author: GENOVESE, Judge. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana in the Interest of L.D.
    No. 14-01.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Annette Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Juvenile/Appellant, L.D.
    Michael Harson, District Attorney-Fifteenth Judicial District, Michelle M. Breaux, Assistant District Attorney, Lafayette, Louisiana, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

Lin this juvenile matter, the juvenile, L.D., appeals his adjudication of having committed unauthorized use of a movable, alleging violations of the time limitations set forth in the Louisiana Children’s Code without good cause. For the following reasons, we affirm his adjudication as amended herein with instructions.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of September 1, 2013, Ashlee Romero noticed that her 2012 white Kia Optima was missing from the parking lot of her apartment complex in Lafayette, Louisiana, and she contacted the police. Two days later, the vehicle was spotted by the police, pulled over, and L.D., the driver of the vehicle, was detained. Ms. Romero had not given L.D. permission to use her car.

On September 5, 2013, L.D. was charged by juvenile delinquency petition with committing unauthorized use of a movable, a violation of La.R.S. 14:68. On the day prior, the juvenile court judge found probable cause to continue L.D. in custody and set his answer hearing for October 2, 2013. At the answer hearing, L.D. denied the allegations in the petition. Additionally, L.D.’s counsel objected to the untimeliness of the hearing and asked that L.D. be released. The juvenile court judge overruled the objection, finding good cause for the untimeliness of the answer hearing due to the court’s own schedule. Thereafter, on October 14, 2013, L.D.’s counsel filed a written Motion for Release and Dismissal, alleging that L.D. should be released and the petition dismissed because the answer and adjudication hearings were untimely. Prior to L.D.’s adjudication hearing on October 23, 2013, 12his counsel orally argued his Motion for Release and Dismissal. The juvenile court judge denied the motion, again finding good cause for the delay had been shown.

At the adjudication hearing, the juvenile court judge found that the State had proved beyond a reasonable doubt that L.D. committed unauthorized use of a movable. He ordered a Pre-Disposition Investigation Report and set L.D.’s disposition hearing for November 18, 2013. Subsequently, at the disposition hearing, the juvenile court judge ordered that L.D. be placed in the custody of the Office of Juvenile Justice for a period of two years, with a recommendation that he be placed in a non-secure facility. L.D. has appealed the denial of his Motion for Release and Dismissal.

STANDARD OF REVIEW:

In State in the Interest of J.B. & G.M., 03-587 (La.App. 4 Cir. 12/10/03), 863 So.2d 669, our brethren of the fourth circuit applied an abuse of discretion standard in reviewing whether the juvenile court judge erred in denying a motion to dismiss for failing to timely hold adjudication hearings. Accordingly, we find the abuse of discretion standard of review applicable to the instant case.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. After reviewing the record, we note three errors patent.

First, the record does not indicate that L.D. was informed of his rights when he appeared to answer the petition, as required by La.Ch.Code art. 855. Louisiana Children’s Code Article 855 states in pertinent part:

|SA. When the child appears to answer the petition, the court shall first determine that the child is capable of understanding statements about his rights under this Code.
B. If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
(3) His right to an adjudication hearing.
(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7) The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court might impose pursuant to Articles 897 through 900.

In State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716, the court failed to advise the juvenile of the enumerated rights in La.Ch.Code art. 855 when he appeared to answer the allegations of the delinquency petition. In determining that the error was harmless, the appellate court noted that the juvenile was represented by counsel and pled not guilty. See also State in the Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633. Likewise, in the present case, L.D. was represented by counsel and entered a denial to the allegations contained in the petition. Therefore, we find the error that occurred in failing to apprise L.D. of his rights pursuant to La.Ch.Code art. 855 is harmless.

Second, we note that the juvenile court judge failed to inform L.D. of the two-year prescriptive period for filing post-conviction relief as required by La. Code Crim.P. art. 930.8. Although the Louisiana Children’s Code contains no 14 similar provision, this court has previously held that this notice should be given. State in the Interest of B.A., 12-659 (La.App. 3 Cir. 12/19/12), 104 So.3d 833; State in the Interest of J.F., 03-321 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282. Therefore, we order the juvenile court judge to inform L.D. of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within thirty days of the rendition of this opinion and to file written proof of same in the record.

Third, the record before this court does not indicate that the juvenile court judge gave L.D. credit for time spent in secure detention, if any, prior to the imposition of disposition, as required by La.Ch. Code art. 900. See State in the Interest of J.F., 851 So.2d 1282. Accordingly, we amend L.D.’s disposition to give him credit for time served in a secure detention facility before the imposition of disposition, if any, and instruct the juvenile court judge to note the amendment in the written disposition and in the minute entry. See State ex rel. M.M., 06-607 (La.App. 3 Cir. 11/2/06), 941 So.2d 716.

ASSIGNMENTS OF ERROR

On appeal, L.D. sets forth the following assignments of error for our review:

The juvenile judge erred in setting the initial answer hearing outside the time limitations set forth in La.[Ch.] Code art. 854 and in finding that good cause existed to delay the appearance to answer in this case.
The juvenile judge erred in denying L.D.’s Motion for Release and Dismissal.

ISSUES ON APPEAL:

The issues in this case concern the legal effect of the violation of the statutory time limitations for holding the answer hearing and the adjudication hearing in this juvenile delinquency proceeding. Specifically, we must decide |swhether the juvenile court judge abused his discretion in finding “good cause” for the non-compliance with the statutory time limitations.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In these two assignments of error, L.D. challenges the juvenile court judge’s denial of both his oral and written motions for release and dismissal of the petition because of a violation of the time limitations set forth in La.Ch.Code arts. 854 (the time period for answering the petition) and 877 (the time period for holding an adjudication hearing).

Louisiana Children’s Code Article 854 provides that a juvenile in continued custody must appear to answer a petition within five days after the filing of the petition. The article also allows the juvenile court judge to extend such period for good cause. La.Ch.Code art. 854(C). In this case, the petition was filed on September 5, 2013. L.D. answered the petition on October 2, 2013, well beyond the five day time period. L.D.’s counsel objected to the untimeliness of the answer hearing and asked that he be released. When the juvenile court judge asked if the time limit could be extended for good cause, L.D.’s counsel responded, “They all say for good cause, Your Honor, but good cause cannot be retroactively found. It has to be demonstrated or asked for prior to the hearing at which, you know....” The juvenile court judge at the time, Judge Duplantier, then stated the following:

And so you might not have been here because you weren’t employed then. We had this issue that was brought up about six months ago, maybe longer; and at that time, Ms. Brown was present, Ms. Prejean was present; and that issue was brought to light. And at that time, the Court — I made the ruling, and I’m pretty sure Judge Clause did subsequently as well because we had a discussion — and what I said was we will do everything within our power to have it done as close to the timeline as possible. The fact that Judge Clause nor I are in court every week, like some juvenile courts are, I said at that time I believe good cause to be the fact that we are not in court on those times. And what we did agree to do was to have it on each 1 Bother’s days if in fact we were present and could do that. It’s my understanding that Judge Clause has been out of town, and I was not in court during that timeframe either. And so I find, as I did not retrospectively but prospectively, a year ago saying that good cause is based on our court schedule calendar. So I deny your request at this time.

(Emphasis added). L.D.’s counsel noted his objection to the court’s “standing order.”

Thereafter,- on October 14, 2013, L.D.’s counsel filed a written Motion for Release and Dismissal, alleging that L.D. should be released and the petition dismissed because of the untimely setting of the answer hearing, which he contends ultimately caused L.D.’s adjudication to be untimely. As noted by L.D.’s counsel, L.D. was un-disputedly in custody at the time and La. Ch.Code art. 877 provides for an adjudication hearing to be held within thirty days of the answer to a petition when a juvenile is in continued custody. Thus, through counsel, L.D. argued then, as he does now on appeal, that if the timelines had been adhered to, his answer hearing would have been held no later than September 13, 2013, and that his adjudication hearing would have been set no later than October 14, 2013. Since L.D. appeared to answer on October 2, 2013, and his adjudication hearing was set for October 23, 2013, his counsel argued that both were untimely.

In his Motion for Release and Dismissal, L.D.’s counsel also asserted that any finding of good cause should have been made prior to the lapsing of the applicable time period, citing State in the Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, in which the supreme court held that the State must show good cause and obtain an extension before La.Ch.Code art. 877’s time period for holding an adjudication hearing has expired. L.D.’s counsel also asserted in his Motion for Release and Dismissal that he was prejudiced by the juvenile court’s [7failure to hold the answer hearing timely since L.D.’s answer hearing triggered the timelines for other occurrences, i.e., the timeline for discovery and the timeline for the adjudication hearing.

Although L.D.’s counsel acknowledged in his Motion for Release and Dismissal that La.Ch.Code art. 854 contains no remedy for a violation of the timeline for answering the delinquency petition, he nonetheless argued that La.Ch.Code art. 877 mandates that a delinquency petition be dismissed if the adjudication hearing has not been held timely. He contends that, since L.D.’s untimely answer hearing caused his adjudication hearing to be untimely, La.Ch.Code art. 877’s remedy, i.e., dismissal of the petition, should be adhered to in this case. Additionally, L.D.’s counsel argues that fundamental fairness warranted dismissal because of the grave prejudice suffered by L.D. due to the untimely delay in his answer hearing.

In countering L.D.’s argument^ the State asserts that good cause was shown for the juvenile court’s untimely setting of the answer hearing, specifically noting that L.D. did not object and did not request a special fixing for the answer hearing. Additionally, the State contends that La.Ch. Code art. 854 contains no remedy or penalty for the untimely setting of an answer hearing and that L.D. was not prejudiced by same. Finally, the State argues that the adjudication hearing was held timely under La.Ch.Code art. 877 because it was held within thirty days of L.D.’s answer hearing.

Untimeliness of Answer Hearing-La.Ch. Code art. 851

Louisiana Children’s Code Article 854 provides as follows:

A. If the petition is filed prior to or during the hearing to determine continued custody, the court may order the child to answer the petition upon completion of the hearing. If not so ordered and the 1 Rchild is continued in custody, he shall be ordered to appear to answer the petition within five days after the filing of the petition.
B. In all other cases, the child shall be ordered to appear to answer the petition within fifteen days after the filing of the petition.
C. For good cause, the court may extend such period.

In the instant case, the record indicates that the delinquency petition was filed on September 5, 2013, a day after the continued custody hearing. Since L.D. was continued in custody, subsection A of La.Ch. Code art. 854 required the answer to the delinquency petition to have been held within five days of the filing of the delinquency petition. Since two of the days within the five day period could not be counted because they were legal holidays (Saturday and Sunday), L.D.’s answer hearing should have been held by September 12, 2013. L.D.’s answer hearing was not held until October 2, 2013; thus, it was untimely.

Remedy for Untimely Answer Hearing

L.D. argues that the remedy for an untimely answer hearing under La.Ch.Code art. 854 should be the same as the remedy for an untimely adjudication under La.Ch. Code art. 877, i.e., dismissal of the delinquency petition. L.D. argues that La.Ch. Code art. 877’s time limitations do not begin to run until the juvenile has answered the delinquency petition and that “[djelays at this early stage affect the overall timeliness of the delinquency proceedings.” Additionally, L.D. contends that any lesser remedy would encourage total disregard of the legislatively created time limitations.

Louisiana Children’s Code Article 854 does not contain a provision setting forth a remedy for an untimely answer hearing. However, other articles in the |3Louisiana Children’s Code do provide a remedy for the violation of the time periods they set forth. For example, La.Ch.Code art. 843 specifically provides for the “release” of a child if the petition is filed untimely:

A. If a child is continued in custody prior to adjudication, the delinquency petition shall be filed within forty-eight hours of the hearing to determine continued custody.
B. If no petition is filed within the applicable time period, the child shall be released.

Addressing the predecessor to La.Ch.Code art. 843 (Code of Juvenile Procedure Article 46), which contained the same language as current La.Ch.Code 843(B), the fifth circuit interpreted the remedy provision for the failure to timely file a petition against a juvenile as release from custody. State in the Interest of J.L., 592 So.2d 435 (La.App. 5 Cir.1991), writ denied, 597 So.2d 1031 (La.1992). Thus, if the State fails to file the petition against the juvenile within the time period set forth in La.Ch. Code art. 843, the juvenile is to be released from custody.

Additionally, La.Ch.Code art. 877(C) provides for the dismissal of a petition when an adjudication is untimely:

If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.

Because La.Ch.Code art. 854 does not specify either remedy, i.e., release from custody or dismissal of the petition, the remedy for an untimely answer hearing is not clearly provided for by statute. Louisiana Children’s Code Article 104(1) states that courts should proceed in accordance with the Louisiana Code of Criminal Procedure when the Louisiana Children’s Code is silent on an issue. We find La. Code Crim.P. art. 701, the speedy trial article, to be the analogous adult codal provision. Section C of La.Code Crim.P. art. 701 provides for arraignment |into be set within thirty days of the filing of a bill of information or indictment unless just cause for a longer delay is shown. This court has found that violations of La. Code Crim.P. art. 701 “concern pretrial custody only, not dismissal of the charge.” State v. Savoie, 07-914, p. 6 (La.App. 3 Cir. 3/5/08), 982 So.2d 119, 123, writ denied, 08-617 (La.10/3/08), 992 So.2d 1011. In Savoie, 982 So.2d at 122-23, this court also stated that the failure to timely arraign Mr. Sa-voie under La.Code Crim.P. art. 701 did “not concern the time limitation for the institution of prosecution or for the commencement of trial, which are valid grounds for a motion to quash[,]” citing La.Code Crim.P. art. 532(7). To the contrary, an untimely arraignment is not listed as a valid ground for a motion to quash. La.Code Crim.P. art. 532. Since an untimely arraignment is not a valid ground for a motion to quash, but instead concerns pretrial custody only, Savoie suggests that the remedy for an untimely arraignment under La.Code Crim.P. art. 701 is release from custody and not dismissal of the charges. Likewise, we find that the remedy for an untimely answer hearing under La.Ch.Code art. 854 is to release the juvenile from custody rather than dismissal of the charges.

The jurisprudence has also held that once an adult defendant is tried and convicted, his allegation that La.Code Crim.P. art. 701 has been violated becomes moot. Savoie, 982 So.2d 119. Likewise, having found that a violation of La.Ch. Code art. 854 is analogous to a violation of La.Code Crim.P. art. 701, L.D.’s allegation that La.Ch.Code art. 854 has been violated became moot once he was adjudicated.

Thus, even though we find no good cause for the untimely answer hearing was established in this case, the remedy for the untimely answer hearing was the | n release of L.D. from custody. Since L.D. has already been adjudicated, the violation of La.Ch.Code art. 854 has been rendered moot.

Finally, L.D. argues that because his answer hearing was held untimely, his adjudication hearing was held untimely. Since the remedy for an untimely adjudication hearing is clearly dismissal of the petition, L.D. argues that his delinquency petition should be dismissed as well. Louisiana Children’s Code Article 877 (emphasis added) provides, in pertinent part:

A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.

In the present case, L.D. appeared to answer his delinquency petition on October 2, 2013, and his adjudication hearing was held on October 23, 2013. Thus, the adjudication hearing was held within the time period specified in La.Ch.Code art. 877.

L.D.’s argument concerning the “ripple effect” of the untimely answer hearing on the adjudication hearing is likewise without merit. L.D. contends that:

[Sjince the timelines for the adjudication proceedings are triggered by the answer hearing, the failure to hold the answer hearing within five days of September 5, 2013, resulted in an unjustified delay in conducting the adjudication hearing. Had the answer hearing been timely heard (on or before September 11)[,] the adjudication hearing should have been held no later than October 11, 2013. Instead, it was held on October 23, 2013, even though counsel requested an earlier setting.

hiJn following this argument, the failure to comply with any of the time periods in the Louisiana Children’s Code would result in dismissal of the petition since a violation of any of the time periods would ultimately alter the time period for the adjudication hearing. The legislature obviously did not intend this result since it specifically stated that the remedy for failing to timely file the delinquency petition of a juvenile in custody is release of the juvenile from custody.

L.D. is not entitled to receive the benefit of “wiping out” his adjudication simply because the timing of the adjudication was altered by the untimely answer hearing. The ramification of such would essentially require all charges to be dismissed against juveniles whose delinquency petition or answer hearing was held untimely. Such a remedy was not envisioned by the legislature. This argument lacks merit.

DISPOSITION

Though we find good cause was not established by the juvenile court in its extension of the time period for having L.D.’s answer hearing, we find the appropriate remedy for same to be a release of L.D. from custody; however, the release remedy has been rendered moot due to the fact that L.D. has already been adjudicated. We also find that L.D.’s adjudication hearing was held within thirty days of his answer hearing as required by La.Ch.Code art. 877 and that it was, therefore, timely. Finally, we find L.D.’s “ripple effect” argument that his untimely answer hearing caused his adjudication hearing to be untimely to likewise be without merit. Thus, L.D.’s adjudication is affirmed.

In addressing the errors patent in this case, we instruct the juvenile court judge to inform L.D. of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate notice to him within thirty days of the rendition of this opinion and to |isfile written proof of same in the record. We also amend L.D.’s disposition to give him credit for time served in a secure detention facility before the imposition of his disposition, if any, and instruct the juvenile court judge to note the amendment in the written disposition and in the minute entry.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

|, Upon the filing of the juvenile delinquency petition against L.D. on September 5, 2013, an answer hearing should have been held within five days pursuant to La.Ch.Code art. 854(a), after allowing for legal delays. The majority has correctly observed that good cause for an extension was not shown. L.D.’s counsel properly objected to the untimely answer hearing when it was held on October 2, 2013. On October 14, 2013, L.D.’s request to be released and the petition dismissed because of the untimely answer hearing was denied by the trial court, presumably because of the trial court’s erroneous finding of good cause on October 2, 2013.

The adjudication was held on October 23, 2013, within thirty days of the answer hearing, but past the time when the answer hearing was mandatorily required on September 12, 2013. What is the appropriate remedy?

The majority concludes that there is no remedy since L.D.’s adjudication rendered moot the illegality of the untimely answer hearing. Since the Louisiana Children’s Code does not provide a remedy, the majority analogizes to a violation of La.Code Crim.P. art. 701 and concludes that dismissal of the petition would thwart legislative intent. I disagree.

Reliance on the Louisiana Code of Criminal Procedure is, in my view, misplaced. Louisiana Children’s Code Article 104 refers one to the Code of 12Criminal Procedure “[wjhere procedures are not provided in this Code.... ” That Article does not refer to remedies, but only procedures. The Louisiana Children’s Code does provide for procedures, e.g., mandatory answer within five days after the filing of the petition if a juvenile is continued in custody, as here. See La.Ch.Code art. 854(A).

When fashioning a remedy, one must be cognizant that La.Ch.Code art. 102 provides that “[t]hese Code provisions shall be construed to promote ... the elimination of unjustifiable delay.” By refusing to order the dismissal of the juvenile delinquency petition, we are allowing the State to extend the adjudication hearing by simply not adhering to the mandatory time standards of the Louisiana Children’s Code. That is a subversion of the purpose of Title VIII of the Code entitled “Delinquency.” “The purpose of this Title is to accord due process to each child who is accused of having committed a delinquent act....” La.Ch.Code art. 801. While the Louisiana Children’s Code mandates a due process procedure, the State or a trial court may simply ignore it as long as the hearing is held within thirty days of the illegal answer hearing. This is especially egregious where there is an erroneous finding of good cause and an erroneous refusal to release an incarcerated juvenile, as here. It is an abrogation of the law’s underlying spirit, particularly since the remedy for a failure to hold a timely adjudication hearing is dismissal of the petition. See State ex rel v. K.E.C., 10-953 (La.App. 3 Cir. 12/8/10), 54 So.3d 735. The remedy should be the same where an answer hearing is improperly and untimely held and which results in a failure of due process and vitiation of the goal of “unjustifiable delay.”

For the foregoing reasons, I respectfully dissent. I would order the dismissal of the juvenile delinquency petition.

      . The juvenile’s initials are being used in accordance with Uniform Rules — Courts of Appeal, Rule 5-2.

      . Louisiana Children’s Code Article 114 provides that legal holidays are not to be counted if the time period is less than seven days. The article also states that Saturdays and Sundays are considered legal holidays.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alcide HYPOLITE.
    No. 13-1365.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Patrick D. Magee, Assistant District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    Edward Kelly Bauman,- Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Alcide Hypolite.
    Alcide Hypolite, Angola, LA, pro se.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

11 Defendant, Alcide Hypolite, was accused of raping his ten-year-old granddaughter, T. J., while she was spending the night at his home. He was charged by grand jury indictment with one count of aggravated rape, a violation of La.R.S. 14:42. After a trial by jury, Defendant was found guilty as charged. Defendant was sentenced to the mandatory sentence of life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant is now before this court alleging several attorney-filed and pro se assignments of error. For the following reasons, Defendant’s conviction and sentence are affirmed.

SUFFICIENCY OF THE EVIDENCE

A finding of insufficiency would require reversal of the conviction and, thus, obviate the need for discussion of the other assignments of error. See State v. Hearold, 603 So.2d 731 (La.1992).

Despite the fact that the victim’s testimony supported the elements of the crime of aggravated rape, Defendant attacks the sufficiency of the evidence. Basically, appellate counsel attacks the credibility of the victim. For the reasons that follow, we find that this assignment lacks merit.

This court has stated the following regarding the standard for reviewing a claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120], [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).

State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ denied, 13-1253 (La.11/8/13), 125 So.3d 449.

Although many witnesses testified for the State, the only eyewitness to testify was the victim herself, T. J. The victim was fifteen years old at the time of trial. At the time of the offense, however, the victim was ten years old. The victim testified that Defendant is her grandfather. While the victim was spending the night at Defendant’s house on January 31, 2009 (the night before the Super Bowl), Defendant went into the room where the victim was sleeping, took off the victim’s pants and panties, and started touching her vagina. The victim could not remember if Defendant touched her breasts. During her Stuller Place pre-trial interview, however, the victim indicated that Defendant did touch her on her breasts. When asked at trial what else he tried to do to her vagina, the victim stated that Defendant “kissed it and tried to stick his private in ... [her] vagina.” According to the victim, when Defendant tried to stick his private in her vagina, she jumped and tried to close her legs.

The victim admitted that she told both the doctor and her interviewer at Stuller Place that Defendant did not penetrate her. During her Stuller Place interview, the victim stated that Defendant tried to put his “thing” in her private part, but she kept her legs closed. When specifically asked by the Stuller Place interviewer if Defendant put his private part in her private part, the victim said “no.” At trial, the victim explained that when she was ten years old, she did not understand the meaning of “penetrate.” The victim further explained:

Q: What did you think they meant when you were 10 years old?
A: I thought they meant if he had went in all the way.
Q: Went what?
14A: Into my vagina all the way.
Q: All the way? Now — So, when you said, no, he didn’t penetrate you, you meant, no, his whole penis was not inserted in your vagina?
A: Yes, sir.
Q: Is that fair?
A. (Nodded head‘Tes”).
Q: Okay. Did some of it go in?
A: Yes, sir.
Q: But not the whole thing?
A: Not the whole thing.

The victim testified that she told her mom about the rape the next day when Defendant left. The victim testified that she cried and that she realized something wrong had happened to her.

On cross-examination, the victim testified that when the incident occurred, she was sleeping in a big room with about six other children present. The victim’s mom was sleeping down the hall, about two or three doors down. According to the victim, another person was sleeping about a foot away from her. During the incident, the victim testified, none of the other kids woke up.

The victim’s mom, Mia Barnes, testified that on the morning of February 1, 2009, she knew something was wrong with the victim. When Ms. Barnes asked the victim what was wrong, the victim responded, “Paw-paw raped me.” Ms. Barnes immediately told her stepmother, Earlette. Earlette called Defendant and told him to come home, while Ms. Barnes called 911. Thereafter, “they” went to Our Lady of Lourdes Hospital.

|5On cross-examination, defense counsel asked Ms. Barnes if any of the other children present at Defendant’s home said anything to her that morning. Ms. Barnes responded:

A: [B.D.] ran up to — [B.D.] ran up to me and told me that happened to her, too.
Q: Okay. That same night?
A: That same morning.
Q: That the same thing happened to her as had happened to—
A: [T.JJ. But not in that night.

Ms. Barnes also stated that Earlette ran a daycare in her home, and Defendant was present while Earlette was babysitting the kids. When asked if the victim always told the truth, Ms. Barnes replied, ‘Tes.” Ms. Barnes also testified that Defendant had been around the victim several times prior to the incident. At the time of the incident, Ms. Barnes stated that there was no tension in her relationship with Defendant. On re-direct examination, Ms. Barnes testified that the victim never told her that anyone else “did anything like this to her[.]”

Detective Nicole Benoit testified that she investigated the victim’s allegation of rape. Detective Benoit went to Our Lady of Lourdes Hospital and briefly spoke with the victim. According to Detective Benoit, the victim was very quiet, withdrawn, and crying. Detective Benoit explained that she took a sample of Defendant’s saliva with two cotton swabs. Detective Benoit also obtained a sample of the victim’s saliva with two cotton swabs. Defendant, Detective Benoit testified, gave permission for the collection of his blood, urine, hair, saliva, nail scrapings, and/or his clothing. Detective Benoit also discussed the fact that vaginal swabs and smears were taken from the victim. Detective Benoit explained that she | ^personally took the swab of the victim’s saliva, but all of the victim’s other swabs were taken by the doctors.

Dr. Charles Burnell testified as an expert in the field of emergency medicine. Dr. Burnell examined the victim on February 1, 2009. According to Dr. Burnell, his examination revealed scratches within the victim’s right inner thigh area, but he saw no evidence of seminal fluid or pubic hair. Dr. Burnell explained that the victim did have her own pubic hair. Dr. Burnell did not find evidence of any trauma to either the anus or the vagina. In order to obtain a pure sample and find out if there was any ejaculation or penetration, Dr. Burnell performed an internal vaginal exam. No swab was taken from the outer edges of the victim’s vagina. Dr. Burnell explained that a very small speculum is used to look inside and separate the walls of the vagina. Then, a swab is taken from inside the vaginal vault.' Dr. Burnell explained further:

Typically, we try to get all the way down to the cervix and swab around what’s call [sic] the fornices, which are either side of the cervix, where the horns of the uterus go out.
And we obtain fluid, from deep in that area, just because we know that that area is very difficult to introduce any foreign material without penetration.
That’s why I say, you want to make sure that you do get a pure sample. So that Q-tip is inserted deep within the vaginal vault.

Dr. Burnell also explained that the victim did have a vaginal opening, but there was no evidence of an acute tear of the hymen. Dr. Burnell described “acute” as being within the last twenty-four hours, and explained that there was no evidence of an “acute” violation of the victim’s tissue. When asked if his findings meant that nothing penetrated the victim “that deep,” Dr. Burnell replied:

|7A: No. The hymen was not intact. This child did not have a hymen. This child — This child could have been penetrated more deeply.
A: — the hymen is disrupted, and they actually have the introitus is open. It’s able to be penetrated.
And this child was without an intact hymen. She obviously could have been penetrated. But it did not show any gross evidence of a traumatic—
Q: Traumatic.
A: — penetration at that time, no, sir.

According to Dr. Burnell, it is not uncommon for a child the age of the victim to not have an intact hymen. When asked to describe the victim’s demeanor, Dr. Bur-nell stated that the victim was a “fairly good historian,” had a believable story, and answered questions appropriately.

On cross-examination, Dr. Burnell testified that the scratches on the victim’s thighs were superficial and consistent with what looked like fingernail marks. When asked if there would have been evidence of penetration if the victim’s vagina had been penetrated, Dr. Burnell responded:

A: No, sir.
Q: Okay. Could you explain why you say so.
A: Well, depending on, obviously, a lot of factors, including the size of the vaginal orifice or the actual size of the vaginal entry, the size of the penis of the perpetrator. These things really play a factor in whether or not you truly have a tear. I mean, it’s just a matter of simple physics.
Q: Okay.
A: As far as, you know, forceful penetration or non-forceful penetration, very difficult to tell. A 10-year-old child — And I don’t remember this young lady’s exact weight. But a 10-year-old child sometimes, from — the ability to accommodate a normal male penis, would be able to, without having significant trauma inflicted.
| sThat’s kind of borderline, when you look at prepubertal females. Those sometimes are difficult to tell whether or not there had been any foul play, because there’s not a mismatch, as if it would have been a two-year-old child with an introitus and possibly an intact hymen. But the introitus would have been much too small to accommodate a full-size male penis.

Finally, Dr. Burnell testified that he specifically asked the victim if she had been penetrated anally or vaginally, and the victim said “no.”

Amy Winters testified as an expert in forensic DNA analysis. While working at Orchid Cellmark, Ms. Winters received evidence from the Acadiana Crime Lab. Ms. Winters received two samples for DNA processing including a vaginal swab from the victim and a known reference sample from Defendant. According to Ms. Winters, sperm cells extracted from the vaginal swab matched the profile generated from Defendant’s sample. During cross-examination, Ms. Winters stated that she could not testify as to whether penetration or how much penetration occurred. Rather, she could only testify that she found sperm on the vaginal swabs taken from “the child’s” vagina.

When asked about the “minor contributor” in the sperm extraction mentioned in her report, Ms. Winters stated that the minor contributor cannot be determined. Ms. Winters opined that the minor contributor was likely “that of the victim’s profile that has spilled over or carried over into the non-sperm fraction.” Ms. Winters explained:

Because what I was saying earlier is, I start with one sample, and, during my process, I will separate one portion of the sample, and that becomes the non-sperm fraction, which should not contain any sperm cells.
And then the other fraction is the sperm cell fraction. It should only contain sperm cells, but, because this is a separation technique, it is quite possible that some of the victim’s DNA is present in that sperm cell fraction.

1 flLater, defense counsel asked Ms. Winters if the “minor contributor” could have come from someone else touching the victim. Ms. Winters responded:

A: No, that’s not consistent with that.
Q: And why not?
A: Because, the way the sample was collected and preserved and tested, it’s not likely that it is contamination. It is most likely that it is simply a portion of the victim’s DNA that is showing up in the sperm fraction.
Q: Not likely, or impossible?
A: I would say it’s not likely.
Q: Okay. So it’s—
A: But, I mean, it’s highly unlikely.
Q: So it is possible?
A: It is possible for someone else’s DNA to be there, but I don’t have any reason to believe that is someone else’s.

Defense counsel also questioned Ms. Winters as to whether DNA could be deposited by simply touching something or brushing up against something. Ms. Winters stated that it was possible, but not as likely as finding DNA in items saturated in blood.

Winnie Kurowski also testified as an expert in the field of forensic DNA analysis. Ms. Kurowski worked for the Acadia-na Crime Lab and received the sexual assault kit compiled in this case. Ms. Ku-rowski also received two cotton swabs of Defendant’s saliva. From the rape kit, Ms. Kurowski received vaginal swabs. According to Ms. Kurowski, the evidence was sent to Orchid Cellmark for testing, and Orchid Cellmark then sent an analysis report back. From Orchid Cellmark’s analysis, Ms. Kurowski was able to come up with a statistical analysis. | inMs. Kurow-ski determined with a reasonable degree of scientific certainty that Defendant was the source of the DNA profile from the sperm fraction of the vaginal swab. Ms. Kurow-ski also determined that the DNA profile obtained from the epithelial fraction of the vaginal swab matched the DNA profile from the victim’s reference sample. Ms. Kurowski explained that epithelial cells are usually the victim’s vaginal cells but sometimes can be a mixture of the vaginal cells and the suspect’s non-sperm cells.

B.D., age sixteen, testified that Defendant is her mom’s ex-husband. B.D. identified Defendant in court. B.D. testified that Defendant started raping her when she was seven or eight years old and did not stop until she was twelve. When asked if she knew what rape was, B.D. testified “forced sex.” When asked if Defendant “st[u]ck his penis into [her] vagina,” B.D. responded, ‘Tes, sir.” B.D. testified that this happened a lot and that it happened once when other kids were in the room sleeping. B.D. stated that she told her fourth-grade teacher what was happening, and the police and her mom were called. At that time, B.D. was removed from Defendant’s home. When asked if she ever told people that Defendant did not rape her, B.D. stated that she changed her story because her mom told her to. B.D. was put back into Defendant’s house. When B.D. again told her mom that Defendant was raping her, her mom told her not to go in her room while her mom was at work.

In brief, Defendant claims that the evidence was insufficient to convict him of aggravated rape. After reciting the elements of aggravated rape, appellate counsel argues the following:

Alcide Hypolite’s DNA was found on T.J. No one can say how it was deposited. T.J. told Ms. Picard at Stuller Place that Alcide did not put his penis inside of her. Dr. Burnell noticed no evidence of lnseminal fluid or pubic hair during his examination of T.J. During the examination Dr. Burnell “specifically asked her if she had any anal penetration, and she said no. I asked her if she had any vaginal penetration, she said no.” Although it appeared T.J. knew exactly what Ms. Picard and Dr. Burnell were asking, after questioning by the State she claimed at trial she did not know what they were asking when they said, did he penetrate you?

For these reasons, appellate counsel asks this court to reverse Defendant’s conviction and remand for further proceedings. Alternatively, appellate counsel asks this court to modify the verdict and render a judgment of molestation of a juvenile or sexual battery “in light of the victim’s testimony that there was no penetration.”

The State argues that in addition to hearing the testimonies of the victim and B.D., the jury heard expert testimony, from Dr. Burnell, Ms. Winters, and Ms. Kurowski. Dr. Burnell, the State argues, testified that no sperm was found on the exterior of the victim. An internal vaginal exam of the victim, however, discovered sperm containing Defendant’s DNA. The State concludes that this evidence proved beyond a reasonable doubt that Defendant penetrated the victim and left some of his seminal fluid inside of her vagina.

The crime for which Defendant was convicted, aggravated rape, is defined in pertinent part as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or 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:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La.R.S. 14:42.

112Rape is defined by La.R.S. 14:41 (A) as “the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.” Louisiana Revised Statutes 14:41(B) further provides that “[ejmission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.”

It is well-settled that a victim’s testimony alone is sufficient to support a verdict as long as that testimony was believed by the trier of fact and that testimony does not contain internal contradictions or irreconcilable conflicts with physical evidence:

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

State v. Dorsey, 10-216, pp. 43-44 (La.9/7/11), 74 So.3d 603, 634, cert. denied, — U.S. -, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).

In this case, the jury heard the victim testify that Defendant “tried to stick his private in ... [her] vagina.” When he did so, the victim jumped and tried to close her legs. The victim also testified that some of Defendant’s penis went in but not the whole thing. The jury also heard Dr. Burnell’s testimony that the victim said Defendant did not penetrate her and heard the Stuller Place interview where the victim specifically answered “no” when asked if Defendant put his private part in her private part. At trial, the victim explained that she told the Stuller Place interviewer and the doctor that Defendant did not penetrate her because she did not understand the meaning of penetration at that time. At the time the victim spoke to 118the interviewer and the doctor, she was ten years old and believed that “penetration” meant that Defendant’s penis went all the way into her vagina. Thus, when the victim told the interviewer and the doctor that Defendant did not penetrate her, she meant that Defendant’s whole penis was not inserted into her vagina. We note that the Stuller Place interviewer did not use the word “penetrate.” Thus, the victim’s trial explanation as to her misunderstanding of the word “penetrate” did not explain why she told the Stuller Place interviewer “no” when asked if Defendant put his private part into her private part.

As this court explained in State v. Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125 (La.1992):

When a witness is impeached, this simply means the jury, as the trier of fact, was presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury was prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony.

At trial, the victim clearly testified that Defendant stuck a portion of his penis into her vagina. The jury was able to weigh this testimony against the victim’s inconsistent pre-trial statements and her explanation for the inconsistencies. Obviously, the jury chose to believe the victim’s trial testimony.

Furthermore, the jury heard expert DNA testimony that corroborated the victim’s trial testimony. Both of the DNA experts testified that DNA extracted from sperm found on a vaginal swab taken from the victim matched Defendant’s DNA profile. The jury also heard Dr. Burnell’s testimony that the vaginal swab taken from the victim was taken from deep within the “vaginal vault” and that no swab was taken from the exterior of the victim’s vagina. In brief, appellate 114counsel suggests that Defendant’s DNA could have been left behind by Defendant tucking the victim in after having sex with his wife. There was no testimony, however, that Defendant tucked the victim in after having sex with his wife. The reference cited by appellate counsel was defense counsel’s opening statement where defense counsel argued:

And he’ll admit, I touched my granddaughter. That’s my granddaughter. And he’ll admit, I had sex with my wife. And, afterwards, when I got up, my granddaughter was sleeping, I covered her up. He’ll admit those things.
Did he wipe his hands clean? He wiped it with a dry towel. DNA, as you’ll hear, can transfer anywhere.

Although defense counsel asked questions of the DNA expert as to how DNA can be transferred, no witness testified that Defendant tucked the victim in after having sex with his wife.

Considering the victim’s trial testimony and the corroborating DNA evidence, the evidence was sufficient to prove penetration, however slight. Furthermore, the jury obviously chose to believe the victim’s trial testimony regarding penetration and her explanation as to why she previously said that no penetration occurred. Thus, the evidence was sufficient to find Defendant guilty of aggravated rape.

This assignment lacks merit.

LESS THAN UNANIMOUS VERDICT

In this assignment of error, Defendant alleges that the trial court erred in allowing Defendant to be convicted by less than a unanimous verdict. Defendant was convicted by a vote of ten to two. Citing State v. Goodley, 398 So.2d 1068 (La.1981), appellate counsel argues that since aggravated rape is punishable by death and there is no indication that the State would not seek the death penalty, a 115unanimous jury verdict was required. For the reasons that follow, we find that Goodley is no longer controlling, and the trial court did not err in allowing a less than unanimous verdict.

First, we note that Defendant did not raise the non-unanimous jury verdict issue in the trial court. In fact, Defendant did not object when the trial court informed the jury that ten of them had to agree in order to reach a verdict. Although this court has held that the constitutionality of the non-unanimous jury verdict scheme in Louisiana must be preserved by contemporaneous objection, the error complained of in this case is different. See State v. Duplantis, 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143. Defendant in the present case is not challenging the constitutionality of a non-unanimous verdict. Rather, Defendant is arguing that he was charged with a capital crime for which a unanimous jury verdict was required. When faced with this issue in Goodley, 398 So.2d 1068, the supreme court addressed the issue as an error patent. Thus, we will address the error despite the fact that no objection was made in the trial court.

Aside from its determination that this issue is an error patent, we find that Good-ley is not controlling in this case. As cited by appellate counsel, Goodley held that a unanimous verdict was required when a defendant is charged with a capital offense, even when the State stipulated that it would not seek the death penalty. In making this finding, the supreme court reasoned:

The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict. As stated above, La. Const, of 1974 Art. I, § 17 and C.Cr.P. art. 782 provide in pertinent part:
|1fi“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.”
Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.

Id. at 1070-71.

Since Goodley, however, the legislature has enacted a “hybrid” capital/non-capital aggravated rape statute. Now, the aggravated rape statute allows for either a capital or non-capital aggravated rape charge:

(D)(1) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
(2) However, if the victim was under the age of thirteen years, as provided by Paragraph A(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.

La.R.S. 14:42.

|17As stated by the first circuit in State v. Mizell, 05-2516, p. 7 (La.App. 1 Cir. 6/9/06), 938 So.2d 712, 716, this “hybrid” statute gives the State the “discretion of pursuing a violation of the aggravated rape statute ... as a capital offense or as a non-capital life imprisonment offense.” “A unanimous verdict is still required when the state opts to prosecute under LSA-R.S. 14:42(D)(2)(a), the capital verdict portion of the ‘hybrid’ statute.” Id. By the same token, if the State does not opt to prosecute under the capital portion of the statute, a unanimous verdict is not required.

In brief, appellate counsel alleges that a unanimous verdict was required because there is no indication in the present record that the State would not seek the death penalty:

There is no indication that the State would not seek the death penalty. This was not noted on the Bill of Indictment nor was it mentioned when the Indictment was read to the jury. The jury was merely instructed that any conviction for aggravated rape carried a life sentence. However, there is nothing in the record indicating the State opted not to seek the death penalty. A unanimous jury was required by statute as Alcide was being prosecuted for aggravated rape, a capital offense.

We agree with appellate counsel in that the State made no indication in the grand jury indictment as to whether or not it was charging Defendant with aggravated rape as a capital or non-capital offense. However, there is nothing in the record to indicate that the State was charging Defendant with a capital offense. In fact, the record supports a finding that the State was pursuing a non-capital offense. The trial court informed the jury, without any objection or comment by either the State or the defense, that the possible imprisonment was life. Additionally, the trial court charged the jury, again without any objection or comment by either party, that ten out of twelve of the jurors must agree to reach a |isverdict. Then, after the jury found Defendant guilty, the trial court sentenced Defendant to life imprisonment without any objection by the State. Finally, as argued by the State in brief, the death penalty was not an option in this case in light of the Supreme Court’s ruling in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), that the Eighth Amendment of the United States Constitution prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

Because there is nothing in the record to suggest that the State pursued the death penalty against Defendant (in fact the record suggests otherwise) and because the death penalty was not an option, a unanimous jury verdict was not required in the present case. See State v. Craig, 09-1547 (La.App. 3 Cir. 6/2/10), 2010 WL 2179724 (unpublished opinion), writ denied, 10-1533 (La.1/14/11), 52 So.3d 900, where this court relied upon the absence of anything in the record to suggest the state was seeking the death penalty as grounds for upholding the appropriateness of the defendant’s waiver of jury trial.

This assignment lacks merit.

EVIDENCE OF OTHER CRIMES

In this assignment of error, Defendant contends that the trial court erred in allowing evidence of other crimes to be admitted at trial. Specifically, Defendant claims that the trial court erred in allowing B.D. to testify that Defendant raped her. We find that the trial court did not err in admitting B.D.’s testimony.

Prior to trial, the State filed a Notice of Intent to use Evidence of Other Crimes Evidence Pursuant to 412.2. In the notice, the State asserted that it intended to use prior bad acts committed by Defendant from “2006 through 2009 upon victim [B.D.].” At a hearing prior to trial, defense counsel noted his | ^objection to the other crimes evidence, arguing that since Defendant was never charged with the other crimes allegations, the introduction of such evidence would be more prejudicial than probative. During trial, the trial court held a hearing outside of the jury’s presence to determine the admissibility of B.D.’s testimony. B.D., age sixteen at the time of trial, testified that Defendant started raping her when she was seven or eight and did not stop until she was twelve. Although B.D. testified that the rapes generally occurred in her room or her mom’s room, Defendant did rape her when other kids were present in the room. B.D. also testified that Defendant put his penis inside her vagina and put his mouth on her vagina. Finally, B.D. testified that Defendant never played with her breasts.

Because the hearing was simply to determine the admissibility of B.D.’s testimony, the trial court did not allow cross-examination. The trial court found the evidence admissible under La.Code Evid. art. 412.2 as similar crimes, acts, or wrongs. Defense counsel noted his objection for the record without alleging any particular grounds. Prior to B.D.’s testimony at trial, at the request of defense counsel, the trial court instructed the jury that B.D.’s testimony, if believed by the jury, should only be considered for the purpose of showing Defendant’s “guilty knowledge, absence of mistake or accident, intent, system, motive, identity, and/or Defendant’s lustful disposition toward young girls or his propensity to sexually assault young girls ... who are under his care, control, custody, and supervision.”

On appeal, appellate counsel claims that the trial court erred in admitting B.D.’s testimony because her testimony was factually distinct and irrelevant to the victim’s allegations against Defendant. Appellate counsel alleges that B.D.’s accusations are factually distinct from the victim’s allegations because: 1) B.D. testified that Defendant raped her for several years while the present victim claims |2nPefendant raped her only once; 2) B.D. lived with Defendant whereas the present victim did not; 3) B.D. alleges there was penetration while the present victim told both the Stuller Place interviewer and the doctor that no penetration occurred; and 4) B.D. testified that Defendant did not touch her breasts while the present victim told the Stuller Place interviewer that Defendant did touch her breasts.

Appellate counsel also questions the veracity of B.D. because: 1) B.D. claimed one of the rapes occurred while other children were in the room; 2) B.D. testified that the rapes occurred when her mother left for work, yet her mother ran a daycare out of the home; 3) no other complaints of abuse were alleged by the children in the daycare or B.D.’s siblings; 4) although B.D. told her fourth-grade teacher that Defendant raped her, she changed her story and said it did not happen; and 5) no evidence was presented to corroborate B.D.’s allegations.

Finally, appellate counsel argues that the prejudicial effect of B.D.’s testimony outweighed its probative value. Appellate counsel asserts that Defendant was forced to “defend his life against two crimes when he was only charged with one and never arrested or convicted of the other.”

The State argues that the similarities between the offense allegedly committed against B.D. and the offense committed against the present victim justified the admission of B.D.’s testimony. Furthermore, the State points out that the trial court gave the jury a limiting instruction immediately prior to B.D.’s testimony and again when instructing the jury on their charges.

We find that Defendant is limited on appeal to challenging the trial court’s admissibility of B.D.’s testimony on the basis raised in the trial court — that the prejudicial effect of the evidence outweighed its probative value. Defendant did not argue in the trial court that the rape allegedly committed on B.D. was distinct |2ifrom the rape committed on the present victim, nor did Defendant argue that B.D.’s veracity was questionable. It is well-settled that a defendant may not raise an argument on appeal that was not asserted in a contemporaneous objection at trial. La.Code Crim.P. art. 841. “This rule applies to instances where a party objected to the introduction of evidence at trial on one ground but either adds to or changes the basis for challenging the evidence on appeal.” State v. Landry, 08-318, p. 6 (La.App. 3 Cir. 10/1/08), 2008 WL 4415697 (unpublished opinion) (citing State v. Clayton, 427 So.2d 827 (La.1982); State v. Ford, 349 So.2d 300 (La.1977)). Thus, Defendant is precluded from seeking review of the trial court’s admissibility of the other crimes evidence on the basis that it was distinctive from the crime committed against the victim and on the basis that B.D. was not credible. Arguably, Defendant is also precluded from arguing on appeal that the prejudicial effect of B.D.’s testimony outweighed its probative value since Defendant did not raise this argument “contemporaneous” with the admission of the evidence. Although defense counsel raised this argument at a hearing prior to trial, defense counsel simply noted a general objection when the trial court actually ruled on the admissibility of the evidence at trial. Since the argument was raised in the trial court, however, we will address the argument.

Louisiana Code of Evidence Article 412.2 governs the admission of similar crimes, wrongs, or acts in sex offense cases. The article provides in pertinent part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

lagThe supreme court has stated the following regarding the standard of reviewing the admissibility of evidence under La.Code Evid. art. 412.2:

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675, 684. This same standard is applied to rulings on the admission of other crimes evidence and evidence under La. C.E. art. 412.2. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228; State v. Humphries, 40,810 (La.App. 2 Cir. 4/12/06), 927 So.2d 650, 656, writ denied, 06-1472 (La.12/15/06), 944 So.2d 1284.

State v. Wright, 11-141, pp. 10-11 (La.12/6/11), 79 So.3d 309, 316. The supreme court further stated that “Article 412.2 was enacted to loosen restrictions on ‘other crimes’ evidence, and to allow evidence of ‘lustful disposition’ in cases involving sexual offenses.” Id. at 317. In weighing the probative value versus the prejudicial effect of the other crimes evidence before it, the supreme court looked at the similarities between the other crimes evidence and the facts presently before it. Id. Finding the similarities between the two acts “were sufficiently probative to support the admission” of the other crimes evidence, the supreme court noted that the “evidence demonstrates defendant had a propensity for sexual activity with adolescents where he held a position of authority, and where the adolescent children were in his household.” Id. at 317-18. Likewise, in the present case, B.D.’s testimony and the victim’s testimony demonstrate that Defendant had a propensity for sexual activity with adolescents where he held a position of authority and where the adolescents were in his household. Both B.D. and the victim were young girls related to Defendant. The testimony was that both were raped while in Defendant’s household in a room with other children sleeping.

| ¾⅛ Wright, the supreme court found that the other crimes evidence was not so prejudicial as to warrant exclusion. The court cited the following explanation of the balance between the probative value of evidence and its prejudicial effect:

Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.

Id. at 318 (quoting State v. Rose, 06-402 (La.2/22/07), 949 So.2d 1236, 1244).

Considering the limiting instruction given by the trial court in this case, along with the victim’s testimony and the DNA evidence, the admission of B.D.’s testimony alone would not “lure” the jury into finding Defendant guilty of the charged rape of the victim. Thus, we find that the prejudicial effect of B.D.’s testimony did not outweigh its probative value.

Finally, even if B.D.’s testimony was erroneously admitted, any error would be harmless. As this court recently stated, “[I]t is well established jurisprudence in Louisiana that inadmissible other-crimes evidence is subject to a harmless error analysis.” State v. Barnes, 13-576, p. 3 (La.App. 3 Cir. 12/11/13), 127 So.3d 1070, 1073. As a practical guide; Louisiana courts have adopted the harmless error test announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967):

Chapman tests whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. at 828. An error did not “contribute” to the verdict when the erroneous trial feature is unimportant in relation to everything else the jury considered on the issue. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991), overruled as to standard of review for erroneous jury instructions in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Chapman was refined in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The Sullivan inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered is this trial was surely unattributable to the error.” Id., 508 U.S. at 279, 113 S.Ct. at 2081. This Court adopted the Sullivan refinement of Chapman. See State v. Code, 627 So.2d [1373] at 1384 [ (La.1993) ]; State v. Bourque, 622 So.2d [198] at 241 fn. 20 [ (La.1993) ].

State v. Johnson, 94-1379, pp. 13-14 (La.11/27/95), 664 So.2d 94, 100.

Considering the victim’s testimony and the DNA evidence submitted in the present case, the guilty verdict was surely unattributable to B.D.’s testimony, even if that testimony was erroneously admitted. Appellate counsel argues that the erroneous admission of B.D.’s testimony would not be considered harmless because the verdict was based solely on the victim’s credibility, which was tarnished by her previous statements that no penetration occurred and the lack of physical evidence other than Defendant’s DNA. As stated previously, the jury heard the victim’s testimony as well as her explanation as to why she previously stated no penetration occurred. The jury chose to believe the victim, and their determination was rational. Moreover, the presence of Defendant’s DNA found within the victim’s vagina was presented to the jury without any explanation of how the DNA could have been deposited innocently. Finally, prior to B.D.’s testimony, defense counsel elicited testimony from the victim’s mother regarding the alleged rape committed on B.D. Defense counsel asked Ms. Barnes if any other children said anything to her the morning she found out that the victim was raped. Mr. Barnes responded:

A: [B.D.] ran up to — [B.D.] ran up to me and told me that happened to her, too.
Q: Okay. That same night?
la,A: That same morning.
Q: That the same thing happened to her as had happened to—
A: [T.J.], But not in that night.

Thus, defense counsel elicited testimony regarding Defendant’s alleged rape of B.D. before the State introduced B.D.’s testimony.

Considering the foregoing, the trial court did not err in allowing B.D.’s testimony. Accordingly, this assignment lacks merit.

CONSTITUTIONALITY

In this assignment of error, Defendant challenges the constitutionality of Louisiana’s scheme of allowing non-unanimous jury verdicts in cases where life imprisonment must be imposed. Defendant is precluded from raising this issue on appeal since the issue was not raised in the lower court. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

PROSECUTORIAL MISCONDUCT AND INEFFECTIVE COUNSEL

Defendant also makes various allegations of prosecutorial misconduct. In none of the instances, however, did defense counsel object at trial. Thus, in accordance with La.Code Crim.P. art. 841, Defendant is precluded from raising the alleged errors on appeal unless he can show his counsel was ineffective for failing to object. Defendant alleges that his counsel was ineffective for failing to object to the alleged prosecutorial misconduct. Thus, we will address Defendant’s ineffective-assistance-of-counsel claim.

A criminal defendant is guaranteed the effective assistance of counsel. United States Sixth Amendment; La. Const. art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La.1986). To establish a claim of ineffective assistance, a defendant must show that |j>ficounsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel’s professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). This does not mean “errorless counsel [or] counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.” State v. Ratcliff, 416 So.2d 528, 531 (La.1982).
A claim of ineffectiveness is generally relegated to post-conviction, unless the record -permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel’s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 32-35.

State v. Bright, 98-398, pp. 40-41 (La.4/11/00), 776 So.2d 1134, 1157, reversed on other grounds, 02-2793 (La.5/25/04), 875 So.2d 37.

In this case, Defendant claims his counsel was ineffective for failing to object to various statements he claims constituted prosecutorial misconduct. Defendant claims the prosecutor committed misconduct when he: 1) referred to Defendant as a child predator in his opening statement; 2) allowed Dr. Burnell to vouch for the victim’s credibility by stating that she had a believable story; 3) asked the DNA expert if it was possible there were aliens after defense counsel asked the expert if someone else could have possibly been the minor contributor of DNA found on the victim’s vaginal swab; 4) told the DNA expert to send her bill to the District Attorney; 5) told the jury in closing argument that Defendant “thought” the victim was too weak to tell anyone what he did to her; 6) referred to Defendant as a predator in closing argument; 7) described the victim’s medical examination as an “excruciating event of being violated;” 8) argued that the unknown DNA was the victim’s DNA; and 9) argued that there was no way the victim could have “bumped” into Defendant’s sperm.

127Had defense counsel objected to each of the statements above, the only remedy available to defense counsel would have been to ask for an admonition or mistrial under La.Code Crim.P. art. 771. That article provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In State v. Draughn, 05-1825, pp. 44-45 (La.1/17/07), 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the supreme court stated:

Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Leonard, 2005-1382 p. 11 (La.6/16/06), 932 So.2d 660, 667. Moreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). Although prosecutors are allowed wide latitude in choosing closing argument tactics, they should not misstate the evidence. However, even if the prosecutor exceeds the bounds of closing argument, this court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury .and contributed to the verdict. State v. Martin, 1993-285 p. 18 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).

Defendant has failed to show that even if his trial counsel would have objected to the above comments, an admonition was warranted, much less that a mistrial would have been warranted under La.Code Crim.P. art. 771. Furthermore, 128considering the victim’s testimony, B.D.’s testimony, and the corroborating DNA evidence, the comments made by the prosecutor, even if improper, were not sufficiently prejudicial to thoroughly convince this court that the comments influenced the jury and contributed to the verdict. Thus, Defendant fails to prove that he was prejudiced by his counsel’s failure to object to the above comments.

Regarding his claim that the prosecutor allowed Dr. Burnell to “vouch” for the victim’s credibility by stating that she presented a “believable” story, Defendant cites Rhue v. State, 693 So.2d 567 (Fla.App. 2 Dist.1996). In Rhue, the Florida court found that the defendant’s counsel was ineffective for failing to object to the testimony of several witnesses (a doctor, the victim’s mother, the victim’s grandmother, and the victim’s great grandmother) regarding the victim’s credibility. Louisiana courts have also found that an expert witness must not give an “opinion directly concerning the particular victim’s credibility.” State v. V.L.G., 11-634, p. 12 (La.App. 3 Cir. 12/7/11), 2011 WL 6077831 (unpublished opinion) (quoting State v. Myles, 04-434, p. 11 (La.App. 5 Cir. 10/12/04), 887 So.2d 118, 125). Because the victim’s credibility in Rime was the determinative issue at trial, the court found that defense counsel should have objected to the testimony and comments vouching for the victim’s credibility. Unlike the present case, however, the court in Rhue noted that the only evidence that corroborated the victim’s statement was his grandmother’s testimony that his back was bruised and his penis was red, swollen, and badly bruised the day after the incident. To the contrary, in the present case there was DNA evidence corroborating the victim’s testimony. Thus, Dr. Bur-nell’s testimony as to the victim’s “believability” in the present case would not have been as likely to influence the jury’s verdict.

^Furthermore, it is not as clear in the present case that defense counsel’s failure to object was not a considered strategic decision. Dr. Burnell testified that the victim told him Defendant did not penetrate her. Thus, defense counsel may have thought it was better for the jury to believe Dr. Burnell’s testimony that the victim’s story to him was “believable.” Both defense counsel and appellate counsel have used the victim’s “non-penetration” statement to Dr. Burnell as support for Defendant’s argument that no rape occurred because no penetration took place.

We find no merit to Defendant’s claims of ineffective assistance of counsel.

DECREE

Defendant’s conviction and sentence is affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the victim’s initials are used throughout to protect her identity. Later in the opinion, initials are also used to protect the identity of an alleged victim who is also minor.


author: THIBODEAUX, Chief Judge.

text:
    CAJUN INDUSTRIES, LLC, et al. v. VERMILION PARISH SCHOOL BOARD, et al.
    No. 14-22.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2014.

      David Rollins Cassidy, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellees — Cajun Industries, LLC and Cajun Maritime, LLC.
    Robert R. Rainer, Rainer, Anding, Talbot & Mulhearn, Baton Rouge, LA, for Defendants/Appellants — Vermilion Parish School Board, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

| jThe plaintiffs, Cajun Industries, LLC, and Cajun Maritime, LLC (collectively “Cajun”), sought refunds for the payment of sales and use taxes on allegedly exempt items in the years 2007 through 2011. After a partial refund by the defendant tax collector, Vermilion Parish School Board, Sales Tax Division, Kathryn Vincent, Administrator (“Collector”), Cajun filed suit in the district court. The Collector reconvened for offset. Cajun filed a motion to strike and an exception of prescription, which the trial court granted. For the following reasons, we reverse the judgment of the trial court which struck the Collector’s reconventional demand for offset against Cajun’s refund claim for its 2010-2011 taxes. We affirm the judgment in all other respects.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting Cajun’s exception of prescription in light of La.R.S. 47:337.67 and La.R.S. 47:337.79; and
(2) whether the trial court manifestly erred in granting Cajun’s motion to strike the Collector’s reconventional demand for offset in light of La.R.S. 47:337.78 and La.R.S. 47:337.81.

II.

FACTS AND PROCEDURAL HISTORY

Cajun paid $195,965.09 in sales and use taxes on certain purchases that it made from 2007 to 2010. Cajun later conducted an internal audit and asserted that the purchases were exempt from taxation under La.R.S. 47:305, et |2sequitur, as the purchases and leases pertained to ships, barges, and vessels used in federal or coastwise interstate commerce.

In December of 2010, Cajun filed a claim for a refund of the $195,965.09. In May of 2011, Cajun filed a claim for an additional refund of $245,855.61 for sales and use taxes paid in 2010-2011.

In June of 2011, the Collector notified Cajun that it would conduct an audit to verify Cajun’s compliance with Vermilion Parish sales and use tax ordinances and relevant state statutes.

In July of 2012, the Collector informed Cajun that it was refunding $7,431.04 on Cajun’s first claim and $14,710.20 on its second claim. Those refund amounts were paid.

In correspondence to the Collector, Cajun argued the merits of the full refund requests under the substantive statutes and timely sought a redetermination under the procedural statutes. Cajun did not seek a formal hearing alleging that all documentation regarding the refund claims had been exchanged.

After unsuccessful attempts to settle the remaining disputed refund amounts totaling $419,679.46, the parties stipulated on March, 8, 2013, that all administrative remedies had been exhausted. The stipulation cited the pertinent substantive statutes and indicated that a statutory appeal might follow. On March 14, 2013, the Collector formally affirmed its partial denials of the refund claims.

By way of appeal, Cajun timely filed a petition for refund in the Fifteenth Judicial District Court in Vermilion Parish in May of 2013. The Collector filed an answer and reconvened against Cajun for statutory offset, stating that it expected to find over $100,000.00 in delinquent taxes, interest, and penalties owed by Cajun for the disputed periods, 2007-2011.

IsCajun filed a motion to strike and an exception of prescription, which the trial court granted. The Collector filed this appeal.

III.

STANDARDS OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). However, statutory interpretations present issues of law for the appellate court and are thus reviewed de novo. See Burnette v. Stalder, 00-2167 (La.6/29/01), 789 So.2d 573. Statutes imposing taxes are construed liberally in favor of the taxpayer. See McNamara v. Central Marine Serv., Inc., 507 So.2d 207 (La.1987). Statutes providing exemptions from taxation are construed strictly against the taxpayer. See Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1981).

IV.

LAW AND DISCUSSION

The Collector’s affirmative defense and reconventional demand for offset are based upon La.R.S. 47:337.78 and 47:337.81(0). Cajun’s motion to strike the demand for offset is based upon the civilian law of compensation, La.Civ.Code art. 1893, and Cajun’s position that the Collector’s claim for offset against a future finding is premature as offset applies only to liquidated claims. Cajun’s exception of prescription is based upon its position that the taxes due on transactions occurring in 2007, 2008, and 2009 prescribed three years from each year’s end, i.e., on December 31 of 2010, 2011, and 2012, respectively, pursuant to La. Const. art. 7, § 16, and La. R.S. 47:337.67. We will first address offset.

14Credit and/or Offset

The civilian law on compensation, as asserted by Cajun Ada its invocation of La.Civ.Code art. 1893, does not govern in this case. “It is well settled that laws regulating the collection of taxes[,]” like the statutes of the Uniform Local Sales Tax Code (ULSTC), “are sui generis and constitute a system to which the general provisions of the Civil Code have little, if any application.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708 (La.1993) (citations omitted). Specifically, pursuant to La.R.S. 47:337.78:

Before refunding any overpayment, the collector may first determine whether the taxpayer who made the overpayment owes any other liability under any ordinance administered by him. If such be the case, the collector may credit the overpayment against such liability and notify the taxpayer of the action taken.

While this statute is eleven years old, there are no cases interpreting it. Thus, the issue of its application is res nova. Prior to the 2003 enactment of the ULSTC, however, the first circuit commented instructively on La.R.S. 47:1622, 15an almost identical counterpart to La.R.S. 47:337.78, stating that credits and offsets were limited to “overpayments and underpayments occurring in the same tax year and requiring the taxes to be of the same character.” Union Exploration Partners, Ltd., Ltd. Partnership v. Secretary of Dept. of Revenue & Taxation, State of La., 610 So.2d 854, 856 (La.App. 1 Cir.1992) (citing Gulf Refining Co. of Louisiana v. McFarland, 157 La. 713, 103 So. 17 (1925)). The first circuit also stated that, because crediting of taxes is statutorily limited to overpayment and refund situations, “credit does not take place by operation of law because of compensation. The general law of compensation cannot apply to provide a credit where the legislature has specifically limited credits.” Id.

In further support of its right to offset, the Collector asserts La.R.S. 47:337.81(C). It provides that, in answering the plaintiffs appeal on a refund denial in district court, “the collector is authorized to assert a demand for any tax and additions thereto that he may deem is due for the period involved in the claim for refund or credit.” La.R.S. 47:337.81(0).

In construing legislative enactments, we must assume that the Legislature intended every word, phrase, and clause to have some meaning and that none was inserted by accident. Consequently, we will construe every provision of a statute in such a manner so as to give it some effect. Above all else, that interpretation must give a fair and reasonable meaning to the legislation so that the intent of the Legislature is honored.

Elevating Boats, Inc. v. St. Bernard Parish, 00-3518, p. 18 (La.9/5/01), 795 So.2d 1153, 1166 (citations omitted).

Accordingly, we agree with the Collector that La.R.S. 47:337.78 and La.R.S. 47:337.81(C) clearly grant a right of offset to the Collector. They do not, however, state that offset can be applied to prescribed claims.

\cJPrescription

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception of prescription. See Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). If however, the face of the petition shows that the prescriptive period has already lapsed, the plaintiff-in-reconvention in this case has the burden of establishing that suspension, interruption, or renunciation of prescription has occurred. See Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206.

Under La. Const, art. 7, § 16: “Taxes, except real property taxes, and licenses shall prescribe in three years after the thirty-first day of December in the year in which they are due, but prescription may be interrupted or suspended as provided by law.”

Louisiana Revised Statutes 47:337.67 (emphasis added) also allows three years to bring a claim for taxes, and it provides specific actions that will interrupt and suspend prescription:

A. Sales and use taxes levied by any political subdivision shall prescribe as of three years from the thirty-first day of December of the year in which such taxes became due.
B. The prescriptive period running against any such sales and use tax shall be interrupted by any of the following:
(1) The action of the collector in assessing the amounts of such taxes in the manner provided by law.
(2) The filing of a summary proceeding in court.
(3) The filing of any pleading, either by the collector or the taxpayer, with any state or federal court.
(4) The filing of a false or fraudulent return.
(5) The failure to file a return, with the intent to defraud.
|7C. The running of such prescriptive period may also be suspended as follows:
(1) By means of a written agreement between the taxpayer and the collector made prior to the lapse of such period.
(2) With respect to bankruptcy, for any period from the time the taxpayer files for bankruptcy until six months after the bankruptcy case is closed.
(3) By use of the mandatory arbitration procedure provided for in R.S. 47:337.51.1.
D. (1) The failure to file any return required to be filed by this Chapter shall interrupt the running of prescription, and prescription shall not commence to run again until the subsequent filing of such return. Once prescription commences to run, the tax, interest, and penalty, or other charge which is reported on such return shall prescribe in three years after the thirty-first day of December of the year of the filing of the return.
(2) However, if a taxpayer who does not file a tax return required to be filed by this Chapter later becomes responsible for the filing of such return due to a final court decision rendering a transaction or other activity as taxable, and the laws, regulations, or jurisprudence of this state previously classified that transaction or other activity as nontaxable, this provision shall not apply and prescription shall run as if the taxpayer had timely filed the return.
(3) The interruption of the running of prescription due to the failure to file a return reporting a tax shall not apply to any tax periods for which the collector and the taxpayer have entered into a valid and enforceable voluntary disclosure agreement.

Cajun’s First Refund Claim

Here, there is no dispute that Cajun filed returns and voluntarily paid the $195,965.09 it claims to have paid in sales and use taxes for the years 2007, 2008, and 2009. The first activity of record is Cajun’s refund claim for those three |syears, which was received by the Collector on December 28, 2010. There is no assertion by the Collector that any of the above-listed actions interrupting or suspending prescription occurred in this case prior to December 31, 2010, 2011, and 2012, the respective prescription dates. The Collector has not asserted fraud under this statute. Nor has there been an assertion of an amended return, which would also interrupt prescription. See Elevating Boats, Inc., 795 So.2d 1153. The Collector has acknowledged that La.R.S. 47:337.67 does not list a refund request as an action that can interrupt the prescription of a levied tax. Yet, the Collector asserts that Cajun’s first claim for refund on December 28, 2010, prevented the running of prescription and opened up the entire tax period for the Collector’s claims for taxes. We can find no statutes or jurisprudence stating that a refund request by the taxpayer interrupts prescription in favor of the Collector. However, La.R.S. 47:337.79(A) (emphasis added) clearly states that a refund claim interrupts prescription in favor of the taxpayer:

A. After three years from the thirty-first day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is the later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been received by the collector from the taxpayer claiming such credit or refund before the expiration of said three-year or one-year period. The maximum amount, which shall be refunded or credited, shall be the amount paid within said three-year or one-year period. The collector shall prescribe the manner of filing claims for refund or credit.

While the Collector asserts that allowing the taxpayer to seek a refund on some transactions without also allowing the Collector to audit the taxpayer’s other transactions for the same period is error, the legislature apparently intended the resulting effect. We believe this is because the taxpayer requesting a refund |flhas already paid his taxes, sometimes monthly, and the Collector is given adequate time, at least three years from each year’s end, to audit the taxpayer and assert a false return, make an assessment, file a pleading, or otherwise interrupt or suspend prescription under La.R.S. 47:337.67. This was not done here. Thus, the taxes paid by the taxpayer and received by the Collector for years 2007, 2008, and 2009 were facially prescribed after December 31, 2010, and the Collector has not met its burden of showing otherwise.

Offset Demand on Cajun’s Second Refund Claim

As to the Collector’s reconventional demand for offset on the 2010-2011 refund claim, the Collector’s action would not have prescribed until December 31, 2013-2014. Thus, Cajun’s May 10, 2013 court suit appealing the denial of the second refund claim interrupted prescription under La. R.S. 47:337.67(B)(3). The Collector’s re-conventional demand for offset under La. R.S. 47:337.78, filed in June, 2013, is valid as to those claims.

V.

CONCLUSION

Based upon the foregoing, we affirm the portion of the trial court’s judgment granting Cajun’s exception of prescription as to the Collector’s claim of offset against a refund of taxes paid in 2007, 2008, and 2009; we reverse the portion of the trial court’s judgment which strikes the Collector’s reconventional demand for offset against Cajun’s second refund claim on its 2010-2011 taxes. We remand the case to the trial court for a trial on the merits of both of Cajun’s 1 inrefund claims under the substantive statutes, La.R.S. 46:305, et seq., with instructions to allow the Collector to apply offset under La.R.S. 47:337.78 against Cajun’s second refund claim for 2010-2011. The costs of this appeal are to be shared equally between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Compensation takes place by operation of law when two persons owe to each other sums of money or quantities of fungible things identical in kind, and these sums or quantities are liquidated and presently due.
      In such a case, compensation extinguishes both obligations to the extent of the lesser amount.
      Delays of grace do not prevent compensation.
      La.Civ.Code art. 1893.

      . A. Before refunding any overpayment, the secretary may first determine whether the taxpayer who made the overpayment owes any other liability under any law administered by him. If such be the case, the secretary may credit the overpayment against such liability and notify the taxpayer of the action taken.
      B. No refund of income or franchise tax shall be paid by the secretary until any claim of offset filed by the administrator of the Louisiana Employment Security Law under R.S. 23:1733 has been satisfied.
      La.R.S. 47:1622.

      . See Elevating Boats, Inc., 795 So.2d 1153, where the parish ordinance required sales and use taxes, for example, for January of a given year, to be paid on February 20, with a prescription date three years later on December 31.