source: Caselaw Access Project

author: EZELL, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    STATE of Louisiana v. Stephan M. BERGERON.
    No. KA 14-608.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Stephan M. Bergeron.
    Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, Twenty Seventh Judicial District Court, Opelousas, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|,On December 8, 2009, Defendant, Stephan M. Bergeron, was charged by grand jury indictment with one count of aggravated rape of S.B., a violation of La.R.S. 14:42, and three counts of forcible rape of S.B., violations of La.R.S. 14:42.1. Defendant entered pleas of not guilty to the charges on January 14, 2010. After several pre-trial motions were filed and heard, jury trial began on May 14, 2013. On May 24, 2013, the jury returned the following verdicts: Count One — not guilty of aggravated rape; Count two — guilty of simple rape; Count three — guilty of forcible rape; and Count four — guilty of simple rape. On each count, the jury’s vote was ten to two.

Thereafter, on November 25, 2013, Defendant filed a Motion for Post Verdict Judgment of Acquittal; Alternatively, Motion for New Trial and a Motion in Arrest of Judgment. At a hearing held December 2, 2013, the trial court denied all motions. During the same hearing, the trial judge sentenced Defendant as follows: simple rape (two counts) — twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence on each count; and forcible rape (one count) — forty years at hard labor, the first two years without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently. On December 6, 2013, Defendant filed a Motion for Reconsideration of Sentence, which was denied on May 1, 2014, after a hearing.

On May 6, 2014, Defendant filed a Motion for Appeal and Designation of Record. The trial court granted the motion on May 7, 2014. Defendant is now before this court, alleging two assignments of error— the first involving the ^admission of other crimes evidence and the second involving the sentences imposed.

FACTS

After dating about a month, Defendant and the victim (S.B.) got married. Defendant was seventeen, and S.B. was eighteen when they married. Within their four-year marriage, S.B. alleges that Defendant raped her several times. In addition to the rapes, S.B. testified that Defendant physically and verbally abused her.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record.

Defendant was sentenced immediately after the denial of his Motion for Post Verdict Judgment of Acquittal; Alternatively, Motion for New Trial and Motion in Arrest of Judgment. The court stated that it would proceed to sentencing because more than three days had elapsed since Defendant’s conviction. Louisiana Code of Criminal Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Thus, Defendant should not have been sentenced until twenty-four hours after the denial of the motions, unless the delay was waived.

In State v. Westmoreland, 10-1408, p. 3 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, 377, writ denied, 11-1660 (La.1/20/12), 78 So.3d 140 (footnote omitted) (alteration in original), this court held:

IsHowever, there is no violation of Article 873 where there is an express or implied waiver of the delay. State v. C.S.D., 08-877 (La.App. 8 Cir. 2/4/09), 4 So.3d 204. A defendant can expressly waive the delay when he announces his readiness for sentencing or responds affirmatively when the trial court asks if he wants to be sentenced on that date, State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert, denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002). A panel of this court has previously found that a defendant may impliedly waive the delay where there is evidence in the record that the defendant was aware of the sentencing date, did not object to the delay, and participated in the sentencing hearing and where the trial court thoroughly set forth its reasons for sentencing. Id.

In the present case, on May 24, 2013, at the conclusion of the trial, sentencing was set for August 1, 2013. On July 22, 2013, the defense filed a motion for a complete transcript of the proceedings and a motion for continuance. Sentencing was continued to October 3, 2013. On September 25, 2013, the court continued the matter to November 7, 2013, due to the requested transcript being incomplete. Minutes dated October 4, 2013, indicate that defense counsel was present in court when sentencing was refixed for December 2, 2013. The post-trial motions filed by the defense on November 25, 2013, were set for hearing on December 2, 1013. Thus, the record indicates the defense was aware the sentencing would be taken up on December 2, 2013.

The defense voiced no objection when sentencing was taken up immediately after the denial of the post-trial motions. After the victim addressed the court, the defense presented witnesses and evidence in support of the imposition of a lenient sentence. The trial court’s comments prior to imposing sentence clearly indicated that it had carefully considered what would be appropriate sentences to impose, and the sentences were supported with ample reasons. We note that in his brief to this court, defense counsel does not assign as error the trial court’s failure to delay sentencing and he does not allege any prejudice as a result of the error. This court JLfinds the facts in this case support an implied waiver of the delay required by La.Code Crim.P. art. 873, so we find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, Defendant alleges that the trial court improperly admitted other crimes evidence by allowing the testimonies of H.R. and T.G., two women who claimed Defendant forced himself upon them sexually. Prior to trial, the State filed a notice of intent to introduce other crimes evidence through the testimonies of three women — Chelsea Pryor, H.R., and T.G. In this assignment of error, Defendant alleges error as to the admission of the testimonies of H.R. and T.G. but alleges no error as to the testimony of Chelsea. Thus, we will not address the admissibility of Chelsea’s testimony.

At the pre-trial hearing, as to the admissibility of the other crimes evidence, the victim, S.B., first testified as to her allegations against Defendant. S.B. testified that she and Defendant were married for four years. S.B. was eighteen, and Defendant was seventeen when the two got married. The couple started dating in November 2006 and were married in December 2006. According to S.B., Defendant soon began separating her from her family. The first time Defendant raped her, S.B. testified, was in late December 2006, or early January 2007. Defendant became angry with S.B. after reading some old messages on her MySpace account. Defendant wanted to know details of S.B.’s past relationships and began hitting her and pushing her around. Defendant also whipped S.B.’s legs with his belt, causing whelps all over her legs. Defendant then tied S.B.’s hands and feet with a rope. Using a knife, Defendant cut S.B.’s clothes off of her and began vaginally raping her.

IsThe next incident, S.B. testified, occurred about a month later. Again, Defendant was angry with S.B. about her prior relationships. Defendant took S.B.’s clothes off; put her into a cold shower and poured buckets of ice water on her. S.B. remembered the incident lasting about thirty minutes. Within the next couple of days, S.B. and Defendant began having the same argument, and this time the argument ended with Defendant raping S.B.:

A: Um, so a day or two later, we began arguing about it again, about the — me having boyfriends before marrying him and he, this time, did not tie me up because at this point I knew better than to try and run and so he — he raped me the same way vaginally, this in the same way, saying the same things. “Is this how so and so did it? Did you enjoy it? Do you like this? Does this make you feel good,” and I would always cry and say no and ask him to stop.”

S.B. testified about various other incidents of abuse as well as the birth of their son, Branson. Branson was sick from birth and had to stay in the hospital for several months. While Branson was in the hospital, S.B. became pregnant with their second child. Eventually, S.B. had to go with Branson to Washington, D.C. for a liver transplant. A couple of days before she left for D.C., the following “rape incident” occurred:

We got into an argument. Um, I was actually accusing him of cheating. I had already caught him quite a few times before cheating on me and, um, I just — I just knew that he was and this was, um — -so we started arguing about it and how dare you accuse me of, you know, cheating on you and he hit me with a shoe across my face ... After the shoe incident, we were in the living room and he said, “Now you know — You know what you’re about to get, right,” and I knew what he was talking about. I knew he was going to rape me and I was aware and he said — because I started crying, and he was like, “You’re going to make it worse if you don’t cooperate with me,” and he said, “So am I going to — are you going to take off your clothes for me or am I going to — ” Well, actually it started with, “Are you going to walk to the bedroom or am I going to have to drag you to the bedroom,” and I said, like “I don’t want to do this. Don’t do this to me. I don’t want — ” You know, “This is going to hurt,” and he said, “I’m going to say it again. Are you going to walk to the bedroom or [sam I going to have to drag you there?” So I got up and I walked to the bedroom and when we got in the bedroom, he said, “Now are you going to take your clothes off or am I going to have to do it myself and rip your clothes off,” and I started crying again, like please, like begging the last time, like “Please don’t do this,” and he said, “This is going to happen so you either cooperate, take off your clothes or I’ll just have to rip them off.” So I took off my clothes and he then put me on the bed and held my face down into the pillow and — and he raped me anally this time.

After the last rape described above, Defendant told S.B. he thought they should divorce. S.B. left for D.C., and Defendant started a relationship with T.G. When S.B. returned home from D.C., she got a restraining order against Defendant and lived with her family. Defendant begged S.B. to return to him, which she eventually did. S.B. asked the judge to remove the restraining order against Defendant, but the judge refused to do so.

In March, 2009, the final rape incident occurred. S.B. and Defendant were arguing about a photograph of a naked girl that Defendant received on his phone. During the argument, Defendant asked S.B. if she was going to walk to the room or if she was going to make him drag her. S.B. walked to the room, crying and telling him that they did not have to do “this.” Defendant took off S.B.’s clothes, forced her on the bed, held the back of her neck, and raped her anally. S.B. begged Defendant to stop, but Defendant only penetrated harder. Afterward, S.B. had a hand print on the back of her neck, which was seen by Defendant’s aunt. When made aware of the allegations of rape made by T.G., Defendant told S.B. that he knew he raped S.B., but he did not rape T.G.

H.R. was the next witness to testify at the other crimes evidence hearing. H.R. testified that she and Defendant began seeing each other when she was a sophomore in high school. She and Defendant saw each other for approximately eight months to a year, during which time they had sexual relations. H.R. | explained that the first time she and Defendant had sex, she told Defendant she was not comfortable with having sex for both religious and personal reasons. Defendant, however, forced himself upon her:

A: I mean I kept — I kept trying to move and I kept telling him to stop. Q: Did you try to get away?
A: I would try to move off, yeah, and he would hold me down, my legs, um, and, um, I was so angry, um, both at what was happening and his expression. Um, I started hitting him on his chest, um, and he just kept giving me the same confused face.
Q: And he did what he wanted?
A: Yes, yes.

H.R. further testified:

Q: Did you make it clear to him that you did not want to have sex with him?
A: Yes.
Q: And you told me — I think you mentioned he was holding your thighs down?
A: Yes.
Q: So he forcibly — He forced himself in you?
A: Yes.

After their initial sexual encounter, H.R. and Defendant had consensual sex. H.R. also testified that on two or three occasions, Defendant “pinned” her and said, “This is how I could kill you with my bare hands[.]” As for her relationship with family and friends, H.R. testified that Defendant discouraged her from seeing her family and friends.

T.G. also testified at the other crimes evidence hearing. She stated that she and Defendant were boyfriend and girlfriend and that they had sex the first time | ST.G. went to Defendant’s house. T.G. moved in with Defendant for about a week, at which time T.G. knew that Defendant and S.B. were getting a divorce. T.G. testified that Defendant told her he wanted to kill S.B., that he beat S.B. with a shoe, and that he liked to watch S.B. crawling on the floor and screaming for him to stop. When asked how Defendant was violent towards her, T.G. testified that Defendant held scissors to her throat and stated that he could easily kill her. Another time, on New Year’s Eve, Defendant became angry with T.G., slapped her across the face four times, and threw her against a cabinet.

Later, Defendant became angry with T.G. when he learned that she had communicated with her old boyfriend months before. T.G. described the incident as follows:

A: Uhm, we got in his car, because my car was at his house, so that he was going to bring me to my car. Uhm, we’re driving down the road. And that’s when he tells me that he’s going to kill me, tonight’s the night, get ready to die. Uhm, he grabs my head, smashes it on the window and we drive and he’s screaming and I’m crying and we pull into a gas station in Eunice and he gets out. And I remember I had my cell phone with me. And I didn’t know if I should call somebody or if I should text, you know. Everything was going through me [sic] head. What do I do now? And that’s when he opens the passenger side and laughs at me and says, “Give me your cell phone.”
Q: Okay.
A: And so ...
Q: Does he go in the store?
A: Uh-huh, he goes into the store. And ...
Q: And you’re still in the car?
A: Uh-huh.
Q: Are you locked in the car?
A: I’m' not. I could have ran. I should have. Uhm, and that went through my head, you know. But at this time he had told me that he was in cahoots with all the cops around here. Uhm, you know, he — ¡thatg no where was safe. If I was going to tell anybody, they were already in on it. Uhm, and I thought about running into the gas station and then, what if, you know, the cops there, they know him, you know, is it going to be worse, is the punishment going to be worse if I try to run? Uhm, you know, at that point I was like maybe I can still get out of it some how, like I did the other three times. Because I thought I was going to die the other three times. Uhm, and by the time that I was going to do, he was back in the car.
Q: So once he got back in the car, what happened? Did /all leave the station?
A: Uh-huh, and we went to his house. And the first thing he tells me to do is take off all my clothes.
Q: And did you do that?
A: Yes, ma'am. He makes me — it’s night time. He made me stand in front of the glass window — the glass door— Q: Uh-huh.
A: —naked with the lights on so, you know, cars passing, everybody can see.
Q: How long did you have to do t that?
A: A couple of minutes. It wasn’t a long time. Uhm, he had given me the option to stay there and to deal with the consequences, or that I could get in my car naked and go home,' but that he was going to call his cop friends and have them pull me over and rape me on the way home.
Q: Okay.
A: And—
Q: So what was your choice?
A: —I picked the car.
Q: You’re ready to leave naked?
A: Yeah, absolutely. You know, I didn’t know — I was going to drive faster than the cops were.
Q: Okay.
A: Uhm ...
ImQ: So did you do that?
A: No, ma-am. As soon as I said that, he told me, “No, that’s not an option anymore.”
Q: Okay, so what happened?
A: He started telling me how he was going to get his mafia friends to go and kill my family. Uhm, he’s going to Kill my mom. They’re going to kill my dad. They’re going to kill my Nannie. They were going to kill Heather, which is my cousin with the baby. Uhm, he told me that he was going to get an HIV shot and stick it in me to give me the HIV virus. He ...
Q: Are you still naked during all this? A: Uh-hu, uh-huh. He made me stand up naked and he video taped me. Calling me a slut, made me say, “I’m a slut.” And he video taped it because he was going to send it to my family to let them know how much of a slut I really was. Q: Where were you — what room of the house were you in?
A: In the living room.
Q: Okay; and you’re standing naked this whole time?
A: Uh-huh.
Q: Okay; so he’s telling you to do all these things and does he give you any more options to leave?
A: No.
Q: Okay, so what does he do next after he tells you this stuff?
A: He video tapes me saying that I’m a slut, and then he puts me on the counter, and he rapes me and he video tapes it. And, the whole time—
Q: Vaginally or orally—
A: Vaginally.
Q: —or anally?
A: Vaginally, this time. Uhm ...
InQ: Okay; so, I mean, were you able to fight him off at all?
A: No, and honestly I was too scared to hit him, to do anything like that. Uhm, like I said at the time, all you’re thinking of is, just control the situation, you know. Don’t make him mader (sic). Don’t make — just do whatever you got to do to get him to stop or to get him to calm down.
Q: Okay; so he rapes you, and video tapes you, and then what happens after that?
A: Then I remember him, he’s on the couch and he’s calling, he said the guy’s name was Benny. Uhm, I was on the floor at this time crying because he was telling Benny to kill my family. Uhm, how he was going to do it. He said, “Kill her dad fast because I don’t know him. But, you know, take your time on all the other ones.” And I was on the floor crying and he got off the phone. He was like, okay, now, you know, “How are you going to make me not kill your family?” You know, now it’s your turn. And, uhm ...
Q: What did [you] say? Or did you say anything?
A: I’ll do whatever, you know. I mean, what do I have to do, you know. This whole time this is my fault. In my head, this is my fault that this is happening. You know, these people are going to die and that’s my fault.
Q: You’re believing him?
A: Absolutely.
Q: Okay.
A: Uhm ...
Q: What did you do?
A: Well, he picked me up and started anally raping me. And I was crying.
Q: Where did he put you?
A: On the couch.
Q: Okay.
A: And was, you know, uhm, I was crying hysterically. He threw me off of him and said, “That’s not good enough. That I’m going to 112pick up the phone and your family is going to die now because you can’t do this right.” And I begged him, I said, I’ll do it better, I swear I’ll do it better.” And I didn’t talk. And I ...
Q: So you stopped making noise and stopped crying?
A: Uh-huh.
Q: Okay; and so he did it again?
A: Yes, ma’am.

T.G. stayed the night with Defendant.

After hearing the testimonies of the above witnesses, the trial judge gave the parties an opportunity to submit briefs. According to an affidavit prepared by the St. Landry Clerk of Court, no written brief was submitted by Defendant. In fact, we have found nothing in the record wherein defense counsel presented argument (written or oral) as to the other crimes evidence. The other crimes evidence hearing was prompted by the State’s Notice of Intent to Introduce Evidence Admissible Under La.Code Evid. art. 404(B) and the State’s Amended Notice of Intent to Introduce Evidence Admissable Under La.Code Evid. Art. 404(B). The State also submitted a memorandum in support of its motion. No written brief or memorandum was submitted by Defendant in response to the State’s motions. On April 11, 2013, the trial judge issued written reasons, finding that the testimonies of H.R. and T.G. were proven by a preponderance of the evidence. The trial judge also found that the testimonies of H.R. and T.G. were relevant to show a pattern in Defendant’s deviant attitude and behavior toward women with whom he is in a relationship. Thus, the trial judge found the testimonies of H.R. and T.G. were admissible “under 404(B) as relevant to showing ‘proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.’ ” Although Defendant filed a notice of intent to take supervisory writs outlining his | ^disagreement with the trial court’s admission of the other crimes evidence, we have found no record that a writ was actually filed.

On appeal, Defendant argues that the testimonies of H.R. and T.G. should not have been allowed because their stories were not accepted by a grand jury. At the hearing to determine the admissibility of the other crimes evidence, S.B. testified that the grand jury “pretermitted” as to T.G.’s allegations of rape against Defendant and that the grand jury returned a “no true bill” as to H.R.’s allegations of rape against Defendant. Thus, Defendant asserts that the State failed to meet its burden of proving these offenses occurred. Additionally, Defendant argues that he was unduly prejudiced by the admission of the other crimes evidence:

The undue prejudice attached to the admission of the testimony of H.R. and T.G. is clear. The cases of H.R., T.G. and S.B. [ (victim in this case) ] can be likened to a one-legged chair. One-legged chairs cannot stand on their own. One-legged chairs, if not propped up, will fall down under their own weight. By combining the three legs of H.R., T.G., and S.B.’s testimony, the court propped up the prosecution’s weak case . at bar.
A most telling fact that reveals the undue prejudice of this evidence is the fact that Defendant was acquitted of one charge (Aggravated Rape) and initially no verdicts on the remaining counts. (Rec. Vol. Eight of Eight, pp. 1808-1809) It was only after the judge sent the jury back to deliberate that a verdict was reached. Without the impermissible testimony of H.R. and T.G., it is submitted that Defendant at the least would have been granted a mistrial.

Finally, Defendant asserts that S.B.’s testimony was “so vague and unsupported” that “only the admission of the 404B testimony saved it from rejection by the jury.”

This court finds that since an Article 404(B) hearing was held at which defense counsel questioned witnesses and after which the trial court issued written reasons, the record was sufficiently preserved for this court to review the arguments now raised by Defendant.

114First, Defendant alleges that the State failed to satisfy its burden of proving the other crimes occurred since the grand jury “rejected” the allegations made by both H.R. and T.G. For the allegations made by H.R., the grand jury returned a “no true bill,” and for the allegations made by T.G., the grand jury “pretermitted” a decision. At the Article 404(B) hearing, the trial judge explained that “pretermit-ted” means there was no decision. In its Reasons for Judgment, the trial court stated that the testimonies of H.R. and T.G. were proven by a preponderance of the evidence. The court said nothing regarding the grand jury’s action, presumably because Defendant failed to raise that specific argument in the trial court. In its brief, the State asserts that “[t]he decision of a grand jury to accept, reject, or preter-mit a matter has no bearing on a witness’ testimony for purposes of a 404(B) hearing or trial.” Furthermore, the State asserts that Defendant’s argument rests strictly on the credibility of the witness, which is a question for the trier of fact. Thus, the State argues that it met its burden of proof.

Defendant’s argument has no merit. First, Defendant cites no jurisprudence for his proposition that the grand jury’s “rejection” of the allegations made by H.R.

_J^and T.G. prevented these allegations from being introduced at trial. As stated by the Louisiana Supreme Court:

Although a grand jury is generally regarded as an investigatory tool of the prosecutor, the district attorney is not bound by the grand jury’s action. As stated in the official revision comment under LSA-C.Cr.P. art. 444, “[t]he return of ‘not a true bill’ does not operate as an acquittal, and does not preclude a subsequent charge of the crime by an information filed by the district attorney or by an indictment returned by a subsequent grand jury.” The grand jury action does not sustain a plea of “autre-fois aquit”. Thus, defendant was not acquitted by virtue of the grand jury’s no true bill.

State v. Tanner, 425 So.2d 760, 762 (La. 1983) (footnote omitted) (alteration in original). Furthermore, as noted by the trial judge in the present case, the grand jury’s decision to “pretermit” as to the allegations made by H.R. simply meant it reached no decision. Lastly, defense counsel was able to tell the jury in his opening statement about the grand jury’s decision as to both H.R. and T.G.’s allegations. Thus, Defendant was able to use the grand juries’ decisions to his advantage.

As to Defendant’s claim that he was unduly prejudiced by the admission of H.R. and T.G.’s testimonies, this claim also lacks merit. Defendant argues that the testimonies of H.R. and T.G. “propped” up the State’s weak case against Defendant and without these testimonies, the jury would not have convicted Defendant. Louisiana Code of Evidence Article 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

The supreme court explained Article 403’s balancing test as follows:

Although a defendant’s prior bad acts may be relevant and otherwise admissible under La.C.E. art. 404(B), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La.C.E. art. 403. Any | l(iindupIatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfin-der into declaring guilt on a ground different from proof specific to the offense charged.”).

State v. Rose, 06-402, p. 13 (La.2/22/07), 949 So.2d 1236,1243-44.

At the trial in this case, S.B. (the victim) testified as to the rapes committed against her by Defendant. S.B.’s trial testimony was substantially the same as her testimony at the Article 404(B) hearing. It is well-settled that a victim’s testimony alone is sufficient to support a verdict as long as that testimony was believed by the trier of fact and that testimony does not contain internal contradictions or irreconcilable conflicts with physical evidence:

A victim’s or witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Davis, 02-1043, p. 3 (La.6/27/03); 848 So.2d 557, 559. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d 66, 79.

State v. Dorsey, 10-216, pp. 43-414 (La.9/7/11), 74 So.3d 603, 634, cert, denied, — U.S. —, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Additionally, the jury heard the testimony of S.B.’s sister as to what S.B. told her about Defendant’s conduct — i.e., that Defendant would make her have sex with him, that sex hurts when you do not want to do it, that Defendant cut her clothes off and had sex with her, that Defendant hog tied her and had sex with her, that Defendant stripped her naked and shoved her out of the door, that Defendant poured cold water on her, that Defendant 117slammed her head against the front door, that Defendant threatened to kill her if she left, that Defendant raped her countless times, and that Defendant held her down while he raped her from behind.

The jury also heard the testimony of Chelsea Pryor, another person with whom Defendant had a relationship. Chelsea testified that Defendant told her he abused S.B.:

A:, He told — he would tell me, uhm, that he — how he would abuse her. What he would do to her. Uhm, strip her naked while she was pregnant,- put her in the shower with cold water running on her, throw bucks of ice at her, he would tie her to a chair when she was naked and beat her with a stick or something — beat her with something. Uhm, he locked her in a closet for a few days, starved her while she was pregnant. Uhm, that they got in an argument one time and she took a swing at him and he slammed her face into the concrete while she was pregnant.

Chelsea further.explained what she meant when she said that her sex with Defendant was “sort of consensual”: “Uhm, he would — he just made you feel like you have to or he was going to do it anyway. Like, whether I wanted or not, he was going to get it anyway.”

A recorded telephone conversation between S.B. and Defendant was also played for the jury. In the conversation, S.B. asked Defendant what made him rape her. Defendant responded that he was “sick in the head.” Defendant also stated that he did not look at the situation with S.B. as “spousal rape.” When Defendant tried to explain to the jury the context of the recorded conversation, Defendant testified that when he used the term “rape” in the recorded conversation, he was referring to the allegations made by T.G. and H.R., not to actions committed against S.B. Thus, Defendant actually used the allegations of T.G. and H.R. in his defense at trial.

| ^Considering the testimony of S.B., the testimony of S.B.’s sister, the testimony of Chelsea Pryor, the recorded telephone conversation between S.B. and Defendant, and Defendant’s use of the allegations of T.G. and H.R. in his defense, the testimonies of' T.G. and H.R. alone would not “lure” the jury into finding Defendant guilty of the charges against him. T.G.’s and H.R.’s trial testimonies were substantially ■ the same as their Article 404(B) hearing testimonies. There is nothing in the record to support Defendant’s assertion that the jury’s verdicts were the result of the testimonies of H.R. and T.G. and not the result of evidence specific to the charged offenses.

For the foregoing reasons, this court will not disturb the trial court’s admission of the testimonies of H.R. and T.G. The trial judge found the testimonies of H.R. and T.G. showed a pattern of behavior in Defendant’s relationship with women and were admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or fact. These testimonies, the trial court concluded, were “not simply relevant to show [Defendant’s] bad character, but also to show a pattern of a deviant attitude towards women with whom he is in a relationship, his violent behavior towards them, and his methods of forcing non-consensual séx”. Applying the abuse of discretion standard to the trial judge’s ruling, the trial court did not abuse is discretion in admitting the testimonies of H.R. and T.G. See State v. Garcia, 09-1578, (La.11/16/12), 108 So.3d 1, cert, denied, — U.S.—, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013). This assignment lacks merit.

119ASSIGNMENT OF ERROR NUMBER TWO

By this assignment, Defendant alleges that the trial judge erred in imposing the maximum sentence for a first-time felony offender. After a sentencing hearing, the trial judge imposed a sentence of twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence for each count of simple rape (two counts), which is the maximum sentence for simple rape. For Defendant’s forcible rape conviction, the trial court imposed a sentence of forty years at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence. Although forty years is the maximum term of imprisonment for forcible rape, two years is the minimum term for which the trial court could restrict benefits. La.R.S. 14:42.1. The trial court ordered the sentences to run concurrently.

Although the trial judge did not order a presentence investigation report, the trial judge received a victim impact statement, a report by psychologist Dr. Larry Benoit submitted on behalf of Defendant, and testimony on behalf of Defendant at the sentencing hearing. One of the witnesses to testify at the sentencing hearing was Defendant’s current wife, Jordan Bergeron. Jordan and Defendant have two sons, ages two and one. Jordan also testified that before Defendant was arrested, he worked for Conoco, making approximately eight or nine thousand dollars a month. Jordan described Defendant as hard working, a good father, and a good emotional support for her. Finally, Defendant himself testified that he was twenty-four, had no prior criminal history, had three children, had won foreman of the year for Conoco, and was allowed to work out of the country while being monitored with an ankle bracelet. Defendant maintained that he did not commit any rapes.

After hearing the above, the trial court stated the following:

12nTHE COURT: All right. In connection with any sentencing, the Court is guided by three goals. Those goals of sentencing are deterrence, rehabilitation and protection of the public. The Court also has to take into consideration the provisions of Article 894.1 of the Code of Criminal Procedure.
Paragraph (A) of 894.1 says that when a defendant has been convicted of a felony, the court shall impose a sentence of imprisonment if any of the following conditions occur: Number one, there is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; number two, the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; and three, a lesser sentence would deprecate the seriousness of the defendant’s crime.
Paragraph (B) provides the following grounds that, while not controlling the discretion of the court, in imposing a sentence [sic] should be accorded weight in its determination of suspension of sentence or probation. The Court has considered the factors of 894.1(B) as follows: The Court has considered as applicable provision number one, the offender’s conduct during the commission of the offense manifested a deliberate cruelty to the victim; number four, the offender used his or her position or status to facilitate the commission of this crime; number six, the offender used threats of or actual violence in the commission of the offense; number nine, the offense resulted in significant permanent injury to the victim in this matter; and number twelve, the offender was persistently involved in similar offenses not considered as criminal history or as part of a multiple offender adjudication.
Also in paragraph (B) of 894.1 are the mitigating circumstances and this Court has taken into consideration mitigating circumstances under number twenty-eight and thirty-one. Twenty-eight is that Defendant had no prior history or prior delinquency of criminal activity and had been a law abiding citizen for a substantial period of time and thirty-one is that the imprisonment of the offender would establish excessive hardships to himself as well as to his dependents.
I think Dr. Benoit, in his analysis and his examination and report on Mr. Ber-geron, was pretty insightful as to what happened here and has given the Court — opened a window for the Court to view. Dr. Benoit found Mr. Berger-on to be anxious and irritable and prone to periodic episodes of hostility and aggressive outbursts. Dr. Benoit found that his exaggerated appraisal of his self-worth, his sense of entitlement and his tendency to blame others for his problems make it difficult for him to recognize his own limitations and lead to his repeating problems rather than correcting them and I think that’s pretty accurate based on Mr. Bergeron’s trial testimony as well as his testimony here today in connection with the sentencing.
lipThe Court considers this to be a very serious matter and the Court takes this matter very seriously. The Court has wrestled with the appropriate sentences in this matter and the Court goes back to the testimony of not only the victim of this case but also of the other parties who came and testified under the 404(B) entitlement.
Based upon all of these factors, and the Court, first of all, being concerned with paragraph (A)(1) of the Code of Criminal Procedure, and that is the likelihood that this could happen again; secondly, the Court is convinced that you are in need of correctional treatment; thirdly, a lesser sentence than the Court will impose deprecates the seriousness of this offense; and furthermore, the provisions for the penalties for the violation of the crime or committing the crime of simple rape are without benefit of parole, probation and suspension of sentence, a probated or suspended sentence is not allowed in this particular case.
The Court, taking all of these matters into consideration, on count one — actually, it was count two of the bill, the charge of simple rape, the Court sentences Mr. Bergeron to twenty-five years at hard labor without the benefit of parole, probation or suspension of sentence.
On count three, being the forcible rape charge, the Court sentences him to forty years at hard labor, the first two years without benefit of parole, probation or suspension of sentence.
On count four, being the simple rape charge, the Court sentences him to twenty-five years, hard labor, without the benefit of parole, probation or suspension of sentence.
The Court makes these sentences to run concurrent.

Although no objection was made at the sentencing hearing, Defendant timely filed a written Motion for Reconsideration of Sentence. As a reason for the trial court to reconsider the sentence, Defendant asserted that he was a first-time offender. Also, Defendant asserted that since the trial court imposed the maximum sentence, the trial court failed to consider the mitigating factors. At a hearing held on the motion to reconsider, Defendant testified that he was sexually abused as a child. Pursuant to the State’s objection to such testimony, the trial court stated that this information was in Dr. Benoit’s report, which the court had at the original sentencing. The trial court did not allow Defendant’s testimony since it could ' have | jabeen presented at the original sentencing hearing. The trial court did, however, allow Defendant to proffer the testimony concerning sexual abuse.

After Defendant testified that he lost sixty-three pounds because of the stress, the evidence was closed. The trial court then denied the motion to reconsider, stating the following:

THE COURT: In connection with the Motion for Reconsideration of Sentence, the Motion that was filed herein was basing the Motion basically on the failure of this Court to take into consideration mitigating circumstances under Article 894.1 of the Code of Criminal Procedure.
The Court, in addressing the original sentence, took into consideration all of the factors set forth in Article 894.1 and I believe that is in the sentencing minutes. Furthermore, the Court finds on this particular Motion, the Mover has failed in their burden to carry the burden of proof in this matter and the Motion is denied.

In brief, Defendant argues that the sentences imposed are excessive since Defendant is a first-time felony offender, married S.B. at a very young age, and had two children with S.B. Defendant also points out that he and S.B. had sexual intercourse many times, even after the alleged rapes occurred. S.B., Defendant asserts, did not report any incident of rape until after a custody hearing in August 2009. Even after hearing S.B.’s testimony, Defendant asserts, the jury acquitted Defendant of aggravated rape and initially failed to reach a verdict on the three remaining counts. Finally, Defendant cites cases wherein lesser sentences were imposed.

In response, the State cites cases where similar sentences have been upheld and asserts the following:

The State asserts that the repeated, violent rapes committed by the Defendant demonstrate the most serious violation of these offenses and one of the worst types of offender. His youth, though it may have been a mitigating factor for the jury in its decision to acquit this defendant of the aggravated rape, in fact makes him the scariest type of offender who is prone to and proven an escalation in his ¡^violent behavior. The evidence proved that Defendant began as a young teenager with H.R. exploring and learning the tools of isolation, coercion, manipulation, denigration and control. Defendant continued this pattern of violent and manipulative behavior with C.P. and T.G[.], which all mirrored the extensive physical and emotional abuse and rapes suffered by S.B. The report of Dr. Benoit supports these assertions by the State.
The Court ostensibly reviewed the evidence adduced at trial and particularized this sentence to the Defendant according to the facts. It is clear by its articulated reasons that the court took ALL factors into consideration and carefully tailored this sentence to this defendant and to the seriousness of the matter. Again, the trial court has wide discretion in the imposition of a sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067.
Where the record demonstrates a thoroughly considered and fully particularized sentence, the State asserts that Defendant’s sentence is constitutionally sound, adequately particularized to this offender, and proportionate to the crime. Accordingly, the State asserts that this allegation is without merit and prays that this Court finds the same.

The law is well settled concerning the standard to be used in reviewing excessive sentence claims:

•La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. 19ACook, 95-2784 (La.5/31/96); 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.
... [E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91 (first and third alterations in original).

In the present case, Defendant received the maximum term of imprisonment for each of the counts for which he was convicted. La.R.S. 14:42.1 and La. R.S. 14:43. It is well-settled that “[m]axi-mum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225 (citing State v. Sullivan, 02-35 (La-App. 5 Cir. 4/30/02), 817 So.2d 335). As previously stated, even though the trial judge imposed the maximum term of imprisonment for forcible rape, he ^imposed the minimum restriction of benefits — two years. Additionally, the maximum sentences were ordered to run concurrently rather than consecutively. The rapes for which Defendant was convicted occurred at different times and all occurred in a violent manner, the trial court could have ordered the sentences to run consecutively. La.Code Crim.P. art. 883; State v. Bartie, 12-673, (La.App. 3 Cir. 12/5/12), 104 So.3d 735, unit denied, 13-39 (La.8/30/13), 120 So.3d 256. Thus, Defendant received a significant reduction in sentencing exposure by the trial court’s decision to order the sentences to run concurrently.

As for the sentences imposed in other simple rape cases, we note the following: State v. Cleveland, 12-163 (La.App. 4 Cir. 4/10/13), 115 So.3d 578, unit denied, 13-926 (La.11/8/13), 125 So.3d 444 (fifteen-year sentence was upheld for simple rape committed by a defendant performing oral sex on a victim who was apparently unconscious from drinking); State v. Clark, 05-647 (La.App. 3 Cir. 12/30/05), 918' So.2d 552 (fifteen-year sentence without benefits for simple rape was found to be excessive when rape was committed by a thirty-one year old, single father who received an honorable discharge from the U.S. Army and the National Guard, who was a first felony offender, and who claimed that he engaged in consensual sex with the victim); State v. Despanie, 06-1269 (La.App. 3 Cir. 2/7/07), 949 So.2d 1260 (maximum twenty-five year sentence without benefits was upheld for plea of no contest to an amended charge of simple rape where defendant, a certified nursing assistant at a long-term care facility, was seen having sex with a ninety-two year-old female suffering from dementia).

As for sentences imposed in other forcible rape cases, we note the following: State v. Kelly, 12-1197 (La.App. 1 Cir. 4/1/13), 2013 WL 1300731 (unpublished opinion), writ denied, 13-1332 (La.11/8/13), 125 So.3d 450 (maximum forty-year sentence with two |2fiyears without benefits was upheld for rape committed after defendant entered the victim’s home, violently forced the victim to engage in vaginal intercourse, attempted to force the victim to engage in oral sex, and placed a pillow over the victim’s face); State v. J.S., 10-1233 (La-App. 3 Cir. 5/11/11), 63 So.3d 1185 (thirty-years, ten of which was without benefits, was affirmed for a forcible rape committed by a fourth felony offender who tied the victim to a bedpost, blindfolded her, gagged her, and violently raped her, even though defendant claimed that he and the victim had consensual sexual intercourse thereafter); State v. Colgin, 43-416 (La.App. 2 Cir. 8/13/08), 989 So.2d 876, unit denied, 08-2304 (La.5/15/09), 8 So.3d 581 (maximum forty-year sentence with fifteen years to be served without benefits was upheld when defendant pled guilty pursuant to plea agreement and defendant was a second-felony offender who had oral sex with a ten-year-old child); State v. Jacobs, 07-1370 (La.App. 3 Cir. 6/5/08), 987 So.2d 286, writ denied, 08-2000 (La.4/3/09), 6 So.3d 769 (thirty-year sentence upheld for forcible rape committed by a defendant with a significant criminal history and committed when Defendant broke into the victim’s motel room, took money from her purse, and engaged in non-consensual sex with the victim); State v. Steele, 10-1336 (La.App. 3 Cir. 5/4/11), 63 So.3d 412 (thirty-year sentence without benefits was affirmed when defendant pled guilty to a forcible rape committed when Defendant offered the victim a ride home, took the victim to a gravel road, repeatedly raped the victim, punched the victim in the face, banged the victim’s head against the dashboard, and left the victim stranded).

Considering the trial judge’s well-articulated reasons for the sentences, the violent nature of the rapes, the imposition of the sentences to run concurrently, andJjjthe trial court’s restriction of the minimum number of years to be served without benefits for forcible rape, none of the sentences imposed are excessive.

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

THIBODEAUX, Chief Judge, concurring in part and dissenting in part.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

|¶1 concur with the majority that the defendant’s convictions should be affirmed. I disagree, however, with the imposition of maximum sentences on this first-time offender.

The defendant is a first-time offender, has remarried with two children, and has held a solid job with Conoco Phillips, having been selected as the “foreman of the year.” While the defendant’s conduct cannot be condoned, the record do.es not reflect that he was a “worst offender.” I rely on State v. Fruge, 13-1386 (La.App. 3 Cir. 5/7/14), 139 So.3d 602, as jurisprudential support that these sentences are excessive given the circumstances of this case.

For the foregoing reasons, I dissent in part.

      . Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity.

      . When the jury originally returned to the courtroom with its verdicts, the vote on each count was nine to three. The trial court ordered the jury to return to deliberations, and the jury subsequently returned to the courtroom with a vote on each count of ten to two.

      . S.B. testified that Branson died in 2010 at age two.

      . Defendant does not challenge the trial court’s use of the preponderance of the evidence standard and, in fact, asserts in brief that the preponderance of the evidence is the appropriate standard. The supreme court, however, has not yet spoken as to the appropriate standard:
      This court has not yet addressed the extent to which Article 1104 and the burden of proof required by the federal rules, as interpreted in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), has affected the burden of proof required for the admissibility of other crimes evidence. State v. Jacobs, 99-0991, p. 26 n. 15 (La.5/15/01), 803 So.2d 933, 952 n. 15 [cert, denied, 535 U.S. 922, 122 S.Ct.
      1219, 152 L.Ed.2d 165 (2002)]; State v. Cotton, 00-0850, p. 11 n. 3 (La.1/29/01), 778 So.2d 569, 578 n. 3. In the instant case, we need not reach the issue of the applicable burden of proof because we find that the State satisfied its burden under either the clear and convincing evidence standard or the preponderance of the evidence standard.

        State v. Rose, 06-402, p. 12 (La.2/22/07), 949 So.2d 1236, 1243 n. 3. Likewise, we find it is not necessary to reach the issue of the applicable burden of proof in the present case since Defendant is not challenging the standard used by the trial judge and since the State satisfied its burden under either standard.

      . On appeal, Defendant does not challenge the sufficiency of the evidence.


author: AMY, Judge.

text:
    Alverda Ardoin DESHOTELS v. Seldon Joseph DESHOTELS, Sr.
    No. 13-1406.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Jack Derrick Miller, (A Professional Corporation), Parker Reed Mitchell, Crowley, LA, for Plaintiff/Appellant, Alverda Ardoin Deshotels.
    Nicole B. Breaux, L.L.C., Attorney at Law, Crowley, LA, for Plaintiff/Appellant, Alverda Ardoin Deshotels.
    Ted Deshotels, Lafayette, LA, in proper person.
    Mary Deshotels Courville, Lafayette, LA, in proper person.
    Andre Deshotels, Palmetto, LA, in proper person.
    Anne Deshotels, Bastrop, LA, in proper person.
    Matthew R. Deshotels, Baton Rouge, LA, in proper person.
    Jamie Deshotels Pucheu, Baton Rouge, LA, in proper person.
    Kimberly Deshotels, Alexandria, LA, in proper person.
    Steve Deshotels, Opelousas, LA, in proper person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   AMY, Judge.

11 This matter arises from a dispute as to the validity of a matrimonial agreement which purported to establish a separate property regime during the parties’ marriage. After a hearing, the trial court found that the purported agreement was not executed in either of the statutorily mandated forms, but that the wife’s admission in court that she signed the purported agreement and knowledge of the purpose of the agreement were sufficient to create a natural obligation. Based on that finding, the trial court dismissed the petition for partition of community property. The wife appeals. For the following reasons, we reverse and remand.

Factual and Procedural Background

The parties, Alverda Ardoin Deshotels and Seldon Joseph Deshotels, Sr., were married in 1986. Ms. Deshotels’ petition for divorce was filed in December 2010. After the judgment of divorce was obtained, Ms. Deshotels filed a petition for partition of community property. However, pointing to a “marriage agreement” which had been filéd in the St. Landry Parish records, Dr. Deshotels contended that no community property regime had ever existed. Ms. Deshotels argued that the purported matrimonial agreement was invalid due to irregularities in its execution. After a hearing, the trial court found that the purported matrimonial agreement was not properly executed as either an authentic act or as an act under private signature duly acknowledged. However, the trial court found that, because Ms. Deshotels admitted in court that she signed the document and had knowledge of the purpose of the agreement, the acknowledgment was the “missing performance necessary to |2complete the natural obligation” of the parties to be separate in their property and that the agreement was thus judicially enforceable.

Ms. Deshotels appeals, asserting that the trial court erred in giving effect to the purported matrimonial agreement.

Discussion

Ms. Deshotels’ assignment of error concerns the trial court’s determination that, although the purported matrimonial agreement was not properly executed, that it was legally enforceable as a natural obligation.

Matrimonial Agreements

Pursuant to La.Civ.Code art. 2329, Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

Further, La.Civ.Code art. 2381 prescribes the form of the matrimonial agree- . ment, stating that “[a] matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” The formalities of |sArticles 2329 and 2331 must be construed stricti juris because of the strong legislative policy against spouses giving up their community rights during marriage without judicial supervision. Rush v. Rush, 12-1502 (LaApp. 1 Cir. 3/25/13), 115 So.3d 508, writ denied, 13-911 (La.5/31/13), 118 So.3d 398.

Pursuant to La.Civ.Code art. 2331, it is permissible for spouses to execute a contract changing the legal regime from one of community property to one of separate property either before or after the marriage takes place. However, in order for the contract to be effective, it must have been executed in the manner specified in the articles. See La.Civ.Code art. 2329. Our review of the record reveals that the purported marriage agreement at issue herein is a pre-nuptial agreement. There is nothing in the record which would suggest that the Deshotels attempted to comply with the form and procedural requirements for post-nuptial agreements. When dealing with pre-nuptial agreements, where spouses fail to properly execute the prescribed form prior to their marriage any purported matrimonial agreement is unenforceable. See Rush, 115 So.3d 508; Ritz v. Ritz, 95-683 (La.App. 5 Cir. |412/13/95), 666 So.2d 1181, writ denied, 96-131 (La.3/8/96), 669 So.2d 395; Lauga v. Lauga, 537 So.2d 758 (La.App. 4 Cir.1989).

Ms. Deshotels’ uncontested testimony was that in March 1986, she, Dr. Deshotels, and two witnesses executed the marriage agreement at her place of business in Lake Charles. Ms. Deshotels testified that there was no notary present when the purported marriage agreement was executed. Further, Ms. Deshotels stated that she kept a copy of the agreement, a copy of which was submitted into evidence. A review of Ms. Deshotels’ copy of the marriage agreement reveals that it is dated “this_day of March, 1986;” that the date for the Deshotels’ intended marriage is left blank; that the spaces for the names of the witnesses were left blank; and that the space for the notary’s signature is left blank. One of the witnesses, Gloria Gossett, also testified that she signed the marriage agreement. According to Ms. Gossett’s testimony, there were only four people present at the signing. Further, Ms. Gossett denied knowing the notary.

Dr. Deshotels submitted into evidence a copy of the marriage agreement which was recorded in the St. Landry Parish records. A review of that document reveals that it is similar in content to that submitted by Ms. Deshotels, but with several notable changes. The version of the marriage agreement is dated “this 30th day of May, 1986;” the date of the Deshotels’ intended marriage is filled in as June 1, 1986; the names of the witnesses are inserted in the appropriate blanks; and the document is signed by a notary. The trial court reviewed the original contained in the St. Landry Parish clerk’s files, and noted that there appeared to be white-out over the date area. Ms. Deshotels identified her signature on the copy filed with the St. Landry Parish clerk.

| ¡¿Pursuant to La.Civ.Code art. 2331, the pre-nuptial marriage agreement had to be “made by authentic act or by an act under private signature duly acknowledged by the spouses.” Further, in order to satisfy the requirements of Article 2331, all of the elements of form must have been perfected before the marriage. Rush, 115 So.3d 508. According to the record, the parties stipulated that the purported marriage agreement was not an authentic act. Thus, the purported marriage agreement would only be effective if the requirements of an act under private signature duly acknowledged were met prior to the Des-hotels’ marriage. Our review of the record reveals no evidence that Ms. Deshotels acknowledged the purported marriage agreement prior to her marriage. Because the elements of form must have been perfected before the marriage, Ms. Des-hotels’ admission in court that she signed the marriage agreement cannot act to retroactively resurrect the defective marriage agreement.

Accordingly, we find no error in the trial court’s conclusion that the purported matrimonial agreement was null and void because it was not executed in compliance with the specific formalities of La.Civ.Code art. 2329.

Natural Obligations

Although the trial court found that the purported matrimonial agreement was invalid for want of form, it determined that a natural obligation had been created due to Ms. Deshotels’ admission in court that she signed the marriage agreement and that she signed it “knowing that she and [Dr. Deshotels] were agreeing to remain separate in their property.”

Louisiana Civil Code Article 1760 states that “[a] natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance.” However, “[a] natural obligation is not enforceable by judicial faction. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not be reclaimed.” La.Civ. Code art. 1761. The Civil Code provides several examples of circumstances giving rise to a natural obligation, including “[w]hen a civil obligation has been extinguished by prescription or discharged in bankruptcy” and “[w]hen the universal successors are not bound by a civil obligation to execute the donations and other dispositions made by a deceased person that are null for want of form.” La.Civ. Code art. 1762.

In order for a moral duty to become a natural obligation, five requirements must be met:

(1) The moral duty must be felt towards a particular person, not all persons in general[;]
(2) The person involved feels so strongly about the moral duty that he truly feels he owes a debt[;]
(3) The duty can be fulfilled through rendering a performance whose object is of pecuniary value[;]
(4) A recognition of the obligation by the obligor must occur, either by performing the obligation or by promising to perform. This recognition brings the natural obligation into existence and makes it a civil obligation!; and]
5) Fulfillment of the moral duty must not impair the public order.

Thomas v. Bryant, 25,855 (La.App. 2 Cir. 6/22/94), 639 So.2d 378, 380 (citing Saúl Litvinoff, The Law of Obligations § 2.4, 5 Louisiana Civil Law Treatise (2001)).

The determination of whether a natural obligation exists depends on the facts of each case. State v. Placke, 34,464 (La.App. 2 Cir. 5/9/01), 786 So.2d 889. The moral duty of the obligor is one that is “so strongly felt ... that his conscience will not be appeased unless he renders to another a certain performance.” Id at 895 |7(quoting Litvinoff, § 2.3). Further, the determination that a moral obligation constitutes a natural obligation is a finding of fact. Azaretta v. Manalla, 00-227 (La. App. 5 Cir. 7/25/00), 768 So.2d 179.

The standard of review for factual findings is well-established, as reiterated in Thomas, 639 So.2d at 381 (citations omitted):

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.
Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings 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. Credibility calls are the function and prerogative of the trial court.

Because the contract resulting from an obligor’s promise to perform his natural obligation is onerous, the requirements of form for a valid donation are not required. Litvinoff, § 2.23. However, “if the obligor intends to perform his natural obligation by making the kind of onerous contract for which a formality is exceptionally required, like the transfer of immovable property, for example, the resulting onerous contract must be made in that form.” Id. Our review of the record reveals nothing which would indicate that the form requirements of La.Civ.Code arts. 2329 and 2331, which are construed stricti juris, were complied with. See Rush, 115 So.3d 508.

Furthermore, the record does not support a finding that Ms. Deshotels clearly intended to be bound by the purported marriage agreement. Ms. Deshotels’ uncontested testimony was that she thought she was signing “a contract which you keep your property that you own and I keep my property ... But I did not | understand the fact that whatever he and I acquired, I did not understand that part.” Ms. Deshotels also testified that her understanding of “separate” applied to the property that each party had before the marriage and the property they obtained after they got married would be community property. There was no testimony concerning whether Ms. Deshotels felt she had a moral obligation to fulfill the purported matrimonial agreement. Neither was there testimony concerning whether Ms. Deshotels had performed or promised to perform any obligation pursuant to the agreement. Absent a clear indication of intent to be bound, Ms. Des-hotels’ testimony that she signed the agreement is insufficient to bind her. See Litvinoff, § 2.23 (“It is however necessary that the debtor’s words clearly evince an intention to bind himself. If he simply recognizes that a natural obligation exists without expressing an intent to bind himself to perform it he is not then civilly bound.”).

Accordingly, we find that the record does not support the trial court’s findings concerning whether Ms. Deshotels’ in-court admission that she signed the purported matrimonial agreement created a natural obligation. Thus, we reverse the trial court’s judgment signed on September 27, 2013, dismissing Ms. Deshotels’ petition for partition of community property and remand for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court signed on September 27, 2013, is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed to the appellees.

REVERSED AND REMANDED.

      . The record indicates that Dr. Deshotels died •on December 13, 2013, after the entry of judgment in this case. Ted Deshotels, Mary Deshotels Courville, Andre Deshotels, Anne Deshotels, Matthew R. Deshotels, Jamie Des-hotels Pucheu, Kimberly Deshotels, and Steve Deshotels were appointed as Dr. Deshotels’ successors.

      . Louisiana Civil Code Article 1833(A) provides that:
      An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.
      Additionally, La.Civ.Code art. 1836 addresses acts under private signature duly acknowledged, providing that:
      An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.
      An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.
      Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jody R. BALACH.
    No. 14-538.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Jody R. Balach.
    Asa A. Skinner, District Attorney— Thirtieth Judicial District, Terry W. Lam-bright, Assistant District Attorney, Lees-ville, LA, for Appellee State of Louisiana.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

hln this criminal case, Defendant, Jody R. Balach, pled guilty as charged to two counts of theft of a motor vehicle valued at more than $500.00 but less than $1,500.00, a violation of La.R.S. 14:67.26(0(2). As part of the plea agreement, the State dismissed two other pending charges against Defendant and agreed not to pursue habitual offender enhancement. Defendant was sentenced to serve five years at hard labor and pay a fíne of $1,000.00 plus court costs on each count to run concurrently. Defendant’s Motion to Reconsider Sentence was denied. He appeals, alleging excessive sentences. For the following reasons, we affirm Defendant’s sentences.

FACTUAL BACKGROUND

At Defendant’s guilty plea hearing, the State presented the following factual basis:

[Ojn or about September the 11th, 2012[,] in Vernon Parish, defendant committed the offense of Theft of a Motor Vehicle in that he intentionally took a 1999 Ford Taurus from a residence located at 7449 Kurthwood Road belonging to an individual by the name of Jessica Hill without her permission and with the intent of permanently disposing of that vehicle, which he did at Harvey’s Auto Parts. The value of the vehicle was approximately $1100. This took place in Vernon Parish. Count number two, same offense, on September 13, 2012[,] in Vernon Parish, he intentionally took a 1994 Dodge Truck from the same area, 7449 Kurthwood Road, Lees-ville, Louisiana, Vernon Parish, belonging to an individual by the name of Lloyd Wayne Henderson without that person’s knowledge or permission and disposed of that vehicle also at Harvey’s Auto Parts with the intent to permanently deprive the owner of that property, which was valued at approximately $800.

In his interview with Detective Misti Bryant of the Leesville Police Department, Defendant admitted that he sold a Taurus to Harvey’s Auto Parts (Harvey’s) for $268.96 on September 11, 2012, and that he sold the truck to Harvey’s for $352.60 on September 13, 2012.

\,¿ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent; however, we do find that the commitment order and court minutes of the guilty plea proceeding and sentencing require correction.

Defendant was charged with, pled guilty to, and was sentenced on two counts of theft of a motor vehicle valued at $500.00 or more but less than $1,500.00. However, the court minutes of the guilty plea proceeding, the sentencing, and the commitment order all reflect the convictions as theft over $1,500.00. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, we order the trial court to amend the minute entries and the commitment order to reflect the correct convictions. See State v. Nguyen, 10-483 (La.App. 3 Cir. 2/2/11), 55 So.3d 976, writ denied, 11-285 (La.6/17/11), 63 So.3d 1038.

ASSIGNMENT OF ERROR

Defendant contends his sentences are excessive, constitute cruel and unusual punishment, and violate federal and state constitutions. This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the |strial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

Defendant was exposed to a sentence of up to five years with or without hard labor and/or a fine of up to $2,000.00 for each of his convictions for theft of a motor vehicle. La.R.S. 14:67.26(C)(2). Thus, he received the maximum time and half the fine possible for each offense.

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[; however,] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). “[Mjaximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender.” State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982) (citing State v. Jones, 398 So.2d 1049 (La.1981)). |4“The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” La.Code Crim.P. art. 881.4(D).

Theft of a motor vehicle is not a crime of violence. See United States v. Charles, 301 F.3d 309 (5th Cir.2002). According to Detective Bryant’s investigative progress report, the victims in this case seemed interested only in obtaining the license plates from their respective vehicles; nothing in the record indicates they sought restitution or were concerned about losing the value of their vehicles.

We note that the trial court was in error in considering Defendant’s circumstances. At the plea hearing, Defendant testified he had eleven years of education and was employed as a moving contractor by Shap-koff Moving and Storage before his incarceration. He also stated he has epilepsy, that he had taken medication for that condition about two months before the hearing, and that he had “a doctor’s appointment lined up now for it” at the time of the plea hearing.

At the sentencing hearing, the trial court judge noted its consideration of the factors of La.Code Crim.P. art. 894.1 and commented that Defendant “apparently is in excellent health.” He stated that he had “no information about any kind of employment record” and noted that Defendant had a tenth grade education. The trial court’s statements are incorrect, and it relied on misinformation in crafting Defendant’s sentences. However, Defendant’s appeal only contends that his sentences are excessive, not that they are based on incorrect facts. Therefore, we do not consider those factual errors in our review of Defendant’s appeal. Uniform Rules-Courts of Appeal, Rule 1-3.

As correctly set forth by the trial court judge, Defendant “is considered as a third offender classification.” He noted that Defendant has á prior criminal history of “Possession of Marijuana with Intent and ordered to serve seven years, which |-,was suspended. That probation was ultimately

revoked. In 2008, he pled guilty to the offense of Attempted Possession of Al-prazolam, was given a two and one-half year sentence, and that probation was revoked.” While these charges were pending, Defendant was charged with two other offenses that allegedly occurred on April 30, 2018. The trial court judge stated the he did not believe Defendant was eligible for probation or “that he would respond favorably to any probationary treatment anyway,” and noted that Defendant was thirty-two years old at the time of sentencing, had four children, and had received treatment for his prior drug and alcohol abuse.

Defendant contends he received limited benefit from his plea bargain because the dismissed charges involved the same stolen items he was convicted of possessing in docket number 85196. However, we note that the State also waived its right to charge Defendant as a habitual offender. As a third felony offender, Defendant could have been sentenced to a term of forty months to ten years and/or a fine of $1,340.00 to $4,000.00. La.R.S. 15:529.1(A)(3)(a). Even though his five-year sentences exceed the minimum term he could have received as a multiple offender, he faced a potential exposure of a significantly longer term and a significantly higher fine. Defendant clearly received substantial benefit from his plea bargain.

We find the trial court did not abuse its broad sentencing discretion in imposing maximum sentences for theft of motor vehicles, even though lesser sentences may have been appropriate. Defendant had two prior felony convictions and did not successfully complete his probation in either matter. The trial judge, best able to particularize the sentences, believed that Defendant would not respond Lwell to probation and that lesser sentences would deprecate the severity of Defendant’s conduct. Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentences are affirmed, and we order the trial court to amend its court minutes of Defendant’s guilty plea, his sentencing, and his commitment order to accurately reflect his convictions.

AFFIRMED.

      . Defendant pled guilty to one of the charges (a felony consisting of possession of stolen things over $1,500.00) under docket number 85196 on the same date he pled guilty to the charges in this matter, and the other charge was dismissed.


author: PICKETT, Judge.

text:
    Earl J. THIBODEAUX v. CARROLL’S TOWING, et al.
    No. WCA 14-555.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Eric J. Waltner, Allen & Gooch, a Law Corporation, Lafayette, LA, for Defendant/Appellee, D.C. Rent to Own d/b/a Ev-erbody Rides.
    Melanie J. Forbes, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Carroll’s Towing.
    C. Roan Evans, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Earl J. Thibodeaux.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

|tA workers’ compensation claimant appeals the dismissal of his claims for indemnity and medical benefits and penalties and attorney fees. We affirm.

FACTS

In March 2012, Earl J. Thibodeaux was employed by Carroll’s Towing as a tow truck operator. He filed a Form 1008 Disputed Claim for Compensation, seeking indemnity and medical benefits from Carroll’s Towing for an injury to his right knee. He alleged that the injury occurred on March 21, 2012, when he was hooking a car to his tow truck. Mr. Thibodeaux amended his claim to add D.C. RENT TO OWN/D.C. RENT TO OWN LLC D/B/A EVERYBODY RIDES as a defendant after that entity filed an answer to his claim as the payor for Carroll’s Towing.

Trial was held October 21, 2013. Mr. Thibodeaux and two employees of Carroll’s Towing, Michelle Patín and Sandra Do-mingue, testified at trial. Mr. Thibodeaux submitted the deposition of Stephanie Lea and medical records of Lafayette General Medical Center (LGMC), Dr. Andre Via-tor/SWLA Center for Health Services (SWLA), and Dr. Michel Heard in support of his claim.

Mr. Thibodeaux testified that on the evening of March 21, 2012, he had to drive to from Lafayette to Alexandria and tow a Chevrolet Impala back to Lafayette. He described injuring his right knee as follows: ‘Whenever I went down to hook the chains on the driver’s side, I felt something stab me in the knee. I checked, there was nothing on the ground.” Mr. Thibodeaux explained that at the time, he did not believe the knee pain was anything serious, so he went home and slept. He further testified that when he awoke the next morning, his knee was |2swollen the size of a basketball and that he knew he needed to report the incident to Ms. Patín, his supervisor at Carroll’s Towing. According to Mr. Thibodeaux, he texted Ms. ■Patín that morning, and she called him after she got to the office. Mr. Thibo-deaux then testified that he explained to Ms. Patín how he injured his right knee the night before and that she told him it did not matter if he needed to go to the hospital.

Mr. Thibodeaux testified that he then went to the office where he showed his right knee to Ms. Patín and Ms. Domingue and explained to them exactly how he injured it the night before when preparing to hook the Chevrolet Impala to his truck. Mr. Thibodeaux stated that he was transported to LGMC by Stephanie Lea, another tow truck driver he was training.

Mr. Thibodeaux’s history of injury was recorded on March 22, 2012; by LGMC emergency room personnel as: “e/o right knee pain that started last night, denies injury or trauma. Swelling noted to right knee, pt ambulates with a limp.” Four days later on March 26, 2012, SWLA recorded Mr. Thibodeaux’s history as: “patient state [sic] that he [sic] here for right knee pain x6 days. No trauma, drives toe [sic] trucks, nothing out of ordinary. Knee swelling the next day.”

Ms. Patin testified that at the time Mr. Thibodeaux was injured she was employed as a manager at Carroll’s Towing, but she quit in early summer of 2012 to be home with her children. Ms. Patin further testified that the morning of March 22, 2012, Mr. Thibodeaux went into the office and stated that he needed to go to the doctor because he hurt his knee. Ms. Patin explained that she asked him what happened, and he replied, “he didn’t know.” She denied that Mr. Thibodeaux gave any details as to how he injured his knee and stated that he told her he injured his Isknee while kneeling on it. She further denied that Mr. Thibodeaux texted or called her that morning before arriving at the office and told her that he injured himself.

Ms. Patin next testified that later that morning the LGMC billing office contacted her and asked if Carroll’s Towing would be responsible for Mr. Thibodeaux’s medical treatment. Ms. Patin informed the caller that Carroll’s Towing would not be responsible because it was not work related. Ms. Patin then testified that the caller stated, “That’s what he said first, but he said that y’all were going to be paying for the bill.” Ms. Patin picked Mr. Thibodeaux up from the hospital and drove him home. She testified that during the ride, Mr. Thibo-deaux did not relate his knee injury to work.

Ms. Patin was questioned about other truck drivers employed by Carroll’s Towing at the time of Mr. Thibodeaux’s injury. She testified that at the time, Carroll’s Towing had two tow truck drivers other than Mr. Thibodeaux: Richard Wingate and Stephanie Lea. Ms. Patin explained that Ms. Lea was in training at that time but was fired because she was not quick enough at the work.

Ms. Domingue testified that she is a dispatcher, secretary, and office manager for Carroll’s Towing and had worked in the same capacities in March 2012. She related that on the morning of March 22, 2012, Mr. Thibodeaux went into the office and reported that he had injured himself. In response to his statement, Ms. Patin asked him how he injured himself, and he answered that he did not know. When asked directly, Ms. Domingue denied that Mr. Thibodeaux explained or related any information as to how he injured him. Ms. Domingue next testified that Mr. Thibo-deaux made arrangements for Stephanie Lea, another employee of Carroll’s Towing, to transport him to the hospital and that she did not see him again.

|4Ms. Lea testified in her deposition that on March 21, 2012, Mr. Thibodeaux was training her as a tow truck driver for Carroll’s Towing. She further testified that Mr. Thibodeaux called her that evening when he was returning to Lafayette after picking up the Chevrolet Impala in Alexandria and told her that he hurt himself or pulled a muscle “on the repo.” The next morning Ms. Lea reported to work and was in the office when Ms. Patin asked her to take Earl to the hospital. Ms. Lea explained that she asked, “For what?” and Ms. Patin stated that Earl hurt himself. Ms. Lea also testified that Mr. Thibodeaux asked Ms. Patin if workers’ compensation would pay for the hospital and that Ms. Patin stated she would have to ask the owner of Carroll’s Towing. According to Ms. Lea, during the discussion, she interjected that Mr. Thibodeaux got hurt at work and asked why workers’ compensation would not pay for the charges. Ms. Lea also testified that while in the office that morning before she took him to the hospital, she heard Mr. Thibodeaux tell Ms. Patín and/or Ms. Domingue that he hurt himself at work. Ms. Lea then related that she was laid off that day because there was no driver to train her.

After the trial, the workers’ compensation judge (WCJ) took the matter under advisement. In early November 2012, the WCJ issued an oral ruling on the record in which he concluded: (1) Mr. Thibodeaux was not a credible witness; (2) Ms. Patín and Ms. Domingue were credible witnesses; (3) Ms. Patín and Ms. Domingue’s testimonies and the medical records of LGMC and SWLA contradicted Mr. Thi-bodeaux’s claim that he injured his right knee on the evening of March 21, 2012, while in the course and scope of his work. Those findings led the WCJ to conclude that Mr. Thibodeaux had not carried his burden of proving that he was injured in the course and scope of his employment, and the WCJ ^dismissed Mr. Thibodeaux’s claims at his cost. A judgment dismissing Mr. Thibodeaux’s claims was signed, and he appealed that judgment.

ASSIGNMENTS OF ERROR

On appeal, Mr. Thibodeaux assigns the following four errors with the WCJ’s conclusions:

1. The trial court committed manifest error and was clearly wrong in not finding that claimant suffered a work accident on March 21, 2012.
2. The trial court committed manifest error and was clearly wrong in disregarding claimant’s presented medical evidence in the form of the MRI and Dr. Michael Heard’s report.
3. The trial court committed manifest error and was clearly wrong in disregarding the corroborative testimony of claimant’s co-worker, Stephanie Lea.
4. The trial court committed manifest error and was clearly wrong by not applying the correct evidentiary standard of preponderance of the evidence.

STANDARD OF REVIEW

In Marange v. Custom Metal Fabricators, Inc., 11-2678, p. 6 (La.7/2/12), 93 So.3d 1253, 1257-58 (per curiam) (citations omitted), the supreme court outlined a workers’ compensation claimant’s burden of proof for an unwitnessed accident as originally set forth in Bruno v. Harbert International, Inc., 593 So.2d 357 (La. 1992):

The employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment, if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. In deciding whether the plaintiff has discharged his or her burden of proof, the fact-finder should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the | (¡reliability of this testimony.” [Id. at 361.] The fact-finder’s determinations as to whether the worker’s testimony is credible, and whether the worker has discharged his or her burden of proof, are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

At the heart of Mr. Thibodeaux’s assignments of error is the WCJ’s failure to consider the deposition testimony of Ms. Lea and medical evidence in the form of an MRI of his right knee and the opinion of Dr. Michel Heard, an orthopedic surgeon. We address the assignments of error pertaining to these issues first.

MRI and Dr. Heard’s Opinion

Mr. Thibodeaux contends the WCJ erred in disregarding (1) the injury to his right knee that is shown on an MRI taken April 4, 2012, and (2) Dr. Heard’s opinion that the right knee injury occurred March 21, 2012, when Mr. Thibodeaux prepared to hook a car to his tow truck. This argument fails to consider two important facts. First, an MRI shows whether or not damage is present; it does not show when any damage it may reveal occurred or how it occurred. Second, Dr. Heard’s opinion was based on Mr. Thibodeaux’s history that he injured his knee March 21, 2012, as he prepared to hook a car to his tow truck. The history of injury documented in Mr. Thibodeaux’s SWLA and/or LGMC medical records contradict Dr. Heard’s opinion, and there is no evidence that Dr. Heard reviewed those medical records or was made aware of the discrepancies between the histories related to him by Mr. Thibodeaux and the histories Mr. Thibodeaux related to those health care providers. For these reasons, the WCJ did not err in failing to consider the MRI and/or Dr. Heard’s testimony as corroborating evidence of Mr. Thibodeaux’s claim.

| Stephanie Lea’s Deposition

Mr. Thibodeaux urges that the WCJ erred in not considering Ms. Lea’s deposition testimony that on the morning of March 22, 2012, she heard Mr. Thibo-deaux tell Ms. Patín and Ms. Domingue that he had injured his knee the evening before when preparing to hook the car to be towed to his truck. Only Mr. Thibo-deaux, Ms. Patín, and Ms. Domingue testified in court. The WCJ was in a position to judge who was credible and who was not credible. Moreover, the testimonies of Ms. Patín and Ms. Domingue were corroborated by Mr. Thibodeaux’s SWLA and LGMC medical records.

Mr. Thibodeaux’s cell phone records also corroborate Ms. Patin’s testimony that Mr. Thibodeaux did not call her and report that he was injured on March 21, 2012, while working as he claims. Mr. Thibo-deaux testified that he called Ms. Patín the evening of March 21/morning of March 22 and reported his injury to her. The telephone number he identified on his telephone bill as Ms. Patin’s, 347-2048, was not her number, but the number of Mr. Thibodeaux’s former fellow employee, Richard Wingate. Ms. Patín testified that her telephone number is 337-230-0674. Mr. Wingate was neither called to testify at trial nor was he deposed before trial. For these reasons, we do not find the WCJ’s failure to address Ms. Lea’s deposition testimony or find that her testimony corroborated Mr. Thibodeaux’s claims was clearly wrong.

WCJ’s Failure to Find a Work Accident Occurred

Thibodeaux had to prove his claim that he injured himself while in the course and scope of his work for Carroll’s Towing by a preponderance of the evi-eviBecause his alleged accident was unwitnessed, he could only carry his bur-burof proof if: “(1) no other evidence discredits or casts serious doubt upon | shis version of the incident;” and (2) his “testi-“testiis corroborated by the circumstances following the alleged incident.” Marange, 93 So.3d at 1257. Mr. Thibodeaux failed to satisfy both of these requirements. The testimonies of Ms. Patín and Ms. DoDo-and his SWLA and LGMC medical records cast serious doubt on Mr. Thibo-Thibo-version of the alleged incident, rather than corroborating his claim. Addi-Addiunder these circumstances, Ms. Lea’s deposition testimony was insufficient to outweigh the doubt cast on Mr. Thibo-deaux’s claim. Lastly, for the reasons discussed above, neither the MRI of his knee nor Dr. Heard’s opinion corroborate his claim.

Claims for Penalties and Interest

Mr. Thibodeaux asserted a claim for penalties and interest for the defendants’ failure to pay him indemnity and medical benefits. Having determined that the WCJ did not err in finding Mr. Thibo-deaux failed to satisfy his burden of proof, we need not address these claims.

DISPOSITION

The judgment of the WCJ is affirmed. All costs are assessed to Earl J. Thibo-deaux.

AFFIRMED.