author: Judge TERRI F. LOVE.

text:
    James FOSHEE v. Crystal Watley FOSHEE.
    No. 2012-CA-1358.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2013.

      Gary S. Brown, Brown Weimer, LLC, New Orleans, LA, for Appellant/James Foshee.
    Ericka A.G. Windon, Southeast Louisiana Legal Services, New Orleans, LA, for Appellee/Crystal Watley Foshee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   Judge TERRI F. LOVE.

11 This appeal arises from a child custody dispute. The father sought to modify the joint custody arrangement and to be named the primary domiciliary parent. The father claimed in the motion for modification that the custodial mother’s intent to return to Africa with their daughter was not in the best interest of the child. After a trial on the merits, the trial court maintained the mother as the primary domiciliary parent. The trial court concluded that although “great good” would come from fostering a better relationship between the father and his child, removing the child from her primary custodial caregiver for the last several years was not in the best interest of the child. The father asserts that the trial court abused its discretion by failing to consider the factors set forth in La. C.C. art. 134 and to modify the child custody arrangement. We find the trial court properly considered the factors of La. C.C. art. 134, as demonstrated in the trial court’s oral reasons, and did not abuse its discretion in designating the mother as the domiciliary parent. Therefore, we affirm.

V,FACTUAL BACKGROUND AND PROCEDURAL HISTORY

James Foshee (“Mr. Foshee”) and Crystal Kigoni, formerly Foshee, (“Mrs. Kigo-ni”) are the parents to a daughter born on October 25, 2004. Mr. Foshee and Mrs. Kigoni were later married in 2005. Subsequently, Mr. Foshee filed a petition for divorce in 2007. In connection with the divorce, the parties entered into a consent judgment wherein both parties were awarded joint custody of the minor child. Mrs. Kigoni was designated as the domiciliary parent. At the time, Mr. Foshee was attending nursing school, and it was agreed that Mrs. Kigoni could take the minor child with her while she served as a missionary in western Kenya, Africa. The judgment further provided that Mr. Fosh-ee’s completion of nursing school would be considered a material change in circumstances for the purpose of allowing modification of the judgment. The parties were later divorced in 2009. Additionally, Mr. Foshee has completed his nursing studies.

Mr. Foshee filed a motion for emergency ex parte order of temporary custody of minor child and a motion to modify custody upon learning that Mrs. Kigoni and the minor child relocated to North Carolina. Prior to the hearing, the trial court signed an interim consent judgment setting out a visitation schedule for Mr. Foshee and his daughter. Following the trial on the merits, the trial court ruled that Mrs. Kigoni would remain the domiciliary parent of the minor child; however, the trial court ordered the parties to create a visitation schedule. Subsequently, Mr. Foshee filed a request for written reasons. He also filed a motion for new trial in |Rorder for the trial court to rule on Mr. Foshee’s visitation with the minor child. The record indicates that the trial court never ruled on the motion for new trial.

Mr. Foshee later filed a motion for de-volutive appeal of the trial court’s judgment designating Mrs. Kigoni the minor child’s domiciliary parent. After the trial court granted Mr. Foshee’s appeal and Mr. Foshee’s appeal was lodged in this Court, the parties entered into a consent agreement in August of 2012. In the agreement, the parties created a visitation schedule. Thus, before any hearing was held on the motion for new trial, the parties settled the visitation issues with the August 2012 Consent Agreement. Accordingly, Mr. Foshee’s appeal as to the child custody issue follows.

RIPENESS

In her appellate brief, Mrs. Kigoni claims that because Mr. Foshee signed the August 2012 Consent Agreement regarding the visitation issues and made pursuant to the trial court’s request for the parties to confect a visitation schedule, Mr. Foshee acquiesced to the trial court’s ruling designating Mrs. Kigoni as the primary domiciliary parent and thereby barring this appeal.

A review of the August 2012 Consent Agreement does not address the issue of domiciliary parent. The sole issue addressed in the consent agreement is visitation and physical custody, as the domiciliary parent is the issue of the present appeal. Additionally, Mrs. Kigoni admits in her brief that the consent agreement does not specifically label her as the primary domiciliary parent. Further, the issue of whether the present appeal is ripe for appellate review was previously addressed in Mrs. Kigoni’s motion to dismiss; which this court denied.

\ ¿STANDARD OF REVIEW

It is well-established that child custody determinations made by the trial court are “entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion.” McKenzie v. Cuccia, 04-0112, pp. 8-4 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 338. See also Watts v. Watts, 08-0834, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 855, 857.

Mr. Foshee argues that because the trial court failed to provide written reasons for its judgment addressing the applicable factors under La. C.C. art. 134 the recognized standard of review in a child custody case should not apply. However, it is a well-established rule that a trial court’s failure to provide written reasons is not grounds for reversing the judgment. Hall v. Folger Coffee Co., 03-1734, p. 4 (La.4/14/04), 874 So.2d 90, footnote 9. Further, the Louisiana Supreme Court in a discussion of the applicable standard of review stated, “the trial court is not required to expressly analyze each factor in its oral or written reasons for judgment.” Gathen v. Gathen, 10-2312, p. 12 (La.5/10/11), 66 So.3d 1, 9.

Although Gathen involved relocation, the Supreme Court’s conclusion applies here because the best interest of the child remains the standard governing the trial court’s modification decision. It follows that despite the trial court’s failure to expressly analyze each factor in oral or written reasons, the appropriate standard of review is that the trial court’s modification decision is entitled to great |5weight and will not be disturbed absent a clear abuse of discretion. Id., 10-2312 at p. 13, 66 So.3d at 9. Additionally, the Supreme Court acknowledged:

[A] trial court’s failure to expressly analyze each factor makes appellate review for abuse of discretion somewhat difficult. Most certainly an articulation of the trial court’s consideration of each of the factors would better facilitate appellate review. However, based on the reasons given, we can assume that the trial court discussed the factors it felt were decisive to the ease, and did not discuss the factors that it believed were not as important and should not be given much weight.... [T]he trial court is free to give whatever weight it deems appropriate to each of the factors. Thus, upon review, it is appropriate for a reviewing court to look to the reasons and factors the trial court did expressly take into account in reaching its ultimate determination, and, for the factors the trial court did not expressly discuss, it is appropriate for the reviewing court to determine whether the trial court’s failure to give weight to these factors led the court to abuse its discretion in reaching its ultimate determination....

Gathen v. Gathen, 10-2312, p. 13 (La.5/10/11), 66 So.3d 1, 10.

Accordingly, we find no merit to Mr. Foshee’s argument, and this Court on appellate review will review the facts particular to this case as presented at trial when determining whether the trial court abused its discretion. Our review follows.

MODIFICATION OF CUSTODY

A party seeking to modify the custody arrangement as provided in a consent judgment, “has the burden of providing (1) that there has been a material change of circumstances since the entry of the original decree, and (2) that the proposed modification is in the best interest of the [child].” Picou v. Picou, 08-0688, p. 4 (La.App. 4 Cir. 12/17/08), 1 So.3d 761, 763.

Mr. Foshee was required to show a material change of circumstance as part of his burden of proof. The original consent agreement provided a stipulation that Mr. Foshee’s completion of nursing school would be considered a material change in circumstance for the purpose of allowing modification of the judgment. Thus, | fibecause Mr. Foshee has since completed his nursing program, Mr. Foshee has satisfied the first element of his burden of proof.

DOMICILIARY PARENT

Mr. Foshee contends that the trial court failed to consider the best interest of the child when it designated Mrs. Kigoni as the domiciliary parent. To determine a custody arrangement that is in the best interest of the child according to La. C.C. art. 131, the court shall consider all factors as outlined in La. C.C. art. 134, including:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
17(12) The responsibility for the care and rearing of the child previously exercised by each party.

“The court is not bound to make a mechanical evaluation of all the statutory factors ... but should decide each case on its own facts in light of those factors.” Richardson v. Richardson, 07-0430, p. 21 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 775. As previously mentioned, the trial court is not required to give more weight to one statutory factor over another when making a determination regarding the best interest of the child in custody and visitation matters. Rather, the factors must be balanced and weighed in view of the evidence presented. Id.

A review of the record demonstrates that the trial court’s focus was over the good that would come with fostering a stronger relationship between Mr. Foshee and his daughter and how removing her from her mother’s primary care would impact the best interests of the child. Specifically, the trial court found:

[I]t’s a big tragedy what Mr. Foshee has lost in terms of contact with his child ... But when I go through all the criteria laid out in the Civil Code Article 134 concerning the best interests of the child, each parent has demonstrated a tremendous love, affection and effort to foster emotional ties with the child and with the other parent. I think that despite their differences and despite the tremendous hurdles of the distance, the physical distance between them, they have tried as best as possible to co-parent. And in terms of the occasional bickering among parents, married people do that all the time.
But I’m just so impressed with the love and hard work that both parents have done to take care of [their daughter]. The biggest stumbling block ... that I was looking for was the tremendous good that could come from fostering a closer relationship between [the minor child] and her father, was it worth breaking up a stable and happy relationship at the age of seven.

The trial court’s focus on these issues and its impact on the child’s best interests directed its decision to maintain Mrs. Ki-goni as the primary domiciliary parent.

|sIn view of the factors set forth in La. C.C. art. 134 and the trial court’s ruling, the trial court gave great consideration to “the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment,” as well as the “permanence, as a family unit, of the existing or proposed custodial home or homes.” See La. C.C. art. 134(4) and (5).

Since the termination of the parties’ relationship when the minor child was three years old, she has lived primarily with her mother. The minor is now eight years old and has lived with her mother abroad since 2007. Mr. Foshee alleges that due to the civil unrest in Africa and Mrs. Kigoni’s nomadic lifestyle as a missionary, their daughter has not had a stable or adequate environment in which to live.

To support this allegation, Mr. Foshee points to several emails and blog entries Mrs. Kigoni read in open court describing her experience as a missionary and the living conditions of African villagers. In an email communication to Mr. Foshee, Mrs. Kigoni describes the difficulty of finding the foods the minor child prefers to eat. In another communication, Mrs. Ki-goni describes how she and the minor child were unable to leave their housing “compound” for three days as a result of the violence in the area. There is also evidence that indicates that Mrs. Kigoni and the minor child lived in several places from December 2007 until they left Africa in November 2011. Notably, Mr. Foshee admits that Mrs. Kigoni and the minor child did not suffer the aforementioned hardships everywhere they lived, but Mr. Fosh-ee avers that Mrs. Kigoni’s choice to do missionary work in Africa does not offer their daughter a permanent and stable environment.

| ¡Acknowledging that the aforementioned evidence was presented, the record also indicates that the decision to designate Mrs. Kigoni the primary domiciliary parent in the original consent decree was made by both parties. Further, at the time the parties agreed to Mrs. Kigoni’s designation, Mr. Foshee was aware of Mrs. Kigoni’s plans to do missionary work. Additionally, Mr. Foshee praised Mrs. Kigo-ni’s efforts and ability to provide a stable environment for the minor child in light of the difficulties they encountered. In an email sent in May 2008, Mr. Foshee stated:

I do think you are doing well for the most part in caring for her. I told you that I am proud of how you have dealt with things thus far, and I meant that. Despite my previous fears about the village life, I understand that God had helped you through it. You two are healthy and experiencing an amazing life.

The record demonstrates that despite the nomadic lifestyle and difficulties Mrs. Ki-goni faced as a missionary, the trial court found that the minor child enjoyed a stable and adequate environment.

We also find that the trial court’s conclusion that maintaining the minor child’s family unit is supported by the record. Notwithstanding the difficulties Mrs. Kigo-ni witnessed as a missionary, the trial court found she maintained a strong family unit for the child. The minor child’s present family unit includes her step-father, Eric Kigoni, whom Mrs. Kigoni married in 2009, and the minor child’s older sister. In an email to Mr. Foshee, Mrs. Kigoni noted, “that [our daughter] has two daddies that she loves,” and “[she] and Eric are very close.” Mrs. Kigoni also testified that Mr. Kigoni plays an active role in the minor child’s academic and religious education. Likewise, the minor child has a formed a bond with her older sister.

|inBased on the evidence presented, the trial court determined that maintaining the permanence as a family unit of the minor child’s current custodial home was in the best interest of the child. The trial court noted, “that though [she] appears to have above-average intelligence, it’s very hard for a seven-year old to remember what life was like when she was four.” The trial court concluded that breaking up the minor child’s current family unit, moving to a new country and away from her “primary caregiver on a physical basis” for the past several years, is not in the best interest of the child.

With regard to the other factors set forth in La. C.C. art. 134, it is evident from the record that both parties have love, affection, and emotional ties to their daughter. Likewise, the record reveals both parties have the capacity and disposition to give the child love, affection, and spiritual guidance; to continue the education and rearing of their daughter; and in addition, to provide her with food, clothing, medical care, and other material needs. Both Mr. Foshee and Mrs. Kigoni testified at trial that financial strains and physical distance often made fostering communication between the minor child and her father difficult. The trial court noted that neither party has made a demand for child support because both parties recognize the high cost of travel between Kenya and the United States. Similarly, both parties testified that internet and telephone access is limited in certain parts of Africa where Mrs. Kigoni and the minor child have lived. Despite these difficulties, the evidence presented at trial demonstrates that both parties are willing and able to facilitate and encourage a close and continuing relationship between the minor child and the other party.

| ^DECREE

After review of all the evidence and testimony presented at trial and the great weight entitled to a trial court’s child custody determinations, we find the trial court properly considered the relevant factors set forth in La. C.C. art. 134. Further, we do not find the trial court abused its discretion in maintaining Mrs. Kigoni as the primary domiciliary parent.

AFFIRMED.

      . This provision in the original consent judgment is the basis for Mr. Foshee's motion to modify custody filed in the trial court.

      . Prior to meeting Mr. Foshee, Mrs. Kigoni had a daughter from a previous relationship.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of A.N.
    No. 2012-CA-1144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for the State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

hOn appeal, the juvenile, A.N., argues only that the evidence is insufficient to establish that the aggravated incest occurred after he turned fourteen years of age and, therefore, he should not be subject to sex offender registration and notification requirements upon release from custody. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the juvenile court.

Relevant Facts and Procedural History

At the beginning of the 2011-2012 school term, a creative writing instructor at Lusher Charter School (Brad Richard) received the following poem written by one of his ninth grade students (J.N.) as a part of a writing assignment:

The Touch
I feel your hands on me,
Even though I am asleep.
I can tell the next morning
When you have touched me that night.
I even wake up in the middle of it sometimes.
I have to hold back my screams and sobs.
I try and pretend like I’m still asleep
|2And kick you away from me.
Your words of I love you
Are just lies.
No brother with real love would do that to his defenseless little sister.
You’re a monster.
And I want you out of my life.
And as soon as I’m out of this house,
You will be.

On September 1, 2011, in accordance with school policy, Mr. Richard relayed the poem to the school social worker, Adrienne Petrosini. In turn, Ms. Petrosini spoke to the student, received confirmation from the student that she had been sexually abused by her brother, A.N., and called child protection services. That same day, Officer Stephanie Horae of the New Orleans Police Department (NOPD) child abuse division met with J.N. and accompanied her to the child advocacy center where she underwent a forensic interview conducted by Donald Dooley.

In the interview, J.N. related that she had been molested by her brother from age seven or eight to “about age eleven.” She described in detail the various acts of molestation that continued and “got worse” over a long period of time, stating that he would “make” her give him a “blow job” and, pinning her down, forced her to have anal sex four or five times. She also stated that he ejaculated in her mouth during oral sex. According to J.N., after her father saw her brother grab her buttocks when she was nine or ten years old, her parents kept a closer watch over them. It was not until January 2011, when she was “suicidal” and depressed, that J.N. told her mother of the molestation. However, her mother’s response was |sto wait several weeks to confront A.N. and then, when he denied the allegations, tell him he would have to move out of their shared residence. A.N. remained in his mother’s home for several more months before eventually moving into an apartment with friends. During the interim before he left, J.N. slept in her mother’s room.

Although J.N. told Mr. Dooley that she did not want to press charges against A.N., Officer Horae picked him up that evening and took him to the police station where she interviewed him. When asked if he knew why he was there, A.N. related that his mother had called to warn him and that, as he arrived at the police station, a relative who was an attorney was attempting to call him on his cell phone. A.N. readily admitted having sexual relations with his sister when he was thirteen or fourteen, “probably fourteen by then.” However, according to A.N., it was his sister (eight years old at the time) who initiated the sexual experimentation after she saw her parents having sex. A.N. explained that he had no friends or sexual experience so when his sister “wanted to try something” after looking it up on the internet and grabbed his penis, asking if it got bigger, “I caved.” Thereafter, according to A.N., the siblings devised games together to experiment on each other. A.N. stated in detail various acts which, according to him, were initiated by his sister. He did concede that he suggested that she perform oral sex on him, but insisted that she wanted “to try it.” According to A.N., their attempts at anal sex were unsuccessful. A.N. stated that when his mother first questioned him about the molestation because his sister “was having a nervous breakdown,” he denied it because he was embarrassed.

14Five days later, on September 6, 2011, J.N. underwent a second forensic interview at the Audrey Hepburn Care Center of LSU hospital. This time, in response to questioning, J.N. characterized the molestation as “technically” sexual abuse by her brother. When asked to explain, she stated:

It’s like, I mean they just like, it’s a technical term, and it’s just like I mean I guess it could be considered abuse, and I like, I want counseling, but it’s just I’ve forgiven and I moved on, and I feel like I just, I just kinda [sic] want it to be like over and just like bury the hatchet. Cause I mean he’s my brother....

Most notable, when questioned about when the molestation had occurred, J.N. insisted (contrary to her previous statement) that the molestation ended before her eighth birthday. She explained the discrepancy thus:

Um I was seven years old when it started, and it ended um after sometimes after Katrina and ba[sic], at the end a [sic] school. And then I had nightmares which made it seem really real. And that’s why when I was interviewed previously I said it was four years, but then like, I was like counting it back and it wasn’t, it was like a smaller gap and then I had nightmares.

Similarly, although J.N. again described oral and anal sexual encounters with her brother, she asserted that she did not “really remember” the details, insisting that her brother was “really a good kid” who was “always out there like looking out for everyone else,” even though as the oldest child he had been harshly punished by her father and had always been a “kind of a nerd” with no friends.

On December 29, 2011, the State filed a petition charging A.N. with one count of aggravated incest for engaging in sexual intercourse or sexual battery with his sister, J.N., for a four year period between July 25, 2004, and July 25, 2008. After entering a plea of not guilty, counsel for A.N. filed motions to quash the petition and to exempt him from sex offender registration or, in the alternative, to declare sex offender registration unconstitutional as it applies to a juvenile. The motions were denied and, prior to the commencement of the adjudication hearing |son March 19, 2012, the parties stipulated that the incest had taken place, disputing only the time period in which it took place and, therefore, whether A.N. should be subject to life-long sex offender registration and notification requirements.

The following facts were adduced at the hearing. Mr. Richard testified to receiving the poem and turning it over to Ms. Petrosini. In turn, Ms. Petrosini confirmed that she spoke to J.N. and then called child protective services. Officer Horae testified that she received the copy of the poem from Ms. Petrosini, took J.N. to the child advocacy center for her first forensic interview, and then picked A.N. up at his apartment and took him to the police station where she interviewed him. The audio statement given by A.N. to Officer Horae was then played for the court. On cross-examination, Officer Horae conceded that in the second forensic interview at LSU hospital, J.N. narrowed the time frame in which the molestation occurred.

Mr. Dooley testified as to his forensic interview with J.N. and the video of the interview was played for the court. Under questioning by the judge, Mr. Dooley reiterated that J.N. told him the molestation occurred when she was between the ages of seven and eleven.

J.N. testified, identifying her brother and conceding that Mr. Dooley had told her the interview would be recorded. Pursuant to defense counsel’s questions, J.N. stated that she remembered the events only and not the timing or sequence of events. She said that when she reported the molestation to her mother she was nervous about “[w]hat would happen to my family.” She agreed that she told Mr. Dooley that the molestation had occurred during a period of time between when she was seven to eleven but explained it was because she had not thought about the timing of events before she talked to Ms. Petrosini and, thus, gave Ms. Petrosini |fiher “best guess” as to the time period. Then, to be consistent, she repeated the same timeframe, ages seven to eleven, to Mr. Dooley. J.N. related that she changed the timeframe in the second interview because she thought about it during the interim and recalled that that the abuse occurred before she started at Audubon Charter School at age eight or nine years old. However, for a “very long time I would have vivid nightmares about reliving these abuse experiences” and “during the nightmares it was just me experiencing it, like, it was happening all over .again.” Accordingly, she agreed with defense counsel that her statement indicating that the molestation continued until she was eleven was a result of the nightmares seeming “real.” J.N. also related that when her brother moved out and shared an apartment with two other college students, she often slept at his apartment without incidents of abuse.

Under questioning by the judge, J.N. related that she wrote the poem because “other ways of coping” with the abuse no longer worked and she “knew that I needed help with it.” Although she was currently in counseling, it began only after the school relayed her poem to child protection services as, even upon being informed of the abuse, her mother failed to contact the police or arrange any type of counselor for her. Moreover, once her brother moved out of the house into an apartment with two male roommates and before she handed in the poem, her mother often drove her (a fourteen year old girl) to her brother’s apartment for overnight sleep-overs. She insisted, however, that she had no discussion with her mother pertaining to the sexual abuse investigation in the interim between the two forensic interviews. She related feeling “slightly guilty” about her brother’s arrest but admitted she wrote the poem because “I knew I needed therapy and I figured that I would be able to get it after this.” She said she was disappointed when her 17mother did nothing after being told of the abuse. However, because she feared getting her brother into trouble, she told no one else. She refused to speak to the DA about the case because they “didn’t care what I wanted in the case.” When asked what she wanted, J.N. stated that she felt only counseling was necessary as “I don’t feel that jail time or registration would be necessary in this case.” She asserted that she never discussed her brother’s potential sex offender registration with her parents but, rather, knew of it from the internet and the television series, “Law and Order.” She reiterated that she did not want her brother to have to register as a sex offender.

After listening to the evidence presented, the court adjudicated A.N. a delinquent, specifically stating that she found J.N.’s more detailed statement on September 1, 2011, the “most accurate and believable.” Further, the court found that A.N. was over the age of fourteen when the abuse occurred. Accordingly, at the disposition hearing on June 27, 2012, the court ordered that A.N. be placed in secure care until his twenty-first birthday and, upon release, register as a sex offender.

Discussion

On appeal, counsel assigns five overlapping errors but, rather than discussing them separately, submits to the court one long argument apparently devised to include all assignments of error. To the extent possible, we separate the arguments out in accordance with the purported errors initially assigned by counsel.

| ⅜Assignment of Error I

On appeal, appellate counsel first argues that the evidence is insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to prove that the aggravated incest occurred after A.N. turned fourteen years of age.

Pursuant to La.Rev.Stat. 14:78.1, aggravated incest is “the engaging in prohibited acts” with a person who is under eighteen and related, including a sister. The prohibited acts include sexual battery, second degree sexual battery, carnal knowledge of a juvenile (La.Rev.Stat.l4:78.1(B)(l)), as well as “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.” La.Rev.Stat. 14:78.1(B)(2).

The State’s burden of proof is the same in a juvenile adjudication proceeding as in a criminal proceeding, i.e., the State must prove every element of the alleged offence beyond a reasonable doubt. La. Ch.Code art. 883. We review a sufficiency of the evidence challenge under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and, accordingly, must determine “whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984) (citation omitted). “[A]n appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong” and “[w]here there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court.” In re A.J.F., 00-0948, p. 25 (La.6/30/00), 764 So.2d 47, 61 (citations omitted). Accordingly, if the factual findings “are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where there are two permissible views of the evidence, the fact finder’s choice cannot be clearly wrong and an appellate court may not substitute its opinion for that of the juvenile court judge “who is in the unique position to see and hear the witnesses as they testify.” In re A.J.F., 00-0948, p. 26, 764 So.2d at 62. Thus, absent internal contradiction or irreconcilable conflict with physical evidence, even a single witness’s testimony is sufficient to support a factual conclusion. See State v. Robinson, 02-1869, p. 16 (La.4/14/2004), 874 So.2d 66, 79.

In this case, there is no dispute as to whether the aggravated incest occurred, only whether A.N. was fourteen when it occurred. The victim stated in her first forensic interview (with Mr. Dooley) that she was molested by A.N. (who is almost five years her senior) from the age of seven to the age of eleven. The victim subsequently revised the time frame downward, stating that it occurred before her eighth birthday which, as a consequence, would put her brother under the age of fourteen at the time of the aggravated incest. However, even though the victim insisted no one had discussed the investigation or the ramifications of her brother’s age and, in fact, claimed that she became aware of the issue only through her own internet research and the television series “Law and Order,” the juvenile court judge found the first forensic interview the most believable and, therefore, the more credible. Moreover, on the same day that the victim told Mr. Dooley that the abuse occurred when she was age seven to eleven, A.N. told Officer Horae that |init occurred when he was thirteen or fourteen, “probably fourteen.” Clearly, there is sufficient evidence under the Jackson standard to support the trial court’s finding that the aggravated incest occurred when A.N. was fourteen years old.

Assignment of Error II

Similarly, appellate counsel asserts that the juvenile judge erred in ordering A.N. to comply with the sex offender registration and notification requirements as the crime occurred before his fourteenth birthday.

In accordance with La.Rev.Stat. 15:542(A)(3), a juvenile who had attained the age of fourteen at the time of the offense and has been adjudicated delinquent of aggravated incest is required to register as a sex offender. As discussed, supra, sufficient evidence supports the juvenile judge’s finding that A.N. was fourteen at the time of the offense. Accordingly, this argument is meritless.

Assignment of Error III

Next, appellate counsel argues that the juvenile judge erred in denying the defense’s motion to exempt A.N. from sex offender registration and notification requirements or, alternatively, in failing to conclude that La.Rev.Stat. 15:542 et seq., was unconstitutional as applied to an adjudication of delinquency.

First, counsel submits that in “requiring lifelong reporting,” the State has abandoned its role as parens patriae and has imposed punishment instead of focusing on rehabilitation, which is the focus of juvenile proceedings. In addition, counsel argues that the statute itself is unconstitutional as applied to a juvenile because it is punishment imposed without the constitutional due process of a jury trial.

Counsel misapprehends the purpose and intent of sex offender registration and notification requirements, however. The statutes underlying the registration | nand notification requirements, known generally as Megan’s Laws, are devised to provide parents with information of sex offenders in their neighborhood so that they may better protect their children from sexual predators. Accordingly, the registration and notification requirements are neither punitive in nature nor contrary to the State’s role in protecting those unable to care for themselves. See State ex rel. Olivieri v. State, 00-0172, p. 24 (La.2/21/01), 779 So.2d 735, 749 (concluding that Louisiana’s Megan’s Law is remedial and/or regulatory rather than punitive). Accordingly, this argument is without merit.

Assignment of Error IV

Finally, appellate counsel asserts that the disposition imposed is constitutionally and statutorily excessive to the extent it requires mandatory sex offender registration for life.

As previously stated, in accordance with La.Rev.Stat. 15:542(A)(3), a juvenile who was fourteen at the time of the offense and adjudicated delinquent of aggravated incest is required to register as a sex offender. This statutory requirement is not punitive in nature. Therefore, the requirement that A.N. comply with the law cannot be excessive. Moreover, even accepting arguendo that non-compliance with the statute was within the juvenile judge’s discretionary authority, the juvenile judge gave adequate reasons for her order, noting A.N.’s continued denial of wrongdoing, the family’s continued concern with the registration requirements rather than the harm done to J.N., and the failure of A.N. to begin therapy either before the adjudication hearing or during the four month interval between the adjudication and disposition hearings. In addition, the juve- ■ nile judge was clearly dismayed by the parents’ failure to report the abuse or seek counseling for their daughter before A.N.’s arrest, the subsequent reduction (after the 1 ^adjudication hearing) of J.N.’s therapy sessions to once a month, and the parents’ apparent lack of understanding as to the seriousness of the situation as evidenced by J.N.’s frequent unsupervised sleep-overs at the apartment of A.N. and his college roommates. This assignment of error is without merit.

Conclusion

The judgment of the juvenile court judge is affirmed.

AFFIRMED.

      . A.N.'s birthdate is May 13, 1992, and J.N.’s birthday is July 25, 1997. Accordingly, A.N. is almost five years older than his sister.

      . At the time of the interview, J.N. was fourteen.

      . At the time of the interview on September 1, 2012, A.N. was twenty years old.


author: MAX N. TOBIAS, JR., Judge

text:
    STATE of Louisiana v. Delmon MARZETT.
    No. 2013-KA-0274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge

|TOn 1 April 2011, the state charged the defendant/appellant, Delmon Marzett (“Marzett”), by bill of information with possession of cocaine, a violation of La. R.S. 40:967 C. He pleaded not guilty on 6 April 2011. On 12 July 2011, a hearing on the motions was held, and the trial court found probable cause and denied the motion to suppress the evidence. The defense objected and noticed its intent to seek supervisory review. Trial was continued several times and ultimately held on 13 March 2012. The six-person jury found Marzett guilty as charged. A pre-sentence investigation was ordered, and sentencing was set for 15 May 2012.

On that date Marzett filed a pro se motion for a new trial. On 13 September 2012, a hearing was held on the motion and denied. The defendant waived delays, and the trial court sentenced him to thirty months at hard labor; special conditions included the completion of the Blue Walters drug program. On 19 September 2012, the state filed a multiple bill. This timely appeal follows.

| STATEMENT OF FACT

At the 13 March 2012 trial, Officer Drew Deacon of the New Orleans Police Department (“NOPD”) testified that on 25 May 2011 he was part of the Sixth District Task Force. At about 4:55 p.m., he and his partner, NOPD Officer Jeffrey Yount, were on proactive patrol in the area of Simon Bolivar Avenue and Thalia Street. Officer Yount was driving, and turned southbound onto Thalia Street. The two officers observed what they believed to be a hand-to-hand narcotics transaction between the defendant and two other males. As they turned the corner, the two men, who were on foot, started to walk away from Marzett’s 2006 silver Volvo sedan. Officer Deacon said that he saw the defendant “making furtive movements towards the floor board of the vehicle.” Those movements suggested “that he’s possibly trying to hide something.” The officer stated that they noticed that there was an expired temporary license plate on the vehicle, and thus they decided to conduct a traffic stop. For the sake of safety, the officers asked Marzett to exit the Volvo. Officer Deacon approached the driver’s side of the car. Because of the furtive movements and the possibility that the defendant had hidden something that could harm the officers, Marzett was asked to exit the car.

Officer Deacon testified that as Marzett opened the car door, he saw in plain view in the door’s pocket “a small, orange, plastic cup that’s used to cover the plunger side of the syringe and inside that cap was a small, clear, plastic bag that |shad a white powder substance that we thought was cocaine.” As the defendant exited the car, the officers saw a loaded syringe (with a red substance thought to be blood) sitting on the driver’s seat. The officers told Marzett that he was being detained for narcotics violations. Officer Deacon said that the syringe containing blood indicated that Marzett was an intravenous drug user; other indicators of narcotics use were present that included a bandana wrapped around the defendant’s arm (being used as a tourniquet), dried blood on the inside of his elbow, and track marks with the darkening and the scarring of his veins. The officer said that the white powder tested positive for cocaine. Marzett was arrested, and Officer Yount advised him of his Miranda rights from a card.

On cross examination the officer clarified that all three men were not in the car, which was not moving; however, the car was running. Two men were standing outside the vehicle. The officer said that a temporary license plate could not be run through the computer. Officer Deacon could not say whether Marzett owned the Volvo, but he was inside the vehicle in the driver’s seat. He had not observed Mar-zett driving the car and he did not see the defendant put the evidence and contraband into the door pocket.

Officer Jeffrey Yount testified that he was on proactive patrol with Officer Deacon on 25 May 2011 at about five o’clock when he saw the defendant in the driver’s seat of a car and two men at the driver’s side window. The officer said that they “appeared to be possibly conducting a narcotics transaction.” The two men, who were outside the car, looked up, saw the police officers coming around the corner, and immediately walked away. Officer Yount stated that as they pulled |4up to the car, they noticed the expired temporary license plate. The officers pulled up almost next to the vehicle and they saw Marzett reaching toward the floorboard. For safety reasons the officers stayed back a little. According to Officer Yount, Officer Deacon approached the driver’s side, and he himself approached the passenger’s side of the car. The defendant, who was sweating profusely and seemed really nervous, had a blue bandana on his arm. When Officer Deacon asked the defendant to exit the vehicle for safety reasons, Officer Yount walked over to the driver’s side next to this partner. Marzett was placed in handcuffs and put into the back seat of the police car. Officer Yount stated that he issued Marzett three traffic citations for an expired license plate, no vehicle registration, and no driver’s license. The officer said that he advised Marzett of his Miranda rights before he was taken to lock-up. Officer Yount said that the fact that the two men outside the car walked away when they saw the police car making the turn had drawn their attention. The parties stipulated that the prosecution’s criminalist would have testified that on 1 April 2011 he received state’s exhibits one and two and that the items tested positive for crack cocaine.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

Marzett argues that the trial court erred by denying his pro se motion for a new trial based on the denial of his right to testify and that the ends of justice would be served by granting him a new trial. He claims that his trial counsel was ineffective because counsel prevented him from testifying and failed to subpoena his witnesses. Marzett’s appellate counsel claims that the record is sufficient to resolve the ineffective assistance of counsel claim on appeal. Counsel contends |5that the defendant consistently indicated to his trial counsel that he wanted to testify; he also asked counsel to subpoena the four witnesses who were there when he was arrested (but we find no defense request for subpoenas in the record on appeal). Appellate counsel claims that an ongoing argument at the defense table existed relating to Marzett’s demand to testify. Counsel argues that there are two notes from trial counsel showing the refusal to allow Marzett to take the stand; one of the attorneys even left the courtroom. The defendant argues that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he received ineffective assistance of counsel due to counsel’s preventing him from testifying and failing to subpoena witnesses, and he was prejudiced. He asserts that the ends of justice require that he be granted a new trial.

Contrariwise, the state contends that Marzett was not denied effective assistance of counsel. It argues that the defense attorneys’ decision not to call the defendant to testify or to subpoena the four alleged witnesses may have been sound trial strategy. At the hearing on the motion for a new trial, Marzett’s mother testified that the attorneys recommended that he not testify because the state could then ask about his prior conviction. It points out that Marzett did not put on the record the fact that he wanted to testify and failed to proffer what his testimony would have been or to what the four witnesses would have testified.

Prior to the hearing on Marzett’s pro se motion for a new trial, in which he argued that he was entitled to a new trial because: (1) he was denied his constitutional right to testify; (2) the verdict was contrary to the law and evidence; Rand (3) the ends of justice would be served by granting him a new trial, he claimed that his testimony would have contradicted the testimony of the two officers and there were two other suspects who were detained. To his motion he attached an exhibit A, allegedly Ms. Ruffin’s (his trial co-counsel) handwritten note on the case that contains a notation: “We are ok. Do not testify!” He also attached another exhibit, allegedly Mr. Kennedy’s (his trial co-counsel) notation to him, which states in pertinent part: “You want a chance at winning you need to sit there and not testify. So I’m asking you to please not testify. Please.” Because Marzett omitted the case number, he filed an amended motion and also asked for subpoenas to his parents, Brenda Mar-zett and Booker Washington, as well as his trial attorneys, Tanzanika Ruffin and Michael Kennedy.

At the 13 September 2012 hearing on the defendant’s pro se motion for a new trial, the trial court had an OPD attorney in court to assist the defendant should he need assistance. Ms. Megan Garvey stated that she originally thought that she was to represent the defendant, but she would be there to assist him. She made it clear that she had not reviewed the file and was not in a position to file motions on his behalf. The court asked Marzett if he still wanted to represent himself at the hearing, and he replied affirmatively. He agreed to let Ms. Garvey sit in. He called Ms. Ruffin to the stand; after she was seated, the trial court advised Marzett that an attorney/client privilege attached to anything he might have told his trial attorneys. The court stated that his attorneys could not testify to anything said during conversations or discussions before, during, or after his trial 17unless he expressly waived that privilege. Marzett decided not to waive the privilege, and Ms. Ruffin stepped down.

Marzett called his mother, Brenda Mar-zett, to testify. She stated that she was at the trial, and she witnessed what happened during the proceeding. When asked if she witnessed “everything pertaining to the confusion surrounding the defense table,” Ms. Marzett replied: ‘Tes, I did.” She testified that she overheard what was happening at the defense table. She testified:

Ms. Ruffin refused for you to take the stand because it would bring up your prior conviction and that the Judge had told her to stay within the bill of information. And [sic] after you asked her— after Michael [Mr. Kennedy] [sic] opening statement was that you had been in jail a whole year to the jury, after she made me go buy clothes for you to wear and only come out to say that you was in jail. So she told me that be grounds to — because it was a technicality.

Ms. Marzett acknowledged that she heard her son express to his attorneys that he wished to testify. When she was asked if he waived his right to testify, Ms. Marzett replied: “No, you didn’t.” She answered affirmatively when Marzett asked if he persisted throughout the trial in wanting to testify. Ms. Marzett said that “she stopped” the defendant, a reference to Ms. Ruffin.

Ms. Marzett further testified that Mr. Kennedy was out in the hall on his cell phone telling someone that the defendant was going to trial, which was not what Mr. Kennedy wanted. He said that by going to trial “he going [sic] open up all these Pandora Boxes.” She stated that the prior case in that same section of court had been a case where a woman killed her lover, and everyone was in an uproar. Ms. Marzett claimed that jurors were out in the hall. Her daughter called and said that a coworker (Ms. Janet) had called to say that she was out in the hallway that day. Ms. Janet said that her daughter was sentenced to two years for murder in | ^section H of court, and the next case in that section was a guy on a drug charge, where he was offered a plea bargain (six years). His lawyer said that if the accused did not take the plea bargain, the trial judge would not like that, and “it’s just all in an up rage.” Ms. Janet had told Marzett’s sister that the lawyer was unprofessional. Of course, that was the section of court where Marzett was being tried.

Ms. Marzett testified that Ms. Ruffin said that she was leaving the courtroom and said “let the record reflect that she refused to represent you if you take the stand, I think at that time she should have told you or withdrew from it. Let [sic] you had the right to not go forward with the trial.” She said that the jury was lined up outside when Mr. Kennedy was talking on his cell phone; the jurors heard that conversation. Ms. Marzett said that, according to what she was told, Mr. Kennedy said that if the defendant went to trial, he would be found guilty and get a life sentence.

Marzett said that he wanted to call one other witness, his father, Booker Washington, but his testimony would be the same as his mother. Mr. Washington was not called to testify.

Marzett argued that it was chaos from the time that he entered the courtroom. His attorneys tried to pressure him into taking the plea bargain; they tried to make him take the deal. When he refused, Ms. Ruffin got up and told him that he would be found guilty, and she did not want the strike on her record. Mr. Kennedy remained to handle the case. Mar-zett said that Ms. Ruffin returned and wrote on her pad: “We okay. Do not testify.” The defendant said: “Her trial strategy excluded me. She didn’t make me a part of the strategy. She felt my testimony and the evidence that I wanted to bring forth in trial, it didn’t make — it | ¡¡didn't matter. So she excluded me.” He said that Ms. Ruffin also continued to tell him to sit there and to be quiet; she said to sit there and “don’t testify.” Marzett produced the note where Ms. Ruffin clearly indicated that the defendant was not to testify. He obtained the notes when counsel left the courtroom. He claimed that he had four witnesses at the scene; he was not part of the stop, but when the officers found out he was on parole, they let the others go and put the charge on him. He also had a note from Mr. Kennedy that said that he was to sit there and be quiet; he had a fighting chance, but he should not testify. He was grateful that Mr. Kennedy had the written notes so that his attorneys could not deny what they did. He claimed that he just wanted to testify. Marzett argued that the ends of justice would be served if he were granted a new trial.

The trial court denied the motion for a new trial and stated that “this is obviously an issue that’s going to have to be reviewed on appeal if there is a claim by the defense that there’s ineffective assistance of counsel versus strategy decisions that were made during trial in this case.”

LAW AND ANALYSIS

In pertinent part, La.C.Cr.P. art. 851 states:

The motion for a new trial is based on the supposition that injustice has been done the appellant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the appellant, shall grant a new trial whenever:
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the appellant may not be entitled to a new trial as a matter of strict legal right.

In State v. Guillory, 10-1231 (La.10/8/10), 45 So.3d 612, the Court discussed reviewing a trial court’s ruling under La.C.Cr.P. art. 851(5):

We commence our analysis with the article pertaining to review of the motion for new trial, La.Code Crim. Proc. art. 858, which provides: “Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or refusal to grant a new trial, except for error of law.” ... [I]f the grant or denial of a new trial pursuant to La.Code Crim. Proc. art. 851(5) is a question of law, then the appellate or supervisory jurisdiction of the appellate courts and Supreme Court is properly invoked.
[T]he grant of a new trial pursuant to La.Code Crim. Proc. art. 851(5) does not involve questions of fact, but a determination by the trial court that the ends of justice would be served by a new trial even though the appellant may not be entitled to one as a matter of strict legal right. Although this court has stated on many occasions the grant or denial of a new trial under subparagraph (5) is un-reviewable, State v. Toomer, 395 So.2d 1320, 1328 (La.1981); State v. Matthews, 354 So.2d 552, 562 (La.1978); State v. Williams, 343 So.2d 1026, 1037 (La.1977); State v. D’Ingianni, 217 La. 945, 47 So.2d 731, 733 (1950), none of these decisions held it was unreviewable because it involved questions of fact. These cases held, with no analysis or rationale, that La.Code Crim. Proc. art. 851(5) is a ground upon which the trial judge may grant a new trial and that presents nothing for appellate review. Moreover, the D’Ingianni decision cited to State v. Willson, 215 La. 507, 41 So.2d 69, 70 (1949), which held subparagraph 5 of Article 509 of the 1928 Code of Criminal Procedure pertains solely to the trial judge and does not vest discretionary power in the Supreme Court to order a new trial in the absence of legal error. (Emphasis supplied.) There is no support for prior holdings that a trial court ruling under La.Code Crim. Proc. art. 851(5) is not subject to review.
We find our jurisprudence holding the trial court’s ruling on a motion for a new trial to serve the ends of justice is reviewable under an abuse of discretion standard comports with the role of this Court and the appellate courts to review questions of law in criminal cases. This Court held the question of whether the trial court abused its discretion in granting or refusing a new trial on the ground of serving the ends of justice presents |ua question of law, which should not be disturbed on review unless the trial court abused its great discretion. State v. Randolph, 275 So.2d 174, 177 (La.1973). This decision was not an aberration. State v. West, 172 La. 344, 134 So. 243 (1931) (motion for a new trial to serve the ends of justice reviewed for clear abuse of discretion); State v. Truax, 222 La. 463, 62 So.2d 643, 644 (1952)(this Court will not interfere with the determination of this issue unless the trial court arbitrarily abused its discretion).
In deciding whether the trial court in the matter before us abused its great discretion in granting a new trial solely on La.Code Crim. Proc. art. 851(5), we keep in mind two precepts. One, in this provision the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. State v. Bolivar, 224 La. 1037, 71 So.2d 559, 560 (1954). Two, “[t]he motion for a new trial is based on the supposition that injustice has been done the appellant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” La.Code Crim. Proc. art. 851; West, 134 So. at 244.

Guillory, 10-1231, pp. 2-5, 45 So.3d at 614-16. See also State v. McKinnies, 12-0335, pp. 7-9 (La.App. 5 Cir. 5/16/13), 119 So.3d 147, 2013 WL 2121353.

A defendant is entitled to effective assistance of counsel under U.S. Const. Sixth Amendment and La. Const, art. I, § 13. To sustain a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An error is prejudicial if it was so serious as to deprive the defendant of a fair trial; to prevail on a claim for ineffective assistance, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Stovall, 12-0014, p. 6 (La.App. 4 Cir. 10/17/12), 102 So.3d 994, 998.

Claims of ineffective assistance of counsel are more appropriately addressed through an application for post-conviction relief rather than on direct appeal. State v. Truitt, 500 So.2d 355 (La.1987). However, the claim may be addressed on direct appeal in the interest of judicial economy if the record contains sufficient evidence to decide the issue. State v. Peart, 621 So.2d 780 (La.1993); State v. McCarthy, 12-0342, p. 4 (La.App. 4 Cir. 3/27/13), 112 So.3d 394, 397; Stovall, 12-0014, p. 6, 102 So.3d at 998.

This court has previously recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4th Cir.1986)). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” Bordes, 98-0086, p. 8, 738 So.2d at 147 (quoting State v. Brooks, 505 So.2d 714, 724 (La.1987)).

Appellate counsel argues that the record is adequate to address the ineffective assistance of counsel claim, which was raised by Marzett in his pro se motion for a new trial and argued by the defendant at the hearing on the motion for a new trial. He also argued that the ends of justice would be served by granting him a new trial.

A defendant has a constitutional right to testify in his own defense. La. Const, art. I, § 16; State v. Dauzart, 99-3471, pp. 6-7 (La.10/30/00), 769 So.2d 1206, 1207-08 (citing Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). As to Marzett’s argument that he was denied his right to testify, the Louisiana Supreme Court has held that the denial of the right to testify after a criminal defendant unequivocally makes known his desire to do so is not amenable to a harmless error analysis. State v. Hampton, 00-0522, p. 10 (La.3/22/02), 818 So.2d 720, 727. See also State v. Dauzart, 99-3471, p. 5, 769 So.2d at 1210-11.

To determine whether a defendant’s right to testify was violated or waived by his silence, the Court in Hampton adopted two criteria from the case of Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.Puerto Rico 1998), affd, 201 F.3d 428 (1st Cir.1999). First, absent extraordinary circumstances, the court should not inquire into a criminal defendant’s right to testify. The court should assume that a criminal defendant, by not attempting to take the stand, has knowingly and voluntarily waived his right. Second, a defendant can only rebut the presumption by showing that his attorney caused him to forego his right to testify: (1) by alleging specific facts, including an affidavit by his trial attorney from which a court could reasonably find that the attorney told the defendant that he was legally forbidden to testify or in some similar way compelled him to remain [ ,4silent; and (2) by demonstrating from the record that those specific factual allegations would be credible. Hampton, 00-0522, pp. 14-15, 818 So.2d at 729-730. Cf., Johnson v. Cain, 712 F.3d 227 (5th Cir.2013).

In Hampton, Hampton’s trial attorney said that he controlled the decision as to whether Hampton testified, and the attorney refused to permit Hampton to testify. Hampton’s attorney realized twenty minutes later that he had made a mistake, and brought the mistake to the OIDP office’s attention. An application for post-conviction relief was subsequently filed, and a hearing was held. Hampton’s attorney testified that from day one, Hampton stated that he wanted to testify at trial. Hampton, 00-0522, pp. 8-9, 818 So.2d at 726.

Here, Marzett failed to make the showing required by Hampton. He claimed that he was denied his right to testify by his ineffective counsel, but he fails to show where in the record he demanded to take the stand, but was not allowed. At the hearing on his pro se motion for a new trial, his mother testified that his trial counsel refused to let him testify because the state could then question him about his prior conviction. According to that testimony, trial counsel made a trial strategy decision after Marzett had declined the plea bargain.

Marzett did not attempt to take the stand, and he failed to rebut the presumption acknowledged in Hampton. He did not waive his attorney-client | ^privilege so that Ms. Ruffin, whom he called to the stand, could testify. He did not allege specific facts that were acknowledged in an affidavit by trial counsel because he did not waive his privilege. Marzett did not make a showing of what happened before and during trial from which a trial court could reasonably conclude that the attorneys told him that he was legally forbidden to testify. The notes allegedly written by his trial counsel, Ms. Ruffin and Mr. Kennedy, which were exhibits attached to his motion for a new trial, do not prove that counsel absolutely refused to let him testify. In one note counsel asked Marzett not to testify and added “please” to the plea; the other note merely stated: “Do not testify.” Marzett has failed to carry his burden of proving an ineffective assistance of counsel claim under Strickland. He has not shown that the performance of his trial attorneys was deficient because they prevented him from testifying, and of course, he has not shown prejudice. As to counsel’s failure to subpoena the defendant’s witnesses, who were allegedly there on the street when he was arrested, he has provided no affidavits from the four as to what they would have testified (assuming that their names and addresses were known).

After a consideration of the two precepts set out in Guillory for an appellate court reviewing a trial court’s decision on a motion for a new trial under La.C.Cr.P. art. 851(5)(“ends of justice”), we find no palpable abuse of the trial court’s discretion, and Marzett has not shown that he suffered an injustice by the trial court’s denial of his motion for a new trial. The assignment of error lacks merit.

|,«CONCLUSION

We affirm the conviction and sentence of Delmon Marzett.

AFFIRMED.

      . Supervisory review of the decision was sought from this court and denied. State v. Marzett, 11-1115, unpub. (La.App. 4 Cir. 8/16/11), writ denied, 11-1849 (La.9/30/11), 71 So.3d 293.

      . On that date the judge tried the defendant’s misdemeanor case relating to drug paraphernalia, number 504-834, at the same time. The trial judge found Marzett guilty under La. R.S. 40:1023 and sentenced him to six months to run concurrently with the sentence in this case.

      . The trial court appointed an OIPD attorney to sit in at the hearing in order to assist the defendant in representing himself.

      .At the beginning of trial defense counsel informed the court that a deal had been made, but counsel wanted the defendant to talk to his parents, who were in court. Counsel noted that the state offered "a double and six....” The defendant spoke to his parents, but then rejected the plea agreement. The trial court noted that the defendant was offered “a plea bargain for a double bill and six years,” but he turned it down. The court asked Marzett on the record if he was rejecting the plea bargain, and he replied affirmatively. The defense declared that the defendant chose a jury trial.

      . The record contains no affidavits from any of the purported four witnesses.

      . The second basis is not mentioned on appeal.

      .We note the ambiguity in this notation and absence of any indication at precisely what point it was written. That is, the notation can be a reference merely to trial strategy.

        .Ibid., footnote 7.

      . In Hampton, 00-0522, p. 10, 818 So.2d at 727, the Court discussed a reason that trial counsel might not cooperate and let a defendant testify. The Court noted that the district court granted Hampton post-conviction relief, and the court of appeal reversed, relying on Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). The Court found that reliance misplaced and stated:
      In Nix, an ineffective assistance of counsel case, the issue was whether a criminal defendant’s Sixth Amendment right to counsel was violated when his attorney refused to cooperate after the defendant made known his intention to offer perjured testimony. Defense counsel testified:
      [W]e could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it ...
      I advised him that if he did do that it would be my duty to advise the court of what he was doing and that I felt he was committing perjury.

        Id. at 161, 106 S.Ct. 988.

        in the case sub judice, there was no indication the defendant wanted to perjure himself.

      . The third factor from Passos-Paternina was not adopted because it employs a harmless-error analysis.

      . In Hampton, 00-0522, pp. 10-11, 818 So.2d 720, 727, the Court stated:
      While we believe the Constitution and jurisprudence are well-settled in that a criminal defendant is guaranteed the right to testify in his own defense, we also believe a broad-based ruling has the potential of opening the flood gates for post-conviction relief petitions in virtually every case where the defendant did not testify. Our intention is to narrow the reach of the case sub judice and prevent frivolous claims.

      . We note the absence from the transcript at his trial on the narcotics charge of any notation by the court or counsel that Marzett wanted to take the stand to testify.