author: DREW, J.

text:
    STATE of Louisiana, Appellee v. John SIMPKINS, Appellant.
    Nos. 44,197-KA, 44,198-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    Rehearing Denied June 18, 2009.

      Louisiana Appellate Project by Edward Kelly Bauman, Lake Charles, for Appellant.
    John Schuyler Marvin, District Attorney, for Appellee.
    John Michael Lawrence, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

LA unanimous jury convicted John Simpkins as charged of four crimes for which he was sentenced to life without benefits plus 40 years at hard labor:

• aggravated rape, life at hard labor, without benefits;
• aggravated incest, 20 years at hard labor;
• molestation of a juvenile, 10 years at hard labor; and
• sexual battery, 10 years at hard labor.

The trial court ordered that all sentences be served consecutively.

He now appeals his four convictions. We vacate the aggravated rape conviction, enter a verdict of guilty of forcible rape, and remand this matter for sentencing for that crime.

We affirm the other three convictions.

We vacate the sexual battery sentence and remand that matter for resentencing, directing the trial court to note that any sentence for sexual battery must be served without benefits.

We vacate the illegally lenient sentence relative to molestation of a juvenile under 13 and remand that matter for resentenc-ing, directing the trial court to note that the applicable law for the five months before the victim became 13 required at that time a sentencing range from 25 years at hard labor to life without benefit of parole, probation, or suspension of sentence. At least 25 years of the sentence must be served without benefits.

|2We further remand all four matters to the trial court, for the required advice as to sex offender registration requirements.

FACTS

Defendant moved with his wife, SDS, and their three children from Texas to Webster Parish in July or August of 2002. They previously had lived in Mississippi. The children in the home were:

• FRS, a girl (born May 11, 1990, thus already 12 years of age at the time of the move to Louisiana);
• JWS, a younger, mentally impaired boy; and
• SMS, a still-younger sister.

FRS is not the biological child of defendant; the other two children are. Defendant worked for a construction company; his wife was a waitress. Their trailer house was full of clutter, garbage, trash, and debris. The photos are worse than disturbing. All of them slept on the floor in the same bedroom.

This was not a normal household. Defendant bought lingerie for his wife and stepdaughter, and had them dance for him while wearing the garments. Several photos taken by the defendant show his wife and FRS wearing only underwear or lingerie. All three females in the home said that the defendant habitually walked around naked in front of them. He openly kept a collection of pornographic material and a variety of sex toys.

FRS testified that:

• the defendant began having sex with her when she was eight years old, while they were living in Mississippi;
1during the first act, the defendant choked her;
• from then on, the sex occurred regularly, at least once or twice a week;
• it usually happened when her father would come home early from work while her mother was away at work or was in the bathtub;
• the defendant made her have vaginal, anal, and oral sex with him many times;
• he continued to have sex with her after the family moved to Webster Parish;
• the intercourse occurred in Webster Parish before and after she turned 13; and
• he bought her prom dress and took her to her high school prom in 2007; and
• the defendant had sex with her on the day the prom photo was taken.

She related one chilling incident that occurred in Webster Parish:

One day we [FRS and the defendant] were in the living room and we were having intercourse and my sister walked in the front door and she said, “I’m telling mama!” and she ran back there and [the defendant] looked at me and he said, “If she tells, I will strangle her.” And so I had to run before she got to the bathroom and stop her from telling my mom.

FRS also expressed fear of the defendant, explaining:

[H]e’s the type of person that would just, if he was mad at you he’d come up and smack you or he’d pick up something and throw it at you or he’d threaten to kill you if it was just you alone and you made him mad or he’d be like, well, you’re going to get it or something like that ... [T]here was the threat about strangling my sister and then there was times whenever he threatened to take my brother out in the yard and beat him like a full-grown man. And then me, he’d threaten to go take me where nobody could find me and bury me alive or he’d threaten to beat me ... [H]e told me that if me or my mom ever tried to leave him that he would nail our feet to the floor and burn the house down around us.

|4The jury heard a recording of several angry and profanity-laden voice mail messages left by the defendant in which he threatened to come home and “kick everybody’s ass” unless they returned his call. The defendant’s wife claimed to be unaware of the sexual misconduct of her husband. FRS reported the defendant’s actions to relatives and authorities in the spring of 2007 because of her fear for the safety of her younger sister.

Other victims came forward after FRS reported her stepdad.

The three children spoke with Webster Parish Sheriffs deputies on March 30, 2007, and were interviewed a week later by a counselor from the Gingerbread House, a facility specializing in children’s issues. Both interviews were recorded on video.

Detective Teresa Rogers of the Webster Parish Sheriffs Office (“WPSO”) confirmed the accuracy of the Gingerbread House video recording, as well as the consistency of the statements. The trial court allowed the Gingerbread House interview to be published to the jury.

Also in the record are notations made by the female children on male and female anatomic drawings during the Gingerbread House interviews.

|fiIn her Gingerbread House interview, SMS (the youngest child, then in the second grade) told the interviewer that:

• she had once seen her father engaged in sexual conduct with FRS;
• she had seen the defendant put his “pencil,” or penis, into FRS’s “booty,” or anus, but that FRS told her not to tell their mother or the defendant would carry out his threat to kill the children;
• the defendant always walked around the house naked;
• her father exposed his penis to her during a recent camping trip, saying, “Take it, take it, take it,” but she hid under a pillow and nothing further occurred;
• he once put his finger “in her private” when they were in the swimming pool;
• she had once seen her father “on top of’ GB while “his pencil was out” and that GB was saying, “No, no, no, no” as he tried to undress her; and
• she was present when the defendant was in the bedroom with GB, when her dad and GB were both naked and “wrestling.”

In her Gingerbread House interview, FRS related that:

• she was compelled to submit to repeated acts of vaginal, anal, and oral sex by defendant, beginning as early as age eight;
• defendant told her that “if I was to tell anybody, that he’d kill me”;
• her sister walked in on them in the fall of 2006; and
• that the defendant’s open household nudity was “an everyday thing.”

JWS, brother of the victim, was reluctant to speak but said that he had heard sexual noises during an encounter between FRS and his father.

Alleging inconsistencies between the videos, defendant offered the WPSO tapes into evidence. The court opted to defer ruling on that issue Runtil a later time, without objection. No proffer was ever made, and the WPSO tapes were never again offered into evidence.

Department of Social Services employee Ursulynn Hamilton testified that she had been at the Gingerbread House for the children’s interviews and also had interviewed the children separately. She testified that the children’s statements had been consistent but admitted that some statements made by FRS had differed in details, such as the frequency of abuse.

A medical doctor, Dr. Jennifer Rodriguez, testified that she had performed a sexual abuse examination of FRS on April 5, 2007. The doctor reported that the examination was normal; no physical evidence was found proving or disproving whether the child had engaged in intercourse.

The defendant chose to testify, his testimony being that:

• he denied routinely being unclothed at home, other than possibly one occasion when he entered the home after removing his dirty work clothes;
• he very seldom left work early;
• he was very strict on FRS and would not allow her to date;
• she did not like his rules;
• he never had sex with FRS or GB; and
• he never had any inappropriate contact with RS.

The jury apparently did not believe him. No one called JWS or SMS to the stand at trial.

On rebuttal, defendant’s work supervisor testified that the defendant did in fact leave work early from two to four times per week.

|7The jury returned unanimous verdicts of guilty as charged on all four counts. The defendant was sentenced as noted before. The trial court failed to order sex offender registration. A motion for reconsideration of sentence was denied.

DISCUSSION

A. Sufficiency

Our law on sufficiency is well settled.

|gThe defendant recites a variety of alleged inconsistencies in the witnesses’ testimony, asserting that the jury should not have believed the children under the circumstances. We disagree. The jury heard any variations in the children’s accounts of these offenses and rationally chose to believe the children.

1. Aggravated Rape

The court incorrectly charged the jury with the law as to aggravated rape, without objection from the parties.

The defective portion of the charge stated, with emphasis added:

Aggravated rape is a rape committed where anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because the victim is under the age of thirteen years[.]
Thus, in order to convict the defendant of aggravated rape, you must find:
(1) that the defendant committed an act of sexual intercourse with the victim; and
(2) that the victim was a person under the age of thirteen.

The charge lacked any other instruction regarding aggravated rape.

|9We regretfully find, sua sponte, that the aggravated rape charge was not proven. Prior to August 15, 2003, La. R.S. 14:42 provided, in pertinent part, with emphasis added:

A. Aggravated rape is a rape ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* * =1=
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(4) When the victim is under the age of twelve years.

The jury heard no argument nor received any instructions about La. R.S. 14:42(A)(2). Instead, the jury heard only about La. R.S. 14:42(A)(4), the type of aggravated rape based upon the age of the child victim. The court incorrectly instructed the jury that they could convict if it was proven that FRS was under 13 when raped.

FRS had turned 13 before August 15, 2003, the effective date of the statutory amendment expanding the applicability of aggravated rape to victims who are under 13 years old at the time of the crime. See State v. Kennedy, 42,850 (La.App. 2d Cir.1/9/08), 974 So.2d 203; State v. Rideout, 42,689 (La.App. 2d Cir.10/31/07), 968 So.2d 1210. It is axiomatic that a defendant must be tried under the law in effect at the time of the crime. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

In the original indictment, the state charged the defendant with the aggravated rape of FRS from May 11, 1998, through May 11, 2002; a |inhandwritten amendment changed the latter date to May 10, 2003. The defendant did not move his family to Webster Parish until the summer of 2002, at which time FRS (DOB 5/11/90) was already 12 years old. Previous to late summer of 2002, FRS had never lived in Louisiana. The rapes continued after the family moved to Webster Parish, up to the spring of 2007, when she reported the crimes.

Consider this chronology:

(a) 2002 — the age-related law in Louisiana, as to the aggravated rape of a young person, was defined as occurring when the child was under 12 years of age;
(b) May 11, 2002 — the rape victim turned 12;
(c) Summer of 2002 — the family (including the predator and the rape victim) moved to Louisiana;
(d) May 11, 2003 — the rape victim turned 13: and
(e) August 15, 2003 — the law of Louisiana was amended to reflect that one type of aggravated rape occurs when a rape victim is under 13 years of age.

In short, the victim was already 12 when she first moved from Texas to Louisiana. She turned 13 three months before the aggravated rape statute was amended to protect a class of victims under the age of 13.

Even when viewed in the light most favorable to the state, the evidence is insufficient to show that the family ever lived in Louisiana prior to FRS’s 12th birthday; the evidence affirmatively shows just the opposite. Louisiana has no jurisdiction to punish a defendant for criminal acts occurring entirely in another state; only when an act or element occurred in | uthis state does Louisiana have criminal jurisdiction. See La. Const. art. 1, § 16; La. C. Cr. P. arts. 16, 611.

The defendant did not raise this particular problem below and has not specifically raised it in this court. No motion to quash the indictment for want of jurisdiction was filed. The contemporaneous objection rule in La. C. Cr. P. art. 841 and the rule governing venue objections, La. C. Cr. P. art. 615, would normally militate against consideration of this issue on direct review. This issue is before us, however, because it is a critical error in the proceedings and because insufficiency of the evidence has been claimed. Consequently, as this court stated in State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582, with citations omitted:

Generally, a party may not assign as error a complaint to a jury charge in the absence of a contemporaneous objection. An invalid instruction on the elements of an offense is not a structural error and is therefore subject to harmless error review and only warrants reversal when the defendant is actually prejudiced by the error. An invalid instruction on the elements of an offense is harmless if the evidence is otherwise sufficient to support the jury’s verdict and the jury would have reached the same result if it had never heard the erroneous instruction. The determination is based upon whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

The error is not harmless; far from it. To allow the conviction for aggravated rape would effectively condone an ex post facto law.

There was no instruction as to any alternative theory of guilt for the crime of aggravated rape, particularly none as to La. R.S. 14:42(A)(2), a rape committed when the victim is prevented from resisting the act when the | ^offender threatens great and immediate bodily harm, accompanied by apparent power of execution. The evidence appears to have been sufficient to convict the defendant of aggravated rape under this alternative subsection, and we recognize that a jury is not constitutionally required to agree upon a single theory to convict a defendant where it is instructed as to alternative theories. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), rehearing denied; State v. Allen, 41,548 (La.App. 2d Cir.11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La.12/7/07), 969 So.2d 619. This jury, however, was given one theory, and it was not proven. Consequently, we lack the option of affirming this conviction under the “threats of great bodily harm” type of La. R.S. 14:42(A)(2), since this issue was never placed before the jury. As noted in State v. Johnson, 541 So.2d 818, 827 (La.1989), a prosecution for first degree murder:

[Wjhere the evidence is insufficient to establish first degree murder under the only definition of that crime which was argued or provided to the jury, the conviction cannot be upheld based on speculation about what verdict the jury would have returned if it had been informed of a different statutory basis for concluding that the defendant’s crime constituted first degree murder[.]
In every homicide case, the prosecutor is free to attempt to establish that the defendant’s conduct satisfied any or all of the definitions of first degree murder contained in La. R.S. 14:30(A)(l)-(5). Here the prosecution chose to seek a first degree murder conviction on this charge based only on an aggravated kidnapping theory, one which was wholly unsupported by the evidence. When the prosecution chooses to limit its case in this fashion, a defendant cannot be convicted of first degree murder based on assumptions about what the jury would have found if the prosecution had presented its case differently.

113We have the same situation here. The errant jury instruction presents us with a fatal sufficiency problem, which bars the retrial of the defendant under any version of La. R.S. 14:42.

The state was not required to limit its case only to the age-based section of aggravated rape. Although the error may have been common to the parties and the court, no erroneous ruling of the court prevented the state from proceeding under alternative theories of aggravated rape, which distinguishes this situation from that in State v. Morris, 429 So.2d 111 (La.1983) (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)), where the Louisiana Supreme Court allowed a retrial because of a jury instruction error, to which the state had objected.

It is traditional for appellate courts to address the sufficiency of the evidence before addressing trial errors. Here, the trial error and sufficiency problem are intertwined and inseparable. Accordingly, the trial evidence does not support the conviction of the charge of aggravated rape, under the age-related versions of aggravated rape as it existed prior to the 13th birthday of FRS.

The proven heinous and deplorable acts committed upon FRS do allow us the option of entering a judgment of conviction for a lesser and included offense. La. C. Cr. P. art. 821 provides, in part:

E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

|14F orcible rape is a lesser included offense to a charge of aggravated rape. La. C. Cr. P. art. 814(A)(8). The crime is defined, in pertinent part, in La. R.S. 14:42.1:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent •the rape.

The jury was properly charged as to the crime of forcible rape, and that responsive crime was clearly proven beyond a reasonable doubt.

FRS testified at length about the defendant’s repeated threats to her -life and the threat to the life of her sister in conjunction with the defendant’s incessant demands for intercourse. The jury clearly found FRS to be a credible witness, and her testimony is ample to support a conviction for forcible rape for the many depraved acts practiced upon her in Louisiana, starting in the summer of 2002.

2. Aggravated Incest

The testimony of FRS alone is sufficient to support the conviction for aggravated incest. La. R.S. 14:78.1 provides, in part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following ... step ... relatives: child[.]
B. The following are prohibited acts under this Section:
(1) Sexual intercourse ... indecent behavior[.]

| ir,The acts of sexual intercourse between stepfather and stepdaughter went on for about eight years, over four years after the family moved to Louisiana, ending in the early spring of 2007 when FRS was 16. Defendant knew they were kin.

3. Molestation

Defendant was also convicted of molestation of a juvenile under the age of 13, GB, a child born on January 13, 1994. She turned 13 on January 13, 2007. At trial in June of 2008, she was only 14 years old.

Among other indignities, GB described several instances before she was 13 years old when the defendant grabbed her and put his fingers inside her crotch. She said he raped her six or seven times. SMS, the younger sister, who was also a victim of her father, testified corroboratively as to the defendant sexually forcing himself upon GB.

Defendant lived in Louisiana about 4jé years before GB turned 13. The basic crime of molestation of a juvenile, during this entire 4!/2-year period, was defined in La. R.S. 14:81.2(A) as follows:

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

| if,First, molestation requires proof of the “use of force.” In State v. LeBlanc, 506 So.2d 1197 (La.1987), the supreme court stated:

Some minimum degree of force or physical effort is required to commit the lewd act which is an essential element of the crime of indecent behavior with a juvenile. When the more serious crime of molestation of a juvenile was enacted with the additional essential element of “use of force”, the Legislature must have contemplated a requirement of additional aggravating conduct consisting of some added element of force, above and beyond that force or effort necessary to commit the lewd act upon the person.
A genuine construction of La. R.S. 14:81.2 as part of the overall criminal law pertaining to lewd acts with juveniles therefore leads to the conclusion that the Legislature contemplated a requirement of something more than the mere exertion of physical effort necessary to commit the lewd act. Properly construed, the “use of force” element refers to the forcible means of overcoming the will or the resistance of the victim, and this additional essential element requires a use of force in addition to any mere touching or minimum effort exerted in performing the lewd act.

The child testified that the defendant “grabbed” her and touched her genitals. The prom photo of the defendant reveals a large and stocky adult. GB was under 13 at the times she was victimized. The jury was reasonable in concluding that the defendant used force to complete the crime.

The second crucial issue is whether any instances of molestation were proven during the time frame starting on August 15, 2006. and running through January 12, 2007.

| ,7The wording of Subsection E of the molestation statute, during that five-month time frame, read as follows:

E. (1) Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years, shall be imprisoned at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

We feel that the application of the harsher sentence for the molestation of his child is justified by the time frame proven at trial:

• GB’s date of birth is January 13, 1994;
• The first molestation occurred at the barbeque, when she was “about 11 years old,” which would have been August of 2005;
• The defendant himself testified that the barbeque was in August (no year was given);
• GB testified that she quit going over there “for about a year” after this started happening;
• The year of absence was “in 2005 or 2006”;
• GB was raped by him “six or seven times” and apparently touched inappropriately other times, sometimes when she went to the bathroom;
• August 15, 2006, was the effective date of Subsection E of the molestation statute, which increased the possible sentence for molestation of a child under 13 to a minimum sentence of 25 years at hard labor, up to a life sentence, with at least 25 years required to be served without benefits;
• GB turned 13 on January 13, 2007; the defendant therefore had almost five months of “25 to life” exposure for molesting GB (August 15, 2006-Janu-ary 12, 2007);
• the date of the last rape was in February of 2007, according to GB, the last time she had stayed overnight at the defendant’s trailer house;
• the defendant’s wife confirmed that GB last stayed over about a week before the defendant left on a trip in March 2007;
|18* it defies all logic that this repulsive pattern of lewd and lascivious conduct towards GB would occur before and after this five-month window, but abruptly cease, cold turkey, during this window;
• WPSO became involved in late March 2007 when GB was 13; and
• GB was 14 when she testified at trial.

Defendant was sentenced to serve 10 years at hard labor. We vacate the illegally lenient sentence and remand this matter for resentencing.

4. Sexual Battery

Defendant was also convicted of sexual battery against RS (DOB 3/2/92). She became 13 on March 2, 2005.

At the time of this crime, sexual battery was defined in La. R.S. 14:43.1, in pertinent part, as follows:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]

Touching through clothing is sufficient to complete the touching element of the crime. State in Interest of D.M., 1997-0628 (La.App. 1st Cir.11/7/97), 704 So.2d 786; State v. Bouton, 615 So.2d 23 (La.App. 3d Cir.1993).

The defendant made RS sit on his lap. He then put his hand on “the part between my legs.” This is sufficient to convict the defendant of sexual battery.

11flThe charge erroneously required the jury to find the victim to be under the age of 13 when victimized. The enhanced penalty provision of the sexual battery statute relative to sexual battery victims under the age of 13, La. R.S. 14:43.1(E), did not become effective until 17 months after RS had already turned 13. Still, the jury found that the victim was under 13, which is also under 17.

Defendant was sentenced to serve 10 years at hard labor for the sexual battery offense. This crime requires that any sentence be served without benefit of suspension of sentence, probation, and parole. Accordingly, we vacate the previous sentence and remand this matter for resen-tencing.

B. Video(s) of WPSO Interviews

Defendant urges that his right to confront the witnesses against him was violated by the trial court’s refusal to admit into evidence the video recordings of the children taken at their March 30, 2007, interviews at the WPSO. We find that the trial court acted within its discretion to defer the defendant’s request to enter the videos into evidence, as per La. C. Cr. P. art. 765, which provides, in part:

The normal order of trial shall be as follows:

(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument[.]

|2n’“A defendant may offer material into evidence ... after the state has presented its case in chief.” See State v. Edwards, 420 So.2d 663 (La.1982).

The record reflects that the defendant did not object to the prosecutor’s questions to Detective Rogers about the consistency of the children’s prior statements and the defendant chose to question the witness about her recollections of the children’s statements. The statements in question were made by other witnesses, not by the detective, and the record reflects that the child witnesses were available to testify. Only one of those witnesses — FRS—actually testified, and the defendant was allowed to exercise his right of confrontation and cross-examination with her on the stand.

The defendant did not recall Detective Rogers and he did not call his two children by blood, during any of which testimony the defendant could have offered the WPSO videos into evidence. Further, the record does not reflect that the defendant objected to the deferral of his motion to introduce the video evidence, and these videos were not proffered into the record. With no timely objection to the court’s deferring a ruling on this issue, and without any further attempt to place the videos into evidence, the defendant effectively waived his right to pursue any error regarding the videos. La. C. Cr. P. art. 841.

C. Ineffectiveness

Ineffective claims are better raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal, since PCR |21 creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,-394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

In the instant case, the matters complained of are arguably part of a valid trial strategy by counsel to raise the issue of the children’s credibility but avoid any prejudicial effect of repeated viewing of their out-of-court statements. Defendant may have felt that their additional testimony might have negatively swayed the jury. These choices are not, on their face, evidence of ineffective assistance of counsel at trial.

ERRORS PATENT

The defendant was not ordered to register as a sex offender per La. R.S. 15:540, et seq.; the trial court is directed to correct this omission at remand.

CONCLUSION

We vacate the conviction of aggravated rape, entering in its place a conviction for forcible rape, and remand the case for sentencing for that crime.

We affirm the other three convictions.

We vacate' the sexual battery sentence and remand for resentencing, noting that all of the sentence must be served without benefits.

|22We vacate the molestation sentence and remand for resentencing, noting that the appropriate sentence for the crime of conviction requires that the defendant must serve at hard labor from 25 years to life.

All four matters are remanded for the administration of the appropriate instructions as to sex offender registration requirements.

DECREE

CONVICTION OF AGGRAVATED RAPE IS VACATED. CONVICTION OF FORCIBLE RAPE IS ENTERED AND THE MATTER IS REMANDED FOR SENTENCING ON THE AMENDED CONVICTION.

CONVICTION AND SENTENCE FOR AGGRAVATED INCEST ARE AFFIRMED.

CONVICTION FOR MOLESTATION OF A JUVENILE IS AFFIRMED. THE SENTENCE IS VACATED AND THE MATTER IS REMANDED FOR RESENTENCING.

THE SEXUAL BATTERY CONVICTION IS AFFIRMED. THE SENTENCE IS VACATED AND THE MATTER IS REMANDED FOR RE-SENTENCING.

ALL FOUR MATTERS ARE REMANDED FOR THE TRIAL COURT TO ADVISE THE DEFENDANT AS TO SEX OFFENDER REGISTRATION REQUIREMENTS.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW and LOLLEY, JJ.

| ]Rehearing denied.

      . The indictment, as amended, charged the defendant with aggravated rape during the five-year period running from the dates of May 11, 1998, through May 10, 2003, the date before the rape victim became 13.

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

      . The record contains a prom photo of a dressed-up defendant and his stepdaughter, FRS.

      . During this same time frame, two other young girls alleged wrongdoing by the defendant: GB, a female born on January 13, 1994, and RS, a female bom on March 2, 1992. Both said that the defendant had engaged in sexual misconduct with them. These girls had attended a barbeque held by the defendant at his home in Webster Parish, although neither was certain of the exact date of the event.
      RS said that she was "maybe” 12 years old at the barbeque, and as she walked past the defendant, he grabbed her between her legs, pulled her to him, and made her sit on his lap. At a swimming party, he untied her bathing suit top, causing it to fall off.
      GB said that she was about 11 years old at the time of the barbeque, at which the defendant grabbed her and put his hand "under my privates and he would move his fingers.” At other times he would "touch me on my be-tweens” and put his fingers "in my be-tweens.” She said this occurred before she was 13 years old. She described other instances when he had raped her during overnight visits at the defendant’s trailer home.

      . The first to the WPSO deputies; the second at the Gingerbread House.

      . Prior to trial, the state provided notice to the defendant of its intent to offer evidence of other crimes.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97), 701 So.2d 1333.
      The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,-981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. This is equally applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra.

      . This mistake was easy to make. By time of trial, the relevant age bracket for aggravated rape had been “under 13“ for over five years. The peculiar timing of the events in this case, years before the prosecution began, precipitated the erroneous charge to the jury.

      . The bill of information charging defendant with aggravated incest with FRS lists the dates of the offenses as May 11, 2003, through March 29, 2007, so the dates of the offenses do not overlap.

      . For an extended discussion of the prohibition against ex post facto laws, see State ex rel. Olivieri v. State, 2000-0172, p. 11 (La.2/21/01), 779 So.2d 735, 742, cert. denied.

      . Neither in argument, nor as instructed by the trial court.

      . See State v. Langley, 2006-1041 (La.5/22/07), 958 So.2d 1160, cert. denied.

      . Incest (La. R.S. 14:78) requires consanguinity (blood kinship) between predator and victim: aggravated incest (La. R.S. 14:78.1) does not.

      . A man in his early 40s, resplendent in his high school prom attire.

      . This is the date when the increased penalty provision (25 years to life) for molestation of a child under 13 became effective, as Subsection E of the statute. 2006 La. Acts Nos. 103 and 325.

      .GB turned 13 on January 13, 2007.

      . The sexual battery charge to the jury also requires proof of the specific intent to commit the crime. This appears to be a greater burden than is legally required. La. R.S. 14:11. But compare our dicta in State v. D.M., 958 So.2d 77, 84 (La.App. 2d Cir.5/9/07).


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Patricia Ann GREEN, Plaintiff-Appellee v. Cynthia CLAVILLE and Safeway Insurance Company of Louisiana, Defendants-Appellants.
    No. 44,249-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    Tracy L. Oakley, for Appellants.
    Rice & Kendig by J. Marshall Rice, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

11 This vehicular accident occurred on May 4, 2006, at approximately 7:55 a.m. at the intersection of Milam Street and Pierre Avenue in Shreveport, Louisiana. Plaintiff, Patricia Green, was driving a 1993 Chevrolet Astro east on Milam Street, which is a two-lane street with a turn lane at its intersection with Pierre Avenue. Plaintiff was completing a left-hand turn onto Pierre Avenue when defendant, Cynthia Claville, who was driving a 1992 Honda Accord west on Milam, hit the rear, passenger side of plaintiffs vehicle. The damage was behind the rear wheel and to the fender and bumper. Both vehicles had a guest passenger; however, neither testified at trial.

Plaintiff filed suit against defendant and Safeway Insurance Company, in solido. Trial was held on April 17, 2008. Following the testimony of five witnesses, the trial court assessed defendant with 75% fault and plaintiff with 25% fault. The trial court stated that its finding was primarily based upon the testimony of Rhonda Roberson. Ms. Roberson, who was stopped at the southbound red light on Pierre Avenue, witnessed the accident and testified that defendant was traveling very fast. Defendant appealed. We affirm.

Discussion

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had |2it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840 (La.1989). A factfinder’s determination regarding the credibility of witnesses is afforded great deference since only it can be aware of the variations in demeanor and tone of voice that bear heavily on its evaluation. Id. It is within the trial court’s wide discretion to credit the testimony of one of two or more witnesses. Touchard, supra.

After a thorough review of the record in its entirety, we cannot conclude that the trial court was manifestly erroneous or clearly wrong in its allocation of fault. The trial court heard both plaintiff and Ms. Roberson testify that defendant was driving in a fast manner, while only defendant testified that she was not speeding. Defendant’s witness, Robert Bryant, was northbound on Pierre Avenue and saw the accident; however, he was looking at plaintiffs vehicle and not defendant’s. The trial court also considered defendant’s testimony that she often drove through the intersection where the accident occurred and knew it was a dangerous intersection.

. Defendant argues that the trial court erred by not properly applying the law applicable to a left turning motorist. This argument, however, is without merit. The trial court discussed the case law pertaining to the presumption of negligence on the left turning motorist involved in a motor vehicle accident. Yet, after considering the law regarding left turning motorists, the trial court determined that the predominant factor in the accident was defendant’s speed. Since a left turning motorist may be found |3free of negligence when the collision results because of an oncoming vehicle’s excessive speed, the trial court was not clearly wrong in its application of the law regarding left turning motorists. See Severson v. St. Catherine of Sienna Catholic Church, 97-1026 (La.App. 5th Cir.02/11/98), 707 So.2d 1026, writ denied, 98-0653 (La.04/24/98), 717 So.2d 1178.

Conclusion

For the reasons stated herein, the allocation of fault as set forth by the trial court is hereby affirmed. Costs are assessed to defendant.


author: GASKINS, J.

text:
    Kristi KOENIG, Plaintiff-Appellee v. CHRISTUS SCHUMPERT HEALTH SYSTEM, Defendant-Appellant.
    No. 44,244-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Mayer, Smith & Roberts, L.L.P. by John C. Turnage, Shreveport, for Appellant.
    Fischer & Associates by Donald Hathaway, Timothy R. Fischer, Mark K. Manno, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

|tIn this workers’ compensation case, the hospital/employer appeals from a judgment ordering it to pay wage benefits and medical expenses for surgery, plus penalties and attorney fees, to an employee who allegedly aggravated her preexisting shoulder condition in a work-related accident. We amend the award of penalties and attorney fees. In all other respects, the judgment is affirmed.

FACTS

The claimant, Kristi Koenig, was employed by Christus Schumpert for 22 years. On August 7, 2006, while working as a diagnostic sonographer or ultrasound technologist in the radiology department, she was performing an abdominal ultrasound on a patient when she extended her right arm over the patient’s body. While scanning, she allegedly felt and heard a pop in her right arm and was unable to move her arm. She immediately reported the incident to a radiology nurse, Vickie Mayence, who escorted her to the ER for treatment.

In November 2006, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). She asserted that she had not received any wage benefits but was entitled to them, as well as all reasonable and necessary medical treatments, penalties and attorney fees.

In January 2007, the employer filed an answer in which it denied the occurrence of an on-the-job injury. It contended that the claimant was injured prior to August 7, 2006, and that the prior injury was not job-related. It also maintained that her prior injury was not aggravated by a work-related |2injury. The employer further alleged that prior to her alleged work-related injury, the claimant was already planning to have the surgery she was now requesting under workers’ compensation. In July 2007, the employer filed an amended answer in which it asserted forfeiture of the claimant’s right to benefits due to false statements under La. R.S. 23:1208.

In August 2007, the claimant filed her first amended disputed claim for compensation with OWC, in which she asserted an occupational disease. In response, the employer filed a general denial.

Trial was held on December 3, 2007. The claimant testified as to the circumstances surrounding her August 2006 work-related accident. She admitted that she had been suffering from shoulder problems prior to this incident. She stated that the onset of these problems was gradual and she believed it was related to the repetition in her work. In July 2006, her orthopedic surgeon, Dr. John Mays, found a tear in her rotator cuff; he wanted to schedule surgery. She testified that when she told her supervisors about the proposed surgery, they asked her to delay it as long as possible, and she agreed. When she saw Dr. Mays after her work-related accident, he refused to let her work without another MRI. Based on the MRI results, he felt she had aggravated her prior problem. After the accident, her shoulder pain was much worse. The claimant explained that when she tried to have her scheduled shoulder surgery moved up, her private insurer refused to pay for it on the basis that her injury was work related. She testified that she has not worked since the incident and that she retired from Schumpert with a severance package in April 2007.

|sOn cross-examination, the claimant testified about prior injuries. According to the claimant, she was injured many times while working in the radiology department because she had to move heavy patients by herself. As required by her job, she reported all of these injuries, including muscle strains; she had a total of 11. These included being hospitalized in traction for a week 10 to 20 years ago. She was also questioned about several Lortab prescriptions given to her by her doctors for back and shoulder pain shortly before the instant injury.

Both sides admitted medical records of the claimant into evidence. The claimant also introduced several depositions, including those of Dr. Mays, Ms. Mayence and Dr. Shane Barton, an orthopedic surgeon who gave a second opinion. Dr. Mays testified that he first saw the claimant in July 2006; she complained of right shoulder pain that had been ongoing for years. He ordered an MRI, which showed a partial tear of the rotator cuff tendon; he recommended surgery. He also saw her the day after her work incident; she had greatly reduced range of motion from her prior visits. He ordered an MRI with contrast; it showed a rotator cuff tear tendinous with a flap tear and impingement. Dr. Mays found her history and complaints credible, and he concluded that it was more likely than not that she suffered an aggravation of a preexisting condition. He opined that this would require more extensive surgery to repair.

Dr. Barton testified that he too found the claimant’s history reliable and consistent with the injury he diagnosed. Based upon his exam and the patient’s history, he believed that she suffered an aggravation of her | longstanding shoulder condition. He agreed that she required surgery. Both doctors testified that since one MRI was with contrast and the other without, they could not compare them and determine if they showed the same tear.

In her deposition, Ms. Mayence testified that she was in the x-ray holding room when the claimant entered crying. Her arm was hanging by her side and she appeared to be in great pain. After dealing with the patient the claimant had been scanning, Ms. Mayence accompanied the claimant to the ER.

The claimant also introduced the deposition of Joanne Cannatella, who worked for the third-party administrator of the employer’s workers compensation program. She testified that she felt the claimant’s injury was not compensable because she had previously had this condition and the surgery recommended was the same one she already had scheduled.

Thomas Postles, the clinical supervisor at the radiology department, testified for the employer. He recounted the claimant’s work history and her failure to pass her exam to become a registered ultrasound technician. However, he admitted that being registered was not a mandatory requirement of her job. According to him, he became aware in the summer of 2006 that she was going to have rotator cuff surgery; however, he testified that she wanted to delay the surgery until August 2006 to build up her sick leave. He also stated that he was informed of the claimant’s August 2006 injury by Ms. Mayence on the day it occurred. He described Ms. Mayence as a reliable registered nurse with more than 20 years of experience; she informed him that she did not know what happened but that the claimant |fiapparently injured her shoulder while performing a procedure on a patient and appeared to be in severe pain.

Kathleen Paine, the human resources coordinator for Schumpert, also testified about the claimant’s HR records. Both Mr. Postles and Ms. Paine testified that the claimant resigned from her employment with the hospital.

In a judgment rendered in May 2008, the workers’ compensation judge (WCJ) found that the claimant suffered a work-related injury while in the course and scope of her employment. Specifically, while working as a diagnostic sonographer, she was performing an ultrasound on a patient when she felt a pop in her shoulder which was ultimately diagnosed as a rota-tor cuff tear. The WCJ found that the claimant was credible and that her testimony was consistent with the objective medical evidence. Given the facts that the claimant had worked for the employer for 22 years (the last six years in her current position) and that her job involved awkward manipulations of the patient to obtain optimal images for the ultrasound machine, the WCJ concluded that her current shoulder condition was work related. He also found that she was unable to perform her old job due to the injury. As a result, she was awarded temporary total disability (TTD) benefits of $454 per week retroactive to the date of injury. Also finding that the claimant’s preexisting shoulder condition was exacerbated by the work injury, the WCJ approved the surgery recommended by Dr. Mays and Dr. Barton.

The WCJ also found that the employer was arbitrary and capricious in failing to start wage benefits and failing to approve the recommended surgery. He noted that the employer “turned a blind eye” to the medical [¿reports indicating an injury or an aggravation. Penalties of $8,000 were awarded, as were attorney fees of $15,975. The claimant’s attorney was also granted $3,667.04 for out-of-pocket litigation expenses.

The employer took a suspensive appeal.

OCCURRENCE OF ACCIDENT AND INJURY

Law

An employee is entitled to workers’ compensation benefits if he received personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An “accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). In a workers’ compensation action, the plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. Thomason v. Wal-Mart Stores, Inc., 37,520 (La.App. 2d Cir.9/4/03), 852 So.2d 1283, unit denied, 2003-2774 (La.12/19/03), 861 So.2d 573.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Hatfield v. Amethyst Construction, Inc., 43,588 (La.App. 2d Cir.12/3/08), 999 So.2d 133, writ denied, 2008-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is | presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Player v. International Paper Company, 39,254 (La.App. 2d Cir.1/28/05), 892 So.2d 781. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Brien v. Leon Angel Constructors, Inc., 42,904 (La.App. 2d Cir.3/12/08), 978 So.2d 576, writ denied, 2008-0802 (La.6/6/08), 983 So.2d 919.

When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible | Rviews of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

Discussion

The employer contends that the claimant’s condition — a torn rotator cuff— was the same after the incident as it was before and thus she did not suffer an aggravation of her already existing condition. It emphasizes her history of shoulder problems prior to the August 2006 incident and the fact that she was already scheduled for shoulder surgery. It also accuses the claimant of being drug seeking and using the August 2006 incident as a pretext to avoid going back to work because she did not want to undergo the process to become a certified sonographer. The employer argues that the great weight of the medical evidence demonstrates that there was no aggravation of a preexisting injury.

The claimant argues that both her treating physician, Dr. Mays, and the employer’s second medical opinion, Dr. Barton, agreed that she suffered an aggravation of a preexisting condition. Furthermore, the claimant testified as to her increased pain and decreased range of motion after the accident. The claimant contends that the WCJ’s decision is supported by the medical evidence and not manifestly erroneous.

Our review of the evidence demonstrates that while the claimant had a preexisting condition for which she required surgery, she was still able to work before August 7, 2006. The claimant — whom the WCJ specifically found to be credible — testified without contradiction that while performing her work as a sonographer, she suddenly experienced great pain and was |9unable to move her arm. Her testimony was corroborated by that of Ms. Mayence, the nurse to whom she immediately reported her distress. After this occurrence, the claimant’s condition was worsened to the point that she was no longer able to perform her job. Both of the doctors agreed that she sustained an aggravation to her preexisting condition.

Based on the evidence in this record, we cannot say that the WCJ was manifestly erroneous in concluding that the claimant proved, by a preponderance of the evidence, that an incident at work aggravated her preexisting condition to the extent that she was no longer able to work.

ENTITLEMENT TO WAGE BENEFITS AND SURGERY

Law

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582.

A claimant is entitled to TTD benefits if she proves by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(c); Jones v. Hollywood Casino Shreveport, 42,819 (La.App. 2d Cir.12/5/07), 972 So.2d 1189. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met the burden of proving temporary total disability. Hatfield v. Amethyst Construction, Inc., supra.

An employer is obligated to furnish all necessary medical expenses related to a work injury. La. R.S. 23:1203. A claimant may recover medical | mexpenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. City of Shreveport v. Casciola, 43,132 (La.App. 2d Cir.3/26/08), 980 So.2d 203. The employee must prove by a reasonable preponderance of the evidence the necessity and relationship of the physician’s treatment to the work-related accident. Casciola, supra. A WCJ’s determination with regard to medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Casciola, supra.

Discussion

The employer claims that the WCJ erred in finding that the claimant was entitled to TTD benefits, medical treatment, and surgery. The claimant, however, asserts that the WCJ was not manifestly erroneous in its awards. As to the surgery, she stressed Dr. Mays’ testimony that she would require more extensive surgery as a result of her work-related accident.

Because the claimant suffered a disabling aggravation of her preexisting condition due to a work-related accident, she is entitled to TTD benefits. The evidence in its totality supports the WCJ’s finding in this regard and that portion of the judgment is affirmed.

However, the issue as to the payment of the claimant’s surgery is slightly more complicated. The claimant was already scheduled to have surgery to repair her preexisting rotator cuff tear, which was to be paid for by her private insurer. The medical evidence indicated that the aggravation of |nthe condition would necessitate a more extensive surgery. The doctors could not say definitively whether the aggravation the claimant sustained was a greater tear of the rotator cuff, which was visible on the pre-accident MRI, or the biceps tendon damage which was visible on the post-accident MRI with contrast. However, they agreed that, based on their exams and the claimant’s credible history, she did suffer an aggravation to her condition that prevented her from working and that surgery was necessary. After carefully reviewing the record, especially the medical evidence, we find that the WCJ was not clearly wrong in his decision to require the employer to pay for the claimant’s surgery.

We find no manifest error in the WCJ’s decision to award wage benefits and payment of the costs of the claimant’s surgery. Accordingly, those portions of the judgment are affirmed.

PENALTIES AND ATTORNEY FEES

Law

The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. La. R.S. 23:1201(F). In order to reasonably controvert a claim, the | ^defendant must have some valid reason or evidence upon which to base the denial of benefits. Howard v. Holyfield Construction, Inc., 38,728 (La.App. 2 Cir. 7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La.1/7/05), 891 So.2d 684. The WCJ has great discretion in awarding or denying penalties and attorney fees. Brien v. Leon Angel Constructors, Inc., supra.

When an attorney fee is warranted, it must reflect the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time devoted to the case. In the event of an excessive attorney fee, the court is authorized to lower it to an amount “reasonable under the circumstances.” Thompson v. The Animal Hospital, 39,154 (La.App. 2d Cir.12/15/04), 889 So.2d 1193.

Discussion

The employer maintains that it had ar-ticulable and objective reasons for denying payment of benefits to the claimant, which reasons were rooted in the medical evidence. As a result, it contends that the trial court erred in assessing penalties. However, should the awarding of penalties be warranted, the employer asserts that the amount awarded was excessive because the most that could be awarded was $2,000 per claim, with a maximum aggregate amount of $8,000 in penalties. Here only two possible claims were detailed, the failure to pay wage benefits and the failure to pay for surgery. As to the propriety of the amount of the penalties, counsel for the claimant conceded at oral argument that he did not address that issue in brief because he could not dispute the employer’s argument.

| ,sThe claimant points to the deposition of Ms. Cannatella, the insurance adjuster who denied the claim, as a basis for imposing penalties. Ms. Cannatella was in receipt of the medical reports of Dr. Mays and Dr. Barton, which described a worsening of the claimant’s condition due to a work injury; however, she still denied the claim on the bases of the preexisting condition and scheduled surgery.

On the issue of imposition of penalties, we find that they are warranted for the employer’s failure to pay wage benefits to the claimant after she plainly suffered an on-the-job accident which prevented her from continuing to perform her job. Because the employer failed to reasonably controvert the claim, an award of $2,000 is warranted for this claim. However, we find that penalties are not warranted as to the payment of the costs of the claimant’s surgery. While it was obvious that the claimant suffered a work-related aggravation of her preexisting condition, the medical evidence was less clear as to its treatment. Since the surgery had already been scheduled and it appeared to be essentially the same procedure, the employer refused to pay for it. We find that under the facts of this case, this action did not rise to the level of failing to reasonably controvert the claim and therefore, no penalties are appropriate for this claim.

As to attorney fees, the employer argues that their imposition was unwarranted and, if warranted, the amount assessed, $15,975, was excessive. The claimant maintains that the award of attorney fees was proper.

An award of reasonable attorney fees is warranted for the employer’s failure to pay wage benefits. However, since the surgery issue was ^reasonably controverted, attorney fees are not warranted for that claim. The trial judge awarded the attorney fees based on the lawyer’s work on the entire case; we amend the attorney fees to only reflect work on the wage claim. Under the circumstances of this case, which includes the lawyer’s work in the instant appeal, we find that a reasonable award of attorney fees is $7,500.

Accordingly, we reduce the award of penalties to $2,000 and the attorney fees to $7,500. The litigation expenses of $3,667.04 are affirmed.

CONCLUSION

The portion of the judgment awarding penalties is amended to reduce that award to $2,000; additionally, attorney fees are reduced to $7,500. In all other respects, the judgment is affirmed. Costs are assessed against the appellant.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

      . We note that La. R.S. 23:1205(C) was not utilized to try to resolve the "Catch 22” situation in which the claimant was ensnared by the private insurer's refusal to pay for the surgery because it deemed the matter to be an employment-related injury covered by workers’ compensation and the employer's refusal to pay on the basis that the surgery was not work related because it was scheduled prior to the work accident.

      . In relevant part, this provision provides:
      Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Mary CHEATHAM, Appellant.
    No. 44,247-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| pursuant to a plea bargain agreement, Defendant, Mary Cheatham, pled guilty to two counts of forgery and was sentenced to ten years’ imprisonment at hard labor on each count, with the sentences to be served concurrently with each other, but consecutive to any other sentence. Defendant now appeals. For the reasons stated herein, the portion of Defendant’s sentence ordering her sentences are to be served consecutively with any other sentence, specifically the sentence in Docket No. 149,-510, is vacated and the matter is remanded to the trial court for resentencing in accordance with the plea bargain agreement. In all other respects, the sentences of Defendant are affirmed.

FACTS

Defendant was charged by bill of information with five counts of forgery, contrary to La. R.S. 14:72. The crime of forgery is punishable by a fine of not more than $5,000, or imprisonment, with or without hard labor, for not more than ten years, or both. See La. R.S. 14:72 D. Defendant pled guilty pursuant to a plea bargain agreement, which is evidenced by the following discussion at Defendant’s guilty plea proceedings:

MRS. HALTERMAN: Your Honor, I have gone over the plea offer with Ms. Cheatham. She is charged with five counts of forgery. The plea offer is that she pleads guilty to two counts with a PSI, and there is an agreement that whatever sentence she received would be concurrent to each other and I believe with any other sentence she would be serving, and that there would be no multi-bill filed against this defendant.
MR. PATILLO: That is our offer, Your Honor.
THE COURT: What’s the max, twelve?
|2MRS. HALTERMAN: I believe zero to ten.
THE COURT: Ms. Cheatam [sic], are you prepared to take that plea bargain?
MS. CHEATAM [sic]: Yes, sir.
=i= * *
THE COURT: You understand the sentence is up to me?
MS. CHEATAM [sic]: Yes, sir.
THE COURT: Anybody made any promises or threats to You to get you to plead guilty other than what we’ve talked about up here?
MS. CHEATAM [sic]: No, sir.

A presentence investigation (PSI) report was ordered. The trial court thoroughly advised Defendant of her rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and made a diligent effort to determine her competence, literacy and understanding. Defendant’s guilty plea was then accepted:

THE COURT: Guilty plea is entered. A presentence investigation is ordered, and I’m going to direct the department to put in their report the sentence is to run concurrent and that there is to be no multi-bill ...

At the subsequent sentencing hearing, the trial judge noted that he had considered Defendant’s extensive criminal history, including her fourth felony offender status and her extraordinary number of charges and convictions for issuing worthless checks over the course of many years. The trial judge noted for the record the factors set forth in La. C. Cr. P. art. 894.1. In mitigation, the trial judge observed that letters in support of Defendant were received and their contents were reviewed and considered. |sThe trial court then imposed sentences of ten years’ imprisonment at hard labor on each count, to be served concurrently with each other, but consecutively with any other sentence, specifically referencing Defendant’s sentence in Docket No. 149,510.

Defendant was advised of her right to post-conviction relief and the time limitations for said relief. Defendant timely filed a motion to reconsider sentence. A hearing was held and Defendant argued that her sentence was excessive, specifically noting the low monetary amount of $625 which was involved in the forgery conviction. It was also noted that full restitution had been made and that the letters written on Defendant’s behalf had been submitted. The trial judge denied Defendant’s motion to reconsider sentence, specifically noting her “very long history of forgery and theft.” This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The sentences imposed are excessive for this offender and these offenses.

Defendant argues that she should not have been sentenced to the maximum sentences for her convictions because maximum sentences are reserved for the most egregious of offenders and Defendant was not such an offender. The State counters that, given Defendant’s lengthy criminal history, the ten-year hard labor jail sentences to be served concurrently with each other were not out of proportion to the seriousness of the numerous forgery offenses actually committed by Defendant. We agree.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show |4that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating factor so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not the rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his personal history, including his age, family ties, marital status, health and employment record. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a | ^purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. In cases where a defendant has pled guilty to an offense which does not adequately describe his conduct or he has received a significant reduction in potential exposure to confinement through a plea bargain agreement, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. Id; State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

In the case sub judice, the record shows that the trial judge adequately considered both aggravating and mitigating circumstances, thereby | (¡complying with La. C. Cr. P. art. 894.1. The record further indicates that the trial judge tailored the sentences to Defendant and the specific offenses she committed. Defendant has a very long history of forgery and theft. Further, Defendant received a substantial benefit by having all of the sentences for each conviction in this case run concurrently with each other. We do not find that the trial judge manifestly abused his discretion in sentencing Defendant. Defendant’s argument regarding the exces-siveness of her sentences is without merit.

At Defendant’s sentencing, the trial judge ordered that Defendant’s sentences run concurrent with each other, but consecutive with any other sentence, specifically the sentence in Docket No. 149,510. Defendant, therefore, argues for the first time on appeal that the trial judge failed to honor the portion of the plea bargain agreement specifying that Defendant’s sentences would run concurrently with each other and with any other sentence. Defendant contends that the portion of the trial court’s order specifying consecutive sentences violates the original agreement between herself and the “trial court.” According to Defendant, the trial court’s failure to honor the agreement renders Defendant’s guilty plea involuntary because she was induced to plead by the false promise of concurrent sentences. Defendant does not seek a withdrawal of her guilty pleas, but rather only that the sentences be vacated and remanded for resen-tencing in accordance with the original plea bargain agreement.

In response, the State sets forth the following concession in its brief:

The State of Louisiana agrees that the issue can be reviewed as an “error patent on the face of the record” and that as part of the plea |7agreement the ten year hard labor sentence should not be served as a consecutive sentence with any sentence in Docket No. 149,510.

A plea bargain agreement is considered to be a contract between the State and the criminal defendant. State v. Davis, 41,430 (La.App.2d Cir.11/1/06), 942 So.2d 652; State v. Wynne, 40,921 (La.App.2d Cir.4/12/06), 926 So.2d 789; State v. Peyrefitte, 04-0742 (La.10/15/04), 885 So.2d 530. If the State is a party to a plea bargain agreement, the bargain must be enforced. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Redfearn, 441 So.2d 200 (La.1983); State v. Carriere, 611 So.2d 781 (La.App. 4th Cir.1992). Although an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence (see La. C. Cr. P. art. 841), Defendant’s complaint is that the trial court failed to enforce a plea bargain agreement, which renders her guilty plea constitutionally infirm. See State v. Dixon, 449 So.2d 463 (La.1984); State v. Anderson, 27,356 (La.App.2d Cir.9/27/95), 661 So.2d 542.

A guilty plea cannot be withdrawn after sentencing unless it is shown that the facts surrounding the guilty plea render it constitutionally deficient. State v. Taylor, 535 So.2d 1229 (La.App. 3d Cir. 1988). A guilty plea is invalid when the defendant is induced to plead guilty by a plea agreement and the terms of the bargain are not satisfied. State v. Dixon, supra; State v. Beverly, 37,301 (La.App.2d Cir.8/20/03), 852 So.2d 1149. When a plea bargain is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Byrnside, 34,948 (La.App.2d Cir.8/22/01), 795 So.2d 435.

|sWe find that the trial court’s failure to enforce the portion of the plea bargain agreement specifying that Defendant’s sentences were to be served concurrently with any other sentence renders Defendant’s guilty plea constitutionally infirm. See State v. Dixon, supra; State v. Anderson, supra. Since the State is a party to Defendant’s plea bargain agreement, the plea bargain agreement with Defendant must be enforced. See Santobello v. New York, supra; State v. Redfearn, supra; State v. Carriere, supra. Accordingly, the portion of Defendant’s sentence ordering that her sentences are to be served consecutively with any other sentence, specifically the sentence in Docket No. 149,510, is vacated and the matter is remanded to the trial court for resentenc-ing in accordance with the plea bargain agreement.

CONCLUSION

For the foregoing reasons, the portion of Defendant’s sentence ordering that her sentences are to be served consecutively with any other sentence, specifically the sentence in Docket No. 149,510, is vacated and the matter is remanded to the trial court for resentencing in accordance with the plea bargain agreement. In all other respects, the sentences of Defendant are affirmed.

SENTENCE AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR RESENTENCING.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Howell EALY, Appellant.
    No. 44,252-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Louisiana Appellate Project by Edward K. Bauman, Lake Charles, for Appellant.
    Howell Ealy In Proper Person.
    Paul J. Carmouche, District Attorney, Bennett Langford, III, John Ford McWil-liams, Jr., Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

|,Howell Ealy was convicted of aggravated battery, adjudicated a fourth felony offender and sentenced to 40 years at hard labor without benefits and with a fine. He now appeals, contesting his conviction and sentence. For the reasons expressed, we affirm the conviction and multiple offender adjudication. On error patent review, we amend the sentence to delete the fine, but otherwise affirm the sentence.

Factual and Procedural Background

The ease arises from an incident on Alabama Street in Shreveport on February 17, 2007. The victim, Marilin Andrews, rented the house from her friend Barro-nette Chism’s mother. The defendant, Ealy, was Ms. Chism’s fiancé. At trial in January 2008, the following evidence was adduced.

Ms. Andrews testified that on the evening of February 17, she was at the house on Alabama Street; Ms. Chism had dropped off her granddaughter and left. Shortly afterward, Ealy came in through the open door and demanded to know where Ms. Chism was. Ms. Andrews replied she was not there, but Ealy did not believe her and went all over the house looking for Ms. Chism. At some point he picked up some object (Ms. Andrews described it only as “a thing down off the thing” and “like a wood thing”) and struck her several times with it, exclaiming he would “show me how a man whoop a woman.” Around this time, Ms. Chism returned and Ealy “went after her,” but only with his fists, not the wooden object, until Ms. Chism took the baby and left in her pickup truck. Ms. Andrews added that neither she nor Ms. Chism went to the hospital for their injuries, but she thought the police took pictures.

^Officer Michael Presley testified that the officer who initially responded to the complaint, Patterson, was on medical leave and could not testify. However, Officer Presley testified that he made contact with Ms. Chism and her mother at their house on Dilg League Drive, and they reported that Ealy had beaten Ms. Chism with a metal pipe in the face and head earlier; Ms. Chism had dried blood on her face, had been struck and was very upset. He was certain that Ms. Chism described being hit with a metal object, like a broom handle. He did not know if Ms. Chism required medical treatment, and he never spoke to Ms. Andrews. Ms. Chism’s mother phoned later to say that Ealy was asleep at the house on Dilg League Drive; Officer Presley and others roused from bed and arrested him.

For reasons never disclosed, Ms. Chism did not testify. The state offered no photographs, no weapon (wood or metal), and no medical reports showing the extent of either woman’s injuries.

Ealy admitted that he had three prior felony convictions. He testified that he had known Ms. Chism for years, they were engaged, and her mother gave them the house on Dilg League Drive as a wedding gift. He admitted coming to Ms. Andrews’s house on Alabama Street that night. Early in his testimony, he stated that Ms. Chism was not there, but he saw Ms. Andrews doing cocaine in front of the nine-month-old baby and threatened to call the police; Ms. Chism arrived and denied doing drugs that night. Later, he testified that when he got to the house on Alabama Street, Ms. Chism was there doing crack, which she was trying to shove under the couch to conceal from him. He resolutely maintained, however, that he 13never picked up any object, wooden coat rack, aluminum pipe or broom handle, or struck either woman; when he left the house, both women were completely unharmed. Finally, he admitted being sound asleep at the house on Dilg League when the police came to arrest him. On cross-examination, he stated that both Ms. Andrews and Officer Presley were lying about the incident, although he could not imagine why. He also could not understand why police failed to find all the crack Ms. Chism was shoving under the couch.

The state charged Ealy with two counts of aggravated battery, for hitting Ms. Chism and Ms. Andrews with a metal pipe. After hearing the evidence summarized above, a six-member jury found him guilty as charged on both counts. Ealy filed a motion for post verdict judgment of acquittal, which the district court initially denied. The state then charged Ealy as a fourth felony offender; after a hearing in April 2008, the district court adjudicated him an habitual offender as charged.

At sentencing in May 2008, the court stated that although Ms. Chism had not testified at trial, she had freely spoken to the probation officer who prepared the PSI. The court also stated Ms. Andrews testified that Ealy struck Ms. Chism only with his fists, not with a dangerous weapon; it therefore partially granted the motion for post verdict judgment of acquittal as to count one, reducing that conviction to simple battery. The court sentenced him to 40 years at hard labor without benefits, and a fine of $500, as a fourth felony offender for the aggravated battery of Ms. Andrews, and to a concurrent six months for the simple battery of Ms. Chism. Ealy filed a Emotion for reconsideration, which the court denied. This appeal followed, one assignment of error raised by the Louisiana Appellate Project and two assignments, to which the state has not responded, raised by Ealy pro se.

Discussion: Sufficiency of the Evidence

By his first pro se assignment of error, Ealy urges the evidence was insufficient to support the conviction. He quotes from the initial police report, written by Officer Patterson, and argues that this differs from the testimony given at trial, in that the report referred only to Ms. Chism as a victim and does not mention that Ms. Andrews was injured. He contends that the only reasonable conclusion is that Ms. Andrews was simply a witness to whatever occurred between him and Ms. Chism.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due ^process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219.

Investigative police reports are inadmissible hearsay. La. C.E. art. 803(8)(b)(i); State v. Griffin, 2001-0579 (La.3/7/01), 783 So.2d 1241; State v. Dupree, 41,658 (La.App. 2 Cir. 1/31/07), 950 So.2d 140, writ denied, 2007-0439 (La.10/12/07), 965 So.2d 396.

Aggravated battery is defined as “a battery committed with a dangerous weapon.” La. R.S. 14:34. In order to convict the defendant of aggravated battery, the state must prove (1) that the defendant intentionally used force or violence upon the victim, (2) the force or violence was inflicted with a dangerous weapon, and (3) the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. Moore, 38,355 (La.App. 2 Cir. 6/23/04), 877 So.2d 177, writ denied, 2004-2084 (La.1/7/05), 891 So.2d 670.

Ms. Andrews testified that Ealy came to her house looking for Ms. Chism, got angry when he could not find her, picked up a wooden object and struck Ms. Andrews in the head and face. Ealy admitted coming to the house looking for Ms. Chism and threatening to call the police on Ms. Andrews, but maintained that he left without harming anyone. The jury plainly chose to accept Ms. Andrews’s account over the defendant’s, and we have no reason to disturb that credibility call.

|fiNotably, the police report on which Ealy relies was filed in discovery responses but not admitted into evidence at trial; discovery is not evidence. State v. Arnold, 30,282 (La.App. 2 Cir. 1/21/98), 706 So.2d 578. Without a showing of some exception, the police report is inadmissible hearsay. La. C.E. art. 803(8)(b)(i); State v. Griffin, supra; State v. Dupree, supra. A report never admitted to evidence and probably inadmissible does not impeach Ms. Andrews.

Admittedly, the state’s case was not without problems, as neither Ealy’s intended victim, Ms. Chism, nor the lead investigator, Patterson, testified. Also, the state offered no physical evidence to corroborate Ms. Andrews, such as photos of the injuries, medical records or the object that Ealy wielded as a dangerous weapon. Further, Officer Presley’s testimony differed from Ms. Andrews’s on some salient points, such as whether Ealy struck Ms. Chism with his fists or a pipe of some kind, and whether the pipe he used on Ms. Andrews was metal or wood. However, viewed in the light most favorable to the state, these minor anomalies are not sufficient to undermine Ms. Andrews’s clear testimony that Ealy struck her with a wooden object. This assignment lacks merit.

Denial of Confrontation

By his second pro se assignment of error, Ealy urges the court denied his constitutionally protected right of confrontation. He contends the state used the out-of-court statements of Ms. Chism and Officer Patterson as evidence to convict, contrary to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He also suggests, without elaboration, that trial counsel |7was ineffective for failing to object to this evidence.

Crawford v. Washington, supra, holds that the confrontation clause of the Sixth Amendment acts as an absolute bar on the admission of all out-of-court testimonial evidence unless (1) the witness who made the statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. Id. at 68, 124 S.Ct. at 1374; State v. Smith, 2004-3140 (La.6/24/05), 906 So.2d 391; John Robert Knoebber, “Say That to My Face: Applying an Objective Approach to Determine the Meaning of Testimony in Light of Crawford v. Washington,” 51 Loy. L.Rev. 497, 514-514 (2005). Confrontation rights claims are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 2001-0273 (La.5/17/02), 817 So.2d 1131. Mistaken application of the rule of Crawford v. Washington, supra, is also subject to harmless error analysis. State v. Buckenberger, 2007-1422 (La.App. 1 Cir. 2/8/08), 984 So.2d 751, writ denied, 2008-0877 (La.11/21/08), 996 So.2d 1104.

Although Ealy alleges six violations, we find only two instances when the statements of persons who did not testify were mentioned at trial. On cross-examination of Officer Presley, defense counsel asked what Ms. Chism said in response to a question about the nature of her injuries. The state objected on grounds of hearsay, but the court overruled it; the witness said he did not recall. There was nothing “testimonial” about this response.

On direct examination, Officer Presley testified that earlier in the day, Officer Patterson had been dispatched to the house on Dilg League Street, Rwhere he interviewed Ms. Chism and her mother; they told him that Ealy had struck Ms. Chism in the head with a metal pipe. We note at the outset that Ealy did not object to this statement; the issue is not properly presented for appeal. La. C.E. art. 103 A(1); La. C. Cr. P. art. 841.

Nevertheless, the contested statement was arguably testimonial as it was made in a police interview, and Ms. Chism and Officer Patterson might have expected it to be used in a trial setting. Crawford v. Washington, at 51-53, 124 S.Ct. at 1364-1365. Contrary to the out-of-court statement, however, Ms. Andrews testified that Ealy struck Ms. Chism only with his hands; as a result, the district court granted Ealy’s motion for post verdict judgment of acquittal, reducing the verdict to simple battery. If the jury relied on Ms. Chism’s out-of-court testimonial statement to Officer Patterson to convict Ealy of aggravated battery, the harm was completely neutralized by the post verdict judgment that disregarded that statement and relied solely on Ms. Andrews’s in-court testimony. On this record, the admission of the challenged testimony was harmless beyond a doubt. State v. Robinson, supra; State v. Delaney, 42,990 (La.App. 2 Cir. 2/13/08), 975 So.2d 789.

Ealy has also alleged, without elaboration, that his trial counsel was ineffective. The claim of ineffective assistance is usually addressed not on direct appeal but in post conviction proceedings, where a record can be developed. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108; State v. Langston, 43,923 (La.App. 2 Cir. 2/25/09), 3 So.3d 707. For the reasons just discussed, the record does not support a finding that counsel’s failure to |9object to the testimony which he now challenges both fell below the objective standard of reasonableness under prevailing professional norms and resulted in actual prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Matthis, 2007-0691 (La.11/2/07), 970 So.2d 505. This assignment of error lacks merit.

Excessive Sentence

Through counsel, Ealy urges that the 40-year sentence was excessive and imposed without compliance with La. C. Cr. P. art. 894.1. He concedes that the court considered his criminal history, but asserts that it should have also considered his employment history, family ties and health. He asks this court to vacate the sentence and remand for a lesser sentence that complies with art. 894.1.

The state responds that the district court carefully stated reasons for sentence, showing a particular sensitivity to the factual basis by reducing one verdict to simple battery. The state seeks affirmance.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Woods, 41,-420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, units denied, 2006-2768, 2781 (La.6/22/07), 959 So.2d 494. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 | in(La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The district court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

As a fourth felony offender convicted of aggravated battery, Ealy faced 20 years to life at hard labor without benefit of probation, parole or suspension of sentence. La. R.S. 14:34; R.S. 15:529.1 A(1)(c)(i), and G; La. R.S. 15:574.4 A.

The district court presided over a jury trial, adjudication hearing and sentence hearing, demonstrating throughout a firm grasp of the facts of the case. The court specifically cited the harm suffered by Ms. Andrews; the fact that the offense occurred in front of a baby; and Ealy’s long criminal | nhistory, including violent crimes against women. We find substantial compliance with art. 894.1. Moreover, in light of this offense and offender, we find nothing grossly disproportionate about Ealy’s 40-year hard labor sentence. This assignment of error lacks merit.

On error patent review, however, we notice that in addition to the 40 years at hard labor without benefits, the court imposed a fine of $500. Although the statute of conviction, La. R.S. 14:34, authorizes a fine of up to $5,000, the statute of enhancement, La. R.S. 15:529.1 A, does not authorize the imposition of a fine. State v. Dickerson, 584 So.2d 1140 (La.1991); State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833. We therefore amend the sentence to delete the fine, but otherwise affirm. We find nothing else we consider to be error patent. La. C. Cr. P. art. 920(2).

Conclusion

For the reasons expressed, Howell Ealy’s conviction and adjudication as a fourth felony offender are affirmed. His sentence is amended to delete the fíne but is otherwise affirmed.

CONVICTION AND ADJUDICATION AFFIRMED; SENTENCE AMENDED TO DELETE FINE.