a precedent was set that allows the discovery of juvenile records and maintains that the instant case falls within the ambit of what the court in Toledano concluded:

The extreme importance and constitutional status of the right to confrontation (which includes the reasonable opportunity to impeach the witness’ credibility) requires that any statutory right to confidentiality of juvenile proceedings under these circumstances must yield if the discrediting value of a prior juvenile adjudication is such that its disclosure is essential to a fair trial

Id. at 820.

Further, relying on State v. Hillard, 398 So.2d 1057 (La.1981), wherein the defendant, Kerwin Hillard, was sentenced to life imprisonment for first degree murder and the Supreme Court reversed and remanded the case, concluding that that Hillard’s Sixth Amendment rights may have been violated because the trial court did not allow Hillard to question Robert Johnson, a witness against him, about his juvenile record during cross-examination.

ImLastly, Henderson contends that it was midway through trial that he learned that J.W. was only subjected to probation for agreeing to testify against him, which triggered Henderson’s reliance on La. C.E. art. 607, because Henderson maintains that he could have introduced extrinsic evidence that J.W. was biased or had an interest in testifying.

The state begins by countering Henderson’s argument by also citing Davis v. Alaska and discussing the case in detail. In first distinguishing the case, the state maintains that the defendant Davis attempted to question the witness Green about his probationary status; the Alaskan court sustained the state’s objection because state law made those records confidential. In the instant case, the state argues that Louisiana law also makes such juvenile records confidential, but that the Court in Davis made it clear that exposing the record of a juvenile should be applied on a case by case basis.

Next, the state agrees with Henderson in that the record fails to show that the trial court reviewed and considered J.W.’s juvenile record as required by State v. Perkins, 03-1680, pp. 1-2 (La.6/27/08), 852 So.2d 989, 990, wherein the Court stated:

“The critical question in cases involving a witness’s juvenile record and the sixth amendment right to confrontation is whether the defendant will be precluded from utilizing a method of impeachment that would be effective in the circumstances of his case were the juvenile record available to defendant.” State v. Smith, 437 So.2d 802, 804 (La.1983). In reviewing juvenile records, the issue thus becomes whether the _|nwitness’s juvenile adjudications have such discrediting value that there is a reasonable likelihood it would affect the verdict. State v. Toledano, supra, 391 So.2d at 820. That determination can only be made after an examination of the juvenile record by the trial court and preservation of that record for review. State v. Hillard, 398 So.2d 1057, 1060 (La.1981).

On appeal, Henderson seeks a new trial; however, the state disagrees and argues that the matter should be remanded in light of State v. Toledano and State v. Hillard.

In Toledano, the Court concluded on rehearing that the “matter must be remanded for submission of Reginald Yawls’ record of juvenile adjudications. If the trial court finds, under the principles discussed above, that the circumstances require a new trial, judgment should be entered accordingly. On the other hand, if the trial court decides that the conviction should stand, then the defendant may seek review by this court of that ruling.” Id. at 821.

Further, in Hillard, the Court remanded the case for the trial court to determine “whether the defendant will be prevented from employing a means of impeachment that would be effective in his particular case if the juvenile record cannot be referred to.” Id. at 1060-61.

On 7 January 2013, Henderson actively sought to discover J.W.’s criminal history. The trial court flatly denied Henderson’s discovery motion. Now, both the state and Henderson agree that the trial court failed to review J.W.’s record of conviction and arrests which is inconsistent with Davis.

COUNSEL FOR HENDERSON:

The motion for discovery pursuant to Brady and its progeny, Judge, we had asked the Court months ago to have the state turn over criminal conviction histories of all the potential state witnesses. Specifically, the juvenile witness, [J.W.], but not to exclude any other witnesses.
|12If the Court would like to review the rap sheet in camera. I understand from Mr. Poche he said that the rap sheet is clean, I think those are his words, that there was nothing there. However, we know that Mr. [J.W.] is on probation at this point and so the state should disclose what he is on probation for.

THE STATE:

In response to that, Judge, juvenile convictions do not come in and they can’t even mention that he’s on probation when he is on the stand because that is contrary to what impeachment allows for.

THE COURT:

The Court agrees with the State, I’m not letting juvenile convictions in.

Confrontation errors are subject to the harmless error analysis. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817; State v. Truvia, 09-0504, p. 14 (La.App. 4 Cir. 1/13/10), 29 So.3d 669, 678. In Broadway, the Court set forth the harmless error analysis for confrontation errors, stating:

The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684,106 S.Ct. 1431. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 684, 106 S.Ct. 1431; State v. Wille, 559 So.2d [1321] at 1332 [La.1990]. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

Id. at p. 24, 753 So.2d at 817.

In State v. Rubens, 10-1114 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, the defendant, Peter Rubens, was convicted of the second degree murder of his acquaintance, Robert Irwin. After having a disagreement about money, Ruben’s | ^girlfriend, and work, Rubens shot and killed Irwin. On appeal, Rubens sought review, inter alia, of the trial court’s denial of the admission of a juvenile witness’ “rap” sheet. Although this court found the assignment to be without merit because Ruben could not point to specific evidence in the record for appellate review, we found, citing Toledano and Davis:

“[T]he extreme importance and constitutional status of the right to confrontation (which includes the reasonable opportunity to impeach the witness’s credibility) requires that any statutory right to confidentiality of juvenile proceedings under these circumstances must yield if the discrediting value of a prior juvenile adjudication is such that its disclosure is essential to a fair trial.” State v. Toledano, 391 So.2d 817, 820 (La.1980), on rehearing. This standard entails a balancing test to determine whether the impeachment value of the adjudication is outweighed by the State’s interest in maintaining the confidentiality of juvenile records. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974); State v. Smith, 437 So.2d 802, 804 (La.1983).

Rubens, pp. 38-39, 83 So.3d at 55-56

We are not presently in a position to determine whether failing to allow Henderson to cross-examine J.W. in regard to his criminal record was harmless error or not. The record is devoid of J.W.’s criminal history, and the trial court failed to examine J.W.’s record prior to denying its admissibility. That Henderson learned that J.W. may have been afforded probation for testifying against him also raises a concern as this might be significant impeachment evidence. We find that, in light of Toledano and Hillard, remand of the instant case is consistent with current law and jurisprudence.

ImC-

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, Henderson argues that he was deprived of his constitutional right of judicial review because the multiple offender exhibits were not lodged in the record and cannot be located. He starts by citing Uniform Rules, Courts of Appeal, Rule 2-1.7, which states:

The record shall include exact copies of all documentary evidence and other evidence (including depositions filed in evidence) in the order in which such evidence was filed. If it is necessary that the original of any evidence be filed, such original must be filed separately and not attached to the record; however, there must be proper reference in the record showing such filing. No record of another case (or prior record in the same titled and numbered case) shall be included in the record, unless such other record has been introduced in evidence (at trial) in the case on appeal or on writs, in which event such other record shall accompany the record as an exhibit.

Henderson contends that he asked specifically for the missing exhibits and learned that not only were the exhibits not lodged, but their whereabouts were unknown. He objected at the multiple bill hearing to the sufficiency of the evidence. After learning that the exhibits introduced at the multiple bill hearing were lost, he correctly questioned how the state could prove the allegations of the multiple bill. Henderson parallels his case to State v. Santee, 02-0693 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, where this court affirmed the defendant’s conviction for possession of cocaine, but vacated his adjudication as a multiple offender and remanded the matter because the defendant objected to the sufficiency of the evidence to prove the allegations of the multiple bill, and the record failed to contain the multiple bill exhibits for this court’s review.

11 ¡According to Henderson, at the 25 February 2012 hearing as to the multiple bill, he challenged whether the state identified him as the person convicted in the district court case numbers 499-787 and 408-666. Now, he cannot challenge his adjudication because the record is devoid of this evidence.

The state agrees that Henderson was told that the exhibits introduced at his multiple bill proceeding were unavailable, not in the record, and therefore are not a part of the record presently before us. Hence, the state agrees that Henderson’s adjudication as a multiple offender must be vacated and remanded.

The record before this court contains the multiple bill and Officer Jay Pacquet’s expert testimony on fingerprints. The state offered other supporting evidence that is not a part of this record. Further, both Henderson and the State agree that the information is unavailable and/or missing. Thus, Henderson’s adjudication and sentence as a multiple offender must be vacated in light of Santee, p. 5, 834 So.2d at 536, citing La. Const. art. I, § 19; State v. Ford, 338 So.2d 107 (La.1976), “because the exhibits are not available, it is impossible to determine the merits of this assignment of error, and whether the State met its burden of proof at the multiple bill hearing. Therefore, the defendant’s adjudication and sentence under the multiple offender statute are vacated.”

Y.

CONCLUSION

The trial court must determine whether harmless error existed in denying Henderson discovery of J.W.’s criminal record and then proceed accordingly. | ^Henderson's sentence as a multiple offender is vacated for the reasons discussed above. This case is remanded for further proceedings.

VACATED IN PART; REMANDED.

      . Henderson was also charged with a violation of La. R.S. 14:69, illegal possession of stolen property, which was severed by the trial court on his motion; that matter is not a part of this appeal.

      . The record contains testimony regarding both a 1999 robbery, wherein Henderson was the robber, and the 2 January 2012 crime that is the subject of the case at bar.

      . Because J.W. is a minor in juvenile detention, we use his initials in lieu of his name in this opinion.

      . La. Ch. C. art. 412(A) states:
      Records and reports concerning all matters or proceedings before the juvenile court, except traffic violations, are confidential and shall not be disclosed except as expressly authorized by this Code. Any person authorized to review or receive confidential information shall preserve its confidentiality in the absence of express authorization for sharing with others.

      . Henderson was multiple billed on 25 February 2013. The minute entry references the state's exhibits, i.e., finger prints; arrest registers from July 1999, June 1999, and August 2011; and certified court documents in case numbers 409-335, 408-666, and 449-787. The record before us fails to contain these exhibits.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    CITY OF NEW ORLEANS, et al. v. Kevin M. DUPART. Kevin M. Dupart v. City of New Orleans, et al. City of New Orleans, et al. v. Kevin M. Dupart.
    Nos. 2013-CA-1292, 2013-CA-1293, 2013-CA-1294.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.

      James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Miles L. Granderson, Assistant City Attorney, Joyce G. Joseph, Deputy City Attorney, Sharonda R. Williams, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET.
   EDWIN A. LOMBARD, Judge.

|/The Appellant, Kevin M. Dupart, seeks review of two (2) judgments, dated June 20, 2013 and August 21, 2013, of the district court denying his respective Motions for Preliminary Injunction. Finding that the district court committed manifest error in rendering its June 20, 2013 judgment, and further finding that the district court erred in failing to render an Administrative Judgment of the City of New Orleans — the Appellee — null, we reverse.

The instant cases were consolidated by order of this Court. This consolidated appeal arises out of a code enforcement proceeding brought by the City of New Orleans (“the City”), against Kevin M. Dupart (“Mr. Dupart”), as the owner of property located at 1416 Mandeville Street (“the Property”) in New Orleans. In July 2010, the Property was inspected by a New Orleans code enforcement inspector, who noted violations of the unoccupied property standards code then located in Chapter 28 of the New Orleans Code of Ordinances (“the City Code”). As a result of the violations found, the City scheduled an administrative hearing for October 21, 2010, and a Notice of Hearing |awas sent via certified mail to Mr. Dupart on September 14, 2010, advising him of the October hearing date.

Mr. Dupart attended the October 21, 2010 hearing, where he was found “conditionally guilty” of City Code violations by an Administrative Hearing Officer (“AHO”) at the Recommendation of a City Facilitator. The AHO further informed Mr. Dupart that he was being fined $500 plus $75 in costs and $100 per day, but the fines would be suspended or rescinded if there was substantial work in progress by December 15, 2010, the next hearing date set. A judgment was not rendered against Mr. Dupart as a result of this hearing.

At the December 15, 2010 hearing, which Mr. Dupart attended, the AHO determined that the condition of Mr. Du-part’s property was still in violation of the City Code. He was fined $500 plus $65 in costs plus $300 per day for sixty days; however, the AHO informed him that the judgment could be suspended if he could prove that there was work in progress on the property by the next hearing date. Thus, Mr. Dupart was given a 60-day extension, until the next hearing date of February 16, 2011, to bring his property into compliance.

On February 9, 2011, the Property was again inspected and was deemed to still be in violation. Consequently, at the February 16, 2011 hearing, the AHO determined that the Property was blighted and a public nuisance. Mr. Dupart did not attend this hearing. The AHO rendered a Final Judgment (“the Administrative Judgment”) on February 16, 2011, but it was not signed until March 9, 2011.

The Notice of Administrative Judgment was filed as a lien in the Office of the Recorder of Mortgages for Orleans Parish in April 2011. Thereafter, the City | ^requested the issuance of a writ of fieri facias, and the Clerk of Civil District Court issued the writ in case no. 2011-4585. A Notice of Seizure was later issued setting the property for sale by the Sheriff of Orleans Parish (“the Sheriff’) on November 8, 2011. ■ Mr. Dupart’s property was seized by the Sheriff on August 30, 2011. The City effectuated domiciliary service of the Notice of Seizure and initial sale date on Mr. Dupart on or about September 1, 2011. The property was initially offered at auction on November 8, 2011, but was ultimately sold at an April 18, 2012 Sheriffs sale.

Prior to the auction purchaser paying for the Property and the sheriffs deed being issued, on May 8, 2013, Mr. Dupart filed a “Petition to Annul Sheriffs Sale, To Annul Administrative Judgment, For Temporary Restraining Order, For Preliminary and Permanent Injunction, and for Damages” seeking to enjoin the completion of the sale and delivery of the deed to the auction purchaser. The district court granted the temporary restraining order, and Mr. Dupart’s lawsuit was transferred to the division of the district court to which the foreclosure suit had been allotted and consolidated with said suit.

A hearing on Mr. Dupart’s Motion for Preliminary Injunction was held on June 13, 2013. At the preliminary injunction hearing, Mr. Dupart argued that the Administrative Judgment was null and void for defects patent on the face of the proceedings, specifically that the Notice of Hearing did not comply with City Code Sec. 28 — 39(d). The district court, however, held that Mr. Dupart had been granted two (2) extensions of time to bring the Property into compliance and denied the | preliminary injunction motion. Mr. Du-part appealed the denial of his Motion for Preliminary Injunction.

Mr. Dupart later filed a second Motion for Preliminary Injunction arguing that the Administrative Judgment was null and void because: 1) it was not signed within seven (7) days of the administrative hearing as explicitly required by City Code Sec. 28-44, and 2) it did not comply with the requirement of City Code Sec. 28-39(c) that “the notification shall expressly state: ‘The purpose of the hearing is to determine whether the unoccupied property is blighted for purposes of expropriation.’ ” The district court denied Mr. Dupart’s second Motion for Preliminary Injunction sua sponte without a hearing.

Subsequently, Mr. Dupart timely appealed the denial of his second Motion for Preliminary Injunction. Mr. Dupart’s appeals were later consolidated by our Court. In this consolidated appeal, Mr. Dupart raises two (2) assignments of error:

1. The district court committed legal and factual errors, and abused its discretion in denying his first motion for preliminary injunction because the Administrative Judgment is null and void based upon a defective Notice of Hearing that was noncompli-ant with the requirements of City Code 28-39(d).
2. The district court committed legal and factual error and abused its discretion in denying his second motion for preliminary injunction because the Administrative Judgment is null and void because it was not signed within seven (7) days of the code enforcement hearing as required by City Code Section 28-44.

“The standard of review for a preliminary injunction is whether the trial court abused its discretion in ruling.” Mid-South Plumbing, L.L.C. v. Dev. Consortium-Shelly Arms, L.L.C., 12-1731, p. 10 (La.App. 4 Cir. 10/23/13), 126 So.3d 732, 739 (citing Kern v. Kern, 11-0915, p. 6 (La.App. 4 Cir. 2/29/12), 85 So.3d 778, 781). As we have explained, “[t]hat broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.” Id. [citations omitted].

The preliminary injunction is an interlocutory device designed to preserve the existing status pending a trial of the issues on the merits of the case. Id., 12-1731 at p. 9, 126 So.3d at 739 (citing Chalmette Amusement Co., Inc. v. Alphonso, 07-1512, p. 7 (La.App. 4 Cir. 4/16/08), 983 So.2d 239, 243). It may be granted based merely on a prima, facie showing by the petitioner that he is entitled to relief. Id. (citing Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29). To prevail on a hearing for a preliminary injunction, the mover must show: 1) the injury, loss or damage mover will suffer if the injunction does not issue may be irreparable; 2) that he or she is entitled to the relief sought; and 3) that he or she is likely to prevail on the merits of the case. See Kern, 11-0915 at p. 6, 85 So.3d at 781. However, when the conduct sought to be enjoined is unlawful, a showing of irreparable harm is not required. Moretco, Inc. v. Plaquemines Parish Council, 12-0430, p. 6 (La.App. 4 Cir. 3/6/13), 112 So.3d 287, 290.

Compliance with City Code Sec. 28-39(d)

In his first assignment of error, Mr. Dupart avers that the district court committed legal and factual errors, and abused its discretion in denying his initial Motion for Preliminary Injunction. He avers that the Administrative Judgment is Rnull and void based upon the City’s issuance of a defective Notice of Hearing that was non-compliant with the requirements of City Code 28-S9(d).

City Code Sec. 28-39(d) provides:

The notice shall state that the owner or alleged violator shall have seven days from the postmark date to respond in writing to request an extension of time prior to an administrative enforcement hearing to bring the unoccupied property within compliance with the Code. The notice may include any such materials as provided by the director to describe the process and criteria for applying for and being granted said extension of time.

Mr. Dupart contends that the City’s September 14, 2010 Notice of Hearing lacked a required element under Sec. 28-39(d): notice of his right to request an extension of time to bring the Property into compliance prior to the hearing. The City does not contest Mr. Dupart’s assertion that his Notice of Hearing lacked language advising him that he had a limited time within which to request an extension of time to come into compliance prior to the administrative hearing.

He further argues that Miccol Enterprises, Inc. v. City of New Orleans, 12-0864 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, is dispositive of this issue, but the district court misapplied our holding in Miccol in denying his Motion for Preliminary Injunction. Mr. Dupart avers that in Miccol, we reached the following holdings:

• administrative decisions that are penal in nature are strictly construed;
• [l]aws that provide for the coming into existence of liens and privileges are strictly construed; and
• the express requirements of the City Code relative to the contents of notices of hearings were “not mere technicalities.”

Miccol, 12-0864 at pp. 12-14, 106 So.3d at 753. He maintains that based upon these holdings, the City’s deficient Notice of Hearing renders the Administrative Judgment “null and void for defects patent on the face of the proceedings.” Id., 12-0864 at p. 14, 106 So.3d at 754.

Moreover, although the hearing officer at the October 21, 2010 hearing granted him an extension, Mr. Dupart avers that the extension is irrelevant because City Code Sec. 28-39(d), which must be strictly construed pursuant to Miccol, requires written notice of an extension of time prior to the hearing. He argues that considering the ordinance’s requirements, such a defect is incurable after the notice has been sent and renders the entire proceeding null and void for defects on the face of the proceedings.

Additionally, he avers that substantial compliance with the requirements of Sec. 28 — 39(d) did not occur because the City did not inform him of his right to request an extension of time prior to the hearing, nor was he offered and/or granted an extension of time before the hearing. Once the administrative hearing commenced, it was impossible to grant him an extension of time “prior” to the hearing. He contends that the extension granted was actually a finding of conditional guilt as well as an assessment of a $500 fine, costs of $75 and a daily fine of $100, with the costs and fines being rescinded or suspended if the Property was either brought into compliance or there was substantial work in progress by December 15, 2010. Consequently, Mr. Dupart argues that the district court confused the AHO’s giving of additional time to bring the Property into compliance at the October 2010 hearing as fulfilling the requirement that he be advised of his right to request an extension of time before the administrative hearing occurred. Thus, he argues that the district court committed legal error |Rand/or abused its discretion in holding that the City’s substantial compliance with the ordinance was legally sufficient. We agree.

In Miccol, our court reviewed whether the district court erred in granting the plaintiffs motion for summary judgment on the issue of whether the City’s administrative judgment of blight and public nuisance against the plaintiff was a nullity. In that case, the City issued a “Notice of Violation and Hearing Notice” notifying the plaintiff of alleged City Code property violations and of an administrative hearing. The plaintiff was granted an extension at the initial hearing; however, at the following hearing the plaintiff was found guilty and the property was adjudicated blighted and a public nuisance.

Thereafter, the City filed a request for the issuance of a writ of fieri facias, which was issued by the Clerk of Court. An auction date was set subsequently to sell the plaintiffs property. Prior to the sale, however, the plaintiff filed a petition seeking a preliminary injunction to prevent the sale and to stop the City from interfering with the plaintiffs possession. The district court issued a judgment staying the sale of the property. Miccol, 12-0864 at pp. 1-3, 106 So.3d at 748.

The plaintiff later filed a motion for summary judgment arguing that the administrative judgment issued was null because the wording of the original “Notice of Violation and Hearing Notice” did not conform with Sec. 28-39(d) of the City Code of New Orleans. The City also filed a motion for summary judgment. The district court granted the plaintiffs motion for summary judgment, but denied the City’s motion. Id., 12-0864 at p. 3, 106 So.3d at 748-49.

|9On appeal, the City challenged the district court’s grant of summary judgment alleging that the plaintiff was verbally notified of his right to request an extension of time at the first administrative hearing and that an audio file of said hearing evidenced the notification. However, our Court explained that the audio file, which was not included in the record, could not be considered by our Court on appeal. Id., 12-0864 at pp. 6-7, 106 So.3d at 750-751.

We ultimately determined under our de novo review, that the district court did not err by granting the plaintiffs motion for summary judgment finding the administrative judgment to be null and void for defects patent on the face of the proceedings, and denying the City’s motion for summary judgment. Id., 12-0864 at pp. 13-14, 106 So.3d at 753-54. We explained that one of the purposes of the Notice of Hearing, pursuant to Sec. 28-39(d) is to apprise the property owner or alleged violator of his or her right to request an extension to bring the property into compliance. Id. We held that Sec. 28-39(d) “expressly mandates the City apprise the alleged violator of their right to request an extension of time prior to an administrative hearing to bring their property within compliance.” Id. [emphasis added]. Lastly, our Court considered that there was no evidence that the plaintiff received notification of an enforcement hearing that included information apprising the alleged violator, the plaintiff, of its “right to request an extension prior to an | ^administrative hearing to bring its property into compliance.” Id., 12-0864 at p. 13, 106 So.3d at 753. We further explained:

the City’s assertion as to what was communicated to Miccol [the plaintiff] at the September 14, 2010 hearing is not substantiated by any evidence. As stated, the audio file of the September 14, 2010 is not a part of the record on appeal, and facts referred to therein cannot be considered by this Court.

Id.

We note that in denying Mr. Dupart’s motion at the preliminary injunction hearing, the district court reasoned that it reviewed Miccol, but found it to be factually distinguishable because our Court in Mic-col could not consider the administrative hearing audio file, wherein the hearing officer’s allegedly granted an extension, as the file was not made a part of the record. The district court reasoned:

Considering all of the foregoing factual circumstances, this court finds that the City of New Orleans substantially complied with the law, that Mr. Dupart was proeedurally noticed regarding the conditions of his property, he failed to remedy the defects, and he was afforded reasonable opportunities to be heard. Unlike Miccol Enterprises, Inc. v. City of New Orleans, wherein the Fourth Circuit’s review of the record did not include the transcript or audio tapes of the administrative hearings, here this court has the benefit of reviewing the transcripts and CDs of two administrative hearings which granted plaintiff two extensions of time. Based on the reasons orally assigned and because plaintiff has failed to meet the threshold requirement to warrant injunctive relief, plaintiffs request for a preliminary injunction is hereby denied.

The district court is correct in its observation that it had the benefit of a more complete record and, therefore, could review the transcripts of the first administrative hearing where Mr. Dupart was given an extension of time. However, we find that this distinction is not dispositive of whether the City in fact |ncomplied with its requirement to notify Mr. Dupart of his right to request an extension prior to the administrative hearing.

As we explained in Miccol, one of the purposes of the Notice of Hearing is to apprise the property owner or alleged violator of his or her right to request an extension to bring the property into compliance. This appraisal is mandated by City Code Sec. 28-39(d). It is undisputed that Mr. Dupart was not notified prior to his first hearing that he had the right to delay the hearing by requesting an extension of time to bring his property into compliance with the City Code. Moreover, Mr. Dupart was given an extension at the October 21 hearing, but he was not advised prior to being sworn-in at said hearing that he could have requested an extension.

The City’s deficient notice precluded Mr. Dupart of availing himself of his right to request an extension prior to the hearing, potentially remedying the Property, and avoiding conditional fines and costs. Being granted an extension of time after testifying before an administrative hearing officer who found him “conditionally guilty” and “conditionally” levied fees and costs totaling over $600 against him, is distinct from being timely notified by the City that, he was entitled to request an extension of time to bring his property into compliance. An administrative record against Mr. Dupart commenced as a result of his receipt of the Notice of Hearing and his appearance before the AHO on October 21, 2010.

As Mr. Dupart noted, our Court held in Miccol that administrative decisions that are penal in nature are strictly construed. Indeed, the instant administrative decision was penal in nature because as a result of the Property being adjudicated blighted and a public nuisance, it was expropriated by the City and auctioned off | ^pursuant to City Code Sec. 28-58 and La. R.S. 13:2575-2576. Laws that provide for the coming into existence of liens and privileges are strictly construed. Id., 12-0864 at p. 12, 106 So.3d at 753 (citing City of Alexandria v. Shevnin, 240 La. 983, 991, 126 So.2d 336, 339 (1961)). Furthermore, when it is provided that liens and privileges may arise only after the performance of certain definite acts by a governing authority, strict adherence to such requirements is mandatory as a condition precedent thereto. Id. Thus, in the instant matter, we find that the district court committed a legal error in finding that the City’s substantial compliance with a City Code provision, which must be strictly construed, was sufficient.

Lastly, absolutely null judgments may be attacked collaterally, at any time, by rule or by any other method. Id., 12-0864 at p. 10, 106 So.3d at 752 [citation omitted]. In addition to the articles governing nullity actions in the Louisiana Code of Civil Procedure, Louisiana law recognizes that a judgment may also be absolutely null or void ab initio for defects patent on the face of the proceedings. Id. Mr. Dupart did in fact file a petition for nullity wherein he requested additional relief, including a preliminary injunction. Therefore, because the City did not comply with its mandated administrative procedures, we find that the March 9, 2011 judgment adjudicating Mr. Dupart’s property blighted and a public nuisance is null based upon defects patent on the face of the proceedings. Moreover, the district court erred in not granting Mr. Dupart a preliminary injunction because he made a prima facie showing that he was entitled to the relief sought.

We pretermit discussion of the remaining assignment of error having determined that the March 9, 2011 Administrative Judgment is null.

11SDECREE

For the foregoing reasons, the June 20, 2011 judgment of the district court denying the Motion for Preliminary Injunction of Kevin M. Dupart, is reversed, and the March 9, 2011 Administrative Judgment of the City of New Orleans is null.

REVERSED.

      . The record does not contain a copy of the original Notice of Hearing; however, Mr. Du-part produced a Notice of Hearing issued by the City, in a separate code enforcement proceeding, two (2) days after his Notice of Hearing was sent.

      . This appeal is numbered 2013-CA-1292.

      . In appeal numbers 2012-CA-1293 and 2012-CA-1294, Mr. Dupart sought review of the denial of his second Motion for Preliminary Injunction.

      . We note that the Notice of Hearing in both Miccol and in the instant appeal were issued by the City in 2010.

      . As noted above, City Code Sec. 28-39(d) states that the notice "shall” state that the owner or alleged violator shall have seven days from the postmark date to respond in writing to request an extension of time prior to an administrative enforcement hearing to bring the unoccupied property within compliance with the Code. Regarding the use of the word "shall”, La. C.C.P. art. 5053 provides in pertinent part:
      Words and phrases are to be read in their context, and are to be construed according to the common and approved usage of the language employed. The word "shall” is mandatory ...


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Michael HAMPTON.
    No. 2013-KA-0580.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   PAUL A. BONIN, Judge.

h Michael Hampton was charged by bill of information with indecent behavior with a juvenile under seventeen years old. See La. R.S. 14:81 A(l). The jury returned a verdict of guilty of indecent behavior with a juvenile under thirteen years old. See La. R.S. 14:81 H(2). The trial judge sentenced Mr. Hampton under the provisions of Subsection 81 H(2) to five years of imprisonment, two years of which must be served without the benefit of probation, parole, or suspension of sentence. Mr. Hampton appeals his conviction but not his sentence.

Mr. Hampton asserts three assignments of error. He first complains about the qualification of a pediatrician as an expert in the fields of child abuse and delayed reporting of abuse. Mr. Hampton next contends that the pediatrician, once qualified, was allowed to give opinion testimony on delayed reporting beyond the scope of that permitted by State v. Foret. Finally, Mr. Hampton argues that his motion for a mistrial was improperly denied despite the prosecutor repeatedly making comments, such as “thankfully we are not here for rape,” during closing arguments.

|2We have reviewed each of Mr. Hampton’s assignments under an abuse-of-discretion standard, which is highly deferential to rulings made by the trial judge. Because none of these rulings were based “on an erroneous view of the law or a clearly erroneous assessment of the evidence” and each choice was permissible, we find that the trial judge did not abuse her discretion in any of the three complained-of rulings.

We did, however, identify a possible error patent in the discrepancy between the offense charged and the crime for which the jury returned a verdict. See La. C.Cr.P. art. 920(2). In response, both the district attorney and Mr. Hampton’s appellate counsel note that the jury’s verdict, finding that indecent behavior was committed with a juvenile under the age of thirteen years, necessarily establishes that the offense was committed with a juvenile under the age of seventeen years; thus, there is no prejudice mandating retrial. The district attorney claims that the proper remedy is to vacate the sentence and remand for resentencing pursuant to Subsection 81 H(l); the defendant agrees that, on remand, Mr. Hampton should be resen-tenced under the less stringent provisions of Subsection 81 H(l).

We accordingly affirm Mr. Hampton’s conviction. We, however, vacate the sentence imposed and remand for resentenc-ing under the provisions of Subsection 81 H(l). We explain our decision in greater detail below.

We first analyze Mr. Hampton’s argument that the trial judge improperly qualified Jamie Jackson, M.D., as an expert in the area of child sexual abuse and delayed disclosure. Mr. Hampton does not challenge Dr. Jackson’s qualification as an expert in the field of pediatrics.

A

At the outset, we note that Mr. Hampton did not seek a particularized hearing to test the reliability of expert testimony on delayed disclosure. See Dauberb v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See, e.g., State v. Chauvin, 02-1188, p. 18 (La.5/20/03), 846 So.2d 697, 709. Mr. Hampton also did not proffer countervailing medical testimony either to the judge as the gatekeeper for opinion testimony or to the jury as the trier of fact. There is considerable skepticism, if not downright distrust, about the scientific reliability of delayed disclosure studies in both the medical and legal fields. See Margaret H. Shiu, Unwarranted Skepticism: The Federal Courts’s Treatment of Child Sexual Abuse Accommodation Syndrome, Southern California Interdisciplinary Law Journal, 18:651 (2009). Thus, the only evidentiary basis for the trial judge’s ruling was the uncontroverted testimony of Dr. Jackson.

Consequently, in reviewing this assignment of error as well as another in Part II, post, we are constrained by the prece-dential rules for handling this difficult issue set forth in State v. Foret, 628 So.2d 1116 (La.1993). The Supreme Court explained that the trial judge in Foret, as here, had not conducted an evidentiary shearing — now referred to.as a “Daubert hearing” — in which he could exercise his gatekeeper function and determine the admissibility of expert evidence. See id. at 1131. As a result, the Supreme Court noted that its “analysis of the issues is based on consideration of the information gleaned from prior reported cases and published literature on the subject matter.” Id. Thus, the rules or directives announced in Foret are “not necessarily static.” Id.

The Supreme Court explained that the rules announced in Foret would not “preclude consideration by a trial court, performing its gatekeeping function via an evidentiary hearing, of the admissibility of psychological testimony in sexual abuse cases for certain limited purposes, based on current evidence bearing on the reliability and accuracy of this type of evidence.” Id. (emphasis added). Conversely and importantly for our purposes, we are bound by the Foret rules as Mr. Hampton also failed to insist on an eviden-tiary hearing to present any updated or current evidence “bearing on the reliability and accuracy” of delayed reporting evidence.

As will be more fully discussed in Part II-B, post, Fóret allows for limited expert testimony on delayed disclosure or delayed reporting. See id. at 1129-1130. Thus, we first consider whether Dr. Jackson, having her credentials challenged with respect to expertise in child abuse and delayed disclosure, was properly qualified as an expert witness by the trial judge.

_kB

In this particular case, the parties stipulated that any alleged lewd or lascivious act, proscribed by the statute, was not “upon the person” of the child, but rather “in the presence of ... [the] child.” See La. R.S. 14:81 A(l). Thus, there was no expectation that a physical-medical examination would result in any positive findings of sexual abuse as the child had not been physically injured. More importantly, the child in this case, who was under the age of thirteen years old and a relative of Mr. Hampton, first reported that Mr. Hampton’s actions began to occur more than three years prior to her reporting the incidents. Thus, there was an expectation that her delayed disclosure might require explanation not within the ken of the ordinary juror.

If specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact at issue, “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” La. C.E. art. 702. “A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert.” State v. Friday, 10-2309, p. 24 (La.App. 1 Cir. 6/17/11), 73 So.3d 913, 930. We may also consider whether a witness has previously been qualified as an expert. See id.

Dr. Jackson earned an undergraduate degree in psychology from the University of Florida. She completed her medical school studies at the American | ^University in the Caribbean and then pursued her three-year pediatric residency at LSU Medical School along with a one-year fellowship in forensic pediatric medicine at Children’s Hospital through LSU Medical School.

Dr. Jackson is licensed to practice medicine in Louisiana and is a board-certified pediatrician. Since the completion of her fellowship, she has been an attending physician for child abuse pediatrics at Children’s Hospital as well as a clinical assistant professor of pediatrics at LSU. She has attended numerous professional conferences and made presentations at them. She belongs to the Section on Child Abuse and Neglect of the American Academy of Pediatrics and is also a member of the American Professional Society on the Abuse of Children. At the time of her testimony, she was not yet eligible to become certified in the subspecialty of child sexual abuse. She estimated, however, that she had treated over 700 victims of child sexual abuse.

Dr. Jackson has testified as an expert ■witness in courts in the Metropolitan New Orleans area, Livingston and Terrebonne Parishes, as well as the State of Texas. She is generally qualified as an expert in child abuse pediatrics and has never been denied qualification as an expert witness.

In addition to the foregoing, which was developed in the predicate to her qualification, we also consider additional details which were developed during Dr. Jackson’s trial testimony. These include that she has received training in delayed disclosure as part of her specialty in child abuse and has done extensive reading on |7the subject as well. Dr. Jackson, however, is not a psychiatrist and has no specialized training in psychiatry.

Considering her education, training, work experience, and the practical application of her skills in conjunction with her consistent acceptance by courts — she has never been denied — as an expert witness in the field of child sexual abuse, we find that the trial judge did not abuse her discretion in qualifying Dr. Jackson as an expert in pediatrics, child sexual abuse, and delayed disclosure. Dr. Jackson was qualified to give opinion testimony in order to assist the jury in understanding the evidence and determining a fact at issue.

II

In this Part, we turn to address Mr. Hampton’s contention that the trial judge erred in overruling his objection to the opinion testimony given by Dr. Jackson. We apply the directives issued in State v. Foret and conclude that the trial judge made no legal error in the exercise of her discretion to permit Dr. Jackson’s expert testimony respecting delayed disclosure in child abuse cases.

A

Mr. Hampton specifically objected to Dr. Jackson’s opinion testimony about delayed disclosure or delayed reporting:

PROSECUTOR: Now, in your opinion, is it unusual for a child, who had been sexually abused to wait a period of time before disclosing the abuse?
DR. JACKSON: Yes [sic],
| «PROSECUTOR: And why is that?
DR. JACKSON: There’s also different factors that come in. Many times it might be due to naivety, if the child is really young, and they don’t realize that this isn’t happening with everybody else’s — maybe a relative, or whoever, and they might think that’s normal.
DEFENSE COUNSEL: Objection, Your Honor.
BY THE COURT: Overruled.
DR. JACKSON: They may think that that is normal. The next thing might be internal factors, where the child may have some type of shame, or fear, or they may have anticipation of negative consequences, if they disclose. They may feel like someone may not believe them. They may feel that they may be blamed for what’s happening. Another thing might be external factors, maybe that someone has threatened them, or told them something bad would happen to them, or their family, or someone, even maybe a parent might have said, if anybody ever did anything to you I would kill them. So the child doesn’t want to say anything, because they’re afraid that their parent would end up in trouble. So there’s lots of different factors that come into play.
■ PROSECUTOR: And based on your experience, is it something that happens frequently?
DR. JACKSON: Yes.
|nPROSECUTOR: And would it be unusual for a child not to disclose everything the first time, and maybe disclose more the second time?
DR. JACKSON: Yes. There’s also different variants. Someone may have asked a question a certain way.... Also, depending on what the child initially may disclose, and someone’s reaction to what they initially disclosed ..., that can also have some — account for some variations. And the child may be fearful of repeating whatever it was initially. And that, again, it goes back to those other things I just said about, maybe being fearful of what’s going to happen to the parent. They feel comfortable saying ... portions of history.

At no point during the direct examination of Dr. Jackson did the prosecutor ask any question about the specifics of delayed disclosure dynamics vis-á-vis the circumstances of this case. Mr. Hampton’s counsel on cross-examination, however, did inquire as to Dr. Jackson’s opinion regarding the specifics of this case:

DEFENSE COUNSEL: When you evaluated [the child in this case], did you come up with anything specific to her that would explain her delayed disclosure?
|inDR. JACKSON: I said earlier about when she said that, when she was age nine [Mr. Hampton] told her that she was going to be in trouble, and he would also be in trouble. And she—
DEFENSE COUNSEL: And that was the first instance? DR. JACKSON: When she was age nine, yes. And she also said with regards to, because she was talking about when — because I asked her how did anyone find out about these things, and she said she wrote a note to her mom. And then there was some question about her mom, her thinking that her mom wouldn’t believe her.
DEFENSE COUNSEL: And the thought that her mom wouldn’t believe her came from [the child in this case], not from Mr. Hampton?
DR. JACKSON: That’s right. I believe that’s what she said, yes. I don’t know if there was anything that [Mr. Hampton] said with regard to that, but she just talked to me about herself thinking that.

Later, on re-direct examination, Dr. Jackson discussed the findings of one study, a phone survey, of women who self-reported as having been raped as a child. The study found that about twenty-five percent of women did not disclose their rape until adulthood or never disclosed at all, about fifty percent did not disclose for at least one year, and that the average time period prior to disclosure for that fifty percent was about five years. Dr. Jackson further testified, over objection, in response to the prosecutor’s questions that the rates differed between |nmales and females, that the study was only conducted with women, that delayed disclosure is pretty consistently a common feature for child sexual abuse, and that males are actually less likely than females to disclose their abuse. Notably, however, Dr. Jackson’s testimony on re-direct examination did not address the specifics of this case.

B

As discussed in Part I-A, ante, the Supreme Court has examined expert witness testimony concerning “child sexual abuse accommodation syndrome,” one component of which is the delayed disclosure of the abuse. See Foret, 628 So.2d at 1124 (listing the principal factors or “dynamics” of child sexual abuse accommodation syndrome to include secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and/or unconvincing disclosure; and retraction). For our present purposes, it is unnecessary to survey the far-reaching policy considerations underlying the rules announced in Foret as that case set forth a bright-line rule on expert testimony regarding delayed disclosure in child abuse cases.

“[S]uch opinion testimony as a determinant of a victim/witness’ credibility is not admissible.” Id. at 1129. An exception to this bright-line rule exists “only for the limited purpose of explaining, in general terms, certain reactions of a child to abuse that would be used to attack the victim/witness’ credibility.” Id. at 1131 (emphasis added). This explanation may be necessary to assist the jury in 1 ^understanding why “superficially bizarre” reactions, such as delayed reporting, occur. See id. at 1130.

The Supreme Court, in Foret, found an expert’s testimony to be his opinion regarding the victim’s credibility. See id. That expert “did not limit his testimony to general information about possible psychiatric explanations for the delay in reporting,” and, over objection, concluded that, “in his expert opinion, the witness was telling the truth on that occasion as to whether abuse had occurred.” Id. An expert assessment of a witness’ credibility is improper. See id.

Later, in addressing and excluding expert testimony about post-traumatic stress disorder (PTSD) for the purpose of substantively proving that sexual abuse occurred, the Supreme Court explicitly reaffirmed and applied its holding in Foret that “expert testimony of general characteristics that would explain delays in reporting, recantations, and omissions of details is admissible.” Chauvin, 02-1188 at p. 17, 846 So.2d at 708 (emphasis added).

C

From our review of Dr. Jackson’s testimony in response to the questions from the prosecutor, we conclude that she did not deviate from the limits established by Foret. Her testimony on direct and redirect examination presented her opinion only about general characteristics that' would explain a delay in reporting sexual abuse. Dr. Jackson’s opinion testimony only deviated from the confínes set forth in Foret in response to cross-examination by Mr. Hampton’s counsel for which he cannot now assign error. Nonetheless and most importantly, 11sDr. Jackson never expressed any opinion whatsoever about the credibility of the child in this case.

Similar to the expert witness in Friday, Dr. Jackson “testified very broadly about the general characteristics of sexual abuse victims, namely how such victims delay disclosure and some of the reasons why disclosure may be delayed, such as fear or shame.” 10-2309, p. 26, 73 So.3d at 931. Again, similar to the expert witness in Friday, based on Dr. Jackson’s training and experience in treating children who were victims of child abuse, “[i]t would not have been beyond her expertise to explain ... the basics of delayed disclosure.” 10-2309, p. 26, 73 So.3d at 932. Here, the trial judge did not err in overruling Mr. Hampton’s objections to the prosecutor’s questions for Dr. Jackson regarding whether it was unusual for children not to report sexual abuse immediately. See 10-2309, pp. 26-27, 73 So.3d at 932. See also State v. Myles, 04-434, p. 13 (La.App. 5 Cir. 10/12/04), 887 So.2d 118,126 (expert’s “testimony was properly limited to general behavioral characteristics of child abuse victims in disclosing alleged incidents, specifically why victims might recant or delay reporting”).

Ill

We turn now to explain our decision with respect to Mr. Hampton’s third assignment of error. Mr. Hampton argues that the trial judge abused her discretion by denying his motion for mistrial. During opening statements, the prosecutor made remarks that “thankfully we are not here for rape” to which the trial judge sustained Mr. Hampton’s objection. This statement was echoed in closing | ^arguments several times as well to which the trial judge overruled Mr. Hampton’s objection. Mr. Hampton interprets these remarks as the prosecutor insinuating to the jury that Mr. Hampton was a rapist and that he would rape the child in this case or others in the future if the jury did not convict him. Mr. Hampton argues that these statements were so prejudicial in content and tone that they prevented him from receiving a fair trial.

The district attorney replies in written argument that the prosecutor never accused Mr. Hampton of committing rape or any other crime than that with which he was charged. The trial prosecutor, based upon the evidence, only sought to show that the nature of Mr. Hampton’s acts of indecent behavior were escalating in danger to the young girl. On the earliest occasion, the girl related, Mr. Hampton forced her to watch a pornographic movie with him while he masturbated and ejaculated into his hand. He told her to sit on him. When she refused and moved away from him, he attempted to grab her; she began to cry. At that point, according to the girl, Mr. Hampton ceased his advances. On the second occasion, while driving the young girl in her mother’s car, Mr. Hampton exposed his penis to her, masturbated, and ejaculated. When she jumped into the vehicle’s back seat, Mr. Hampton reached over the front seat and tried to touch her. On the third occasion, also in a car, Mr. Hampton offered to impregnate the girl, an underaged 1^relative, and exposed his penis, telling her to touch it. She refused, and Mr. Hampton reached over the front seat to touch her between her legs. He stopped when she threatened to jump from the moving car.

A mistrial shall be ordered upon motion of a defendant when the prosecutor, during closing arguments, refers directly or indirectly to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible!.]” La.C.Cr.P. art. 770(2). Following our review of the entirety of the prosecutor’s closing arguments, we are satisfied that at no time did he refer to another crime committed or alleged to have been committed by Mr. Hampton. See State v. Norah, 12-1194, pp. 34-35 (La.App. 4 Cir. 12/11/13), 131 So.3d 172, 194 (citing State v. Sharp, 418 So.2d 1344, 1349 (La.1982)). Thus, Mr. Hampton was not entitled to a mandatory mistrial under the provisions of Article 770.

Having concluded that Mr. Hampton was not entitled, as a matter of law, to a mistrial under Article 770, we turn to consider whether the trial judge abused her discretion in finding that the prosecutor’s comments during closing argument were [1finot so prejudicial to Mr. Hampton as to warrant declaring a mistrial. See La.C.Cr.P. arts. 771, 775(5). “[A] trial judge has broad discretion in controlling the scope of the closing argument.” State v. Draughn, 05-1825, p. 44 (La.1/17/07), 950 So.2d 583, 614 (citing State v. Prestridge, 399 So.2d 564, 580 (La.1981)). Additionally, prosecutors are granted wide latitude in choosing their closing argument tactics. See id. (citing State v. Martin, 93-285, p. 18 (La.10/17/94), 645 So.2d 190, 200). The scope of permissible statements during closing arguments is “confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” La.C.Cr.P. art. 774 (emphasis added). And “[t]he argument shall not appeal to prejudice.” Ibid.

For our purposes, when the prosecutor makes a remark or comment which is not within the scope of Article 770, and the remark is of such a nature that it might create prejudice against the defendant “in the mind of the jury,” upon the request of the defendant, “the court shall promptly admonish the jury to disregard the remark or comment....” La.C.Cr.P. art.-771. Often, the proper disposition in these cases is to admonish the prosecution rather than finding reversible error. See State v. Smith, 11-0091, p. 29 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 695. This is because a mistrial is a drastic remedy, see Draughn, 05-1825 at p. 44, 950 So.2d at 614, that is hesitatingly granted in Louisiana due to our deep-rooted trust in juror’s good sense and fair-mindedness. See State v. Ricard, 98-2278, p. 5 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 396.

117If, however, on motion of the defendant, the court is satisfied that an admonition is not sufficient to assure a fair trial for the defendant, the court may grant a mistrial. See La.C.Cr.P. art. 771. “Even when the prosecutor exceeds permissible bounds, a reviewing court should ‘not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict.’ ” State v. Norah, 12-1194 at p. 35, 131 So.3d at 194, (quoting State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036)

The prosecutor’s comments are repetitive and, in their repetitiveness, seem wholly unnecessary to arguing the facts of the actual charges sought to be proved against Mr. Hampton and somewhat condescending to the jurors’ ability to grasp the tangential point he was making about Mr. Hampton’s acts. But we do not find that the trial judge abused his discretion in finding the prosecution’s comments insufficiently prejudicial — if at all prejudicial — so as to undermine Mr. Hampton’s access to a fair trial. These statements surely did not contribute to the verdict in this case.

IV

In this Part, we explain our resolution of an issue of particular concern.

A

The bill of. information in this ease charged Mr. Hampton with indecent behavior with a juvenile under the age of seventeen years old. The bill also identified by initials the victim and stated that there was an age difference of greater than two years between the under-aged victim and Mr. Hampton.

118The verdict of the jury, however, found Mr. Hampton guilty of “indecent behavior with a juvenile under the age of thirteen years old.” We identified this as a possible error patent and called for the parties to brief the matter as follows: “(1) whether there is an error patent and (2), if there is an error patent, whether the error is harmless or, if the error is not harmless, what would be the remedy (e.g., new trial, resentencing, etc.).”

Our initial concern was that La. R.S. 14:81 H(2) defined a crime of greater severity than that defined by La. R.S. 14:81 A(l). The latter, Subsection A(l), pertinently provides that indecent behavior with juveniles is the commission, with the intention or arousing the sexual desires of either person, of “[a]ny 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.” Subsection A(l) also provides that “[ljack of knowledge of the child’s age shall not be a defense." Notably, La. R.S. 14:81 H(l) provides in pertinent part: “[wjhoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both”. In contrast, Subsection H(2) provides in pertinent part: “[wjhoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years.” La. R.S. 14:81 H(2) (emphasis added).

hiiB

“In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” La. Const, art. 1, § 13. The bill of information “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” La.C.Cr.P. art. 464. And “[ijt shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated.” Ibid. But “[ejrror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” Ibid. “The court, on its own motion or on motion of the defendant, may require the district attorney to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant.” La.C.Cr.P. art. 484. See also State v. Kennerson, 96-1518, pp. 6-7 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1372.

Here, the bill of information did not state the official citation of the statute. When Mr. Hampton filed a motion for a bill of particulars requesting the statutory-citation that he was accused of violating along with any more specific, applicable subsection of the statute, the district attorney unhelpfully responded by referring the defendant to an attached police report. The police report only identified the statutory citation as “R.S. 14:81” and identified no applicable subsection. Other than the title of the statute, the entirety of Section 81 consists only of subsections. Moreover, there is no mention in the attached police report that the victim was | gander the age of thirteen. Mr. Hampton then filed objections to the bill of particulars claiming it to be unsatisfactorily furnished. One of the objections was that the district attorney failed to specify upon which part or subpart of La. R.S. 14:81 that the prosecution was based. The record does not contain any indication that the district attorney filed supplemental or corrective pleadings or that Mr. Hampton pursued his complaint further.

The record does reflect, however, that the prosecution filed a pretrial motion in limine to exclude mention of the sentencing range in this case. Notably, the prosecutor argued in his motion that “the Code under the sentencing provision is at hard labor for not less than two years nor more than twenty-five years, and at least two years of the sentence shall be served without benefits.” In opposition to the prosecutor’s argument, Mr. Hampton’s counsel revealingly countered that she “would object [to] being prevented from including in voir dire any pertinent sentencing information pertaining to a mandatory minimum sentence, or the fact that there is one in this case, and this is not a probation eligible offense.” Of course, the only mandatory minimum sentence under Section 81 pertains to when the victim is under the age of thirteen; thus, Mr. Hampton was aware prior to trial of the nature of the charge.

The record also reflects that, after the prospective jurors were seated at the beginning of voir dire, the trial judge advised them that the defendant had been charged “with one count of indecent behavior with a juvenile under the age of thirteen.” Defense counsel did not indicate surprise or otherwise object to the judge’s identification of the charge.

12i The record, importantly, also reflects that, at the close of trial, the judge initially instructed the jury that “indecent behavior with a juvenile is the commission by anyone of any lewd or lascivious act ... upon the person of or in the presence of any child under the age of seventeen, who is more than two years younger than the defendant, with the intention of arousing or gratifying the sexual desires of either the defendant or the child.” There was a brief interruption at that moment during which the trial judge conferred at the bench with counsel. The judge then advised the jury of responsive verdicts: “All right. Ladies and Gentlemen, I caught a mistake in my jury instructions.... Responsive verdicts that you will actually have will be ... The first one should be, your first option should read guilty as charged of indecent behavior with a juvenile under the age of thirteen. That is what the defendant has been formally charged with....” Not only did Mr. Hampton’s counsel not object to this revised instruction, but, when the trial judge inquired of her, she affirmatively consented to it.

Based upon these developments, we, like the district attorney and Mr. Hampton’s appellate counsel in brief, conclude that Mr. Hampton was not misled to his prejudice by the defective bill of information and the deficient bill of particulars. Thus, a reversal of his conviction is not warranted. See La. C.C.P. art. 464.

C

We initially questioned whether the discrepancy between the crime charged in the bill of information and the verdict of the jury was an error patent. The parties, however, have considered the matter and concluded that, while reversal ofJ^Mr. Hampton’s conviction is unnecessary as the jury found proof beyond a reasonable doubt that Mr. Hampton committed indecent behavior with a juvenile under the age of seventeen years (the crime charged in the bill of information), the sentence must conform to the offense for which he was charged and convicted.

Ordinarily, we are to decide criminal cases under the party-presentation principle. See Greenlaw v. United States, 554 U.S. 237, 243-244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Under that principle, we “rely on the parties to frame the issues for decision” and advance arguments that entitle them to relief. See id. at 243, 128 S.Ct. 2559. The scope of appellate review in criminal matters is highly restricted. See La. Const, art. 5, § 10(B). Only errors assigned by a party and errors patent “and no others shall be considered on appeal.” La.C.Cr.P. art. 920 (emphasis added). Having invited the parties to address the possible error patent, we see no reason to deviate from that party-presentation principle in the light of their agreement as to the appropriate remedy, which here is vacating the sentence imposed under Subsection 81 H(2) and remanding the matter for resentencing under Subsection 81 H(l).

We are reinforced in this view because the bill of information in this case averred that the offense occurred between July 1, 2006 and May 31, 2010. Notably, the victim testified without contradiction that her birthday is May 8, 1998. The victim thus turned thirteen years old on May 8, 2011. Subsection H(2) became effective, however, on August 15, 2006. Thus, while the victim was in fact under the age of thirteen during the entire period set forth in the indictment, Subsection H(2) itself was not in effect during the entire period. We are loath to let stand a punishment which is not clearly authorized under such circumstance. See State v. Carper, 47,409, pp. 7-9 (La.App. 2 Cir. 11/14/12), 107 So.3d 118, 123-125. See also State v. Lirette, 11-1167, p. 12 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 809 n. 12 (noting that Subsection H(2) “contains a special sentencing provision when the victim is under the age of 13”).

Therefore, we vacate Mr. Hampton’s previously imposed sentence of five years of imprisonment, two years of which must be served without the benefit of probation, parole, or suspension of sentence.

REMAND INSTRUCTIONS

On remand, the trial judge is to resen-tence Mr. Hampton under the provisions of La. R.S. 14:81 H(l). Any party aggrieved by the sentence imposed upon remand may appeal.

DECREE

The conviction of Michael Hampton for indecent behavior with a child under seventeen years old, a violation of La. R.S. 14:81 A(l), is affirmed. We vacate his sentence and remand for resentencing under La. R.S. 14:81H(1).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . 628 So.2d 1116 (La. 1993).

      . "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

      . We did detect another patent error in that the trial judge proceeded to sentencing without heeding the required twenty-four hour delay following the denial of a motion for new trial. See La.C.Cr.P. art. 873. But, as here, where the defendant is not appealing his sentence, we deem that error harmless. See, e.g., State v. Wheeler, 04-0953, pp. 8-9 (La.App. 4 Cir. 3/9/05), 899 So.2d 84, 89.

      . The prosecutor's remarks made during closing arguments included: "We would be here for a different charge, and it would be a whole other set of facts.” "Luckily, once again, we’re not here for something worse.” "Luckily, again, we’re not here for something worse.” "Thankfully, we're not here for something worse."

      . The full text of Article 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.

        An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . An additional condition of punishment under Subsection H(2) is that “[a]t least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.”

      . On November 18, 2013, we ordered the district attorney to produce a copy of his answers to the bill of particulars. The prosecution responded with a copy of State's Answers to Defendant's Motion for Bill of Particulars and Discovery. The Answers consisted of fifty-nine responses, each of which reads: "See police report and court record; the State reserves the right to amend this answer.”

      . The trial judge was inaccurate in that statement.