author: SAUNDERS, Judge. THIBODEAUX, Chief Judge,

text:
    Danielle Brooke THIBODEAUX, et al. v. ACE AMERICAN INSURANCE COMPANY, et al.
    No. 13-577.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 27, 2013.

      Mark Reese Pharr, III, Lindsay L. Mea-dor, Galloway, Johnson, et al, Lafayette, LA, for Defendants/Appellees, Ace American Insurance Company PSC Industrial Outsourcing, Inc. Sean M. Bohannon.
    Blake R. David, Broussard & David, L.L.C., Lafayette, LA, for Plaintiffs/Appellants, Myka Hatch Danielle Brooke Thibo-deaux Hatch.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

I,This is an automobile accident case involving a left-turning vehicle striking a passing vehicle established in the passing lane on a two-lane roadway. The jury allocated 53% of the fault to the driver of the passing vehicle and 47% of the fault to the driver of the left-turning vehicle and awarded damages accordingly.

We find the allocation of fault by the jury was erroneous when considering the record before us and the applicable statutes: La.R.S. 32:104, La.R.S. 32:73, and La.R.S. 32:75. We amend the jury’s judgment to allocate 100% of the fault to the driver of the left-turning vehicle. We affirm the remaining aspects of the jury’s judgment.

FACTS AND PROCEDURAL HISTORY:

On August 28, 2008, Danielle Brooke Thibodeaux Hatch (Hatch) (Hatch was married during the pendency of this case) was driving south on La. Highway 333 near its intersection with La. Highway 82 in a 2003 GMC model 1500 pick-up truck. As she proceeded southbound, Hatch approached, from the rear, a Ford F350 truck attached to a gooseneck, flatbed trailer driven by Sean Bohannon (Bohan-non). Passengers in the Ford F350 were then co-employees of Bohannon, Jarvin Flagg and Davon Dugas. Bohannon was driving while in the course and scope of his employment with PSC Industrial Outsourcing, Inc. (PSC). As Hatch attempted to pass the Ford F350, Bohannon attempted to make a left turn onto a private driveway. A collision occurred.

On October 3, 2008, Hatch filed a petition for damages on behalf of herself and her minor daughter, Myka Hatch (Hatch and Myka Hatch collectively referred to Plaintiffs), seeking medical expenses and damages for pain and suffering, loss of income, loss of earning capacity, and loss of enjoyment of life. Plaintiffs’ petition named as defendants Bohannon, PSC, and Ace American Insurance Company |2(Ace) as the insurer of the Ford F350 driven by Bohannon (Bohannon, PSC, and Ace collectively referred to as Defendants).

Plaintiffs alleged that Bohannon failed to make a lawful left turn, failed to keep a proper lookout for the vehicles passing lawfully on the left, failed to yield the right of way, failed to discharge a duty to a person in the capacity of Hatch, and any and all other acts of negligence and/or fault which may have been revealed at or before the trial of this matter.

On June 25, 2012, a jury trial to determine liability commenced. According to the testimonies adduced at this trial, Bo-hannon was driving his company’s white F350 truck and towing a utility trailer down Intracoastal Highway in Vermilion Parish, Louisiana. The trailer on the back of the truck was filled with equipment, completely obstructing his view through the rear view mirror. Hatch was also driving down the two-lane Intracoastal Highway with her two-month-old daughter on their way to pick up her then fiancé.

During the drive, Bohannon attempted to make a left turn into a private driveway. Bohannon stated that he had seen Hatch driving behind him on the Intracoastal Highway just before the turn, but he failed to see that she was in the process of passing him. Bohannon testified that, from the time he slowed to make the left turn until the impact, he never saw Hatch until the collision.

Bohannon stated in his deposition that Hatch must have been in his blind spot when he checked his side mirrors prior to attempting to make the left turn. Bohan-non clarified at trial that the blind spot he was referencing was behind the trailer, as he could not see behind the trailer because of the items being carried on the trailer and large tool box.

IsThe physical evidence at the scene indicated that Hatch had already established position in the passing lane before Bohan-non attempted to make the left turn. Upon making the left turn at the private driveway, the front of Bohannon’s F350 struck the front passenger-side fender and wheel of the pick-up driven by Hatch.

Louisiana State Trooper Dexter Bo-urque, an eighteen-year veteran trooper and certified accident reconstructionist for ten years with the Louisiana State Police, testified that based on all the evidence he could ascertain, it was clear that Hatch had control of the passing lane before Bo-hannon began his left turn into a private driveway. Trooper Bourque opined that Bohannon’s actions were the primary factor to the accident and testified that he cited Bohannon for failure to yield.

Defendants called no witnesses to allege that Hatch was not in control of the passing lane before Bohannon began to execute his left turn into a private driveway. Further, Defendants called no witnesses to allege that Hatch was at fault in any way.

After hearing all of the above testimony, the jury allocated 47% of the fault to Defendants and 53% of the fault to Hatch. Thereafter, a damages trial commenced.

At the damages trial, Plaintiffs introduced voluminous evidence of Hatch’s injuries and losses that she alleged were suffered as a result of this accident. In all, six of Hatch’s treating physicians testified. Since the accident, according to the evidence submitted by Hatch, she incurred $164,796.81 in medical expenses, two surgeries, and approximately 100 medical treatment visits.

14While the jury heard the testimony of Hatch’s treating physicians, it also heard the testimony of Defendants’ orthopedic expert, Dr. Douglas Bernard. He testified that all of Hatch’s diagnostic tests following the subject accident were read as normal, including an MRI taken in January of 2009, a second MRI taken in June of 2010, a myelogram taken in October of 2010, a CT scan taken in October of 2010, and a third MRI taken in February 2012. Testimony reflected that all of the independent radiologists who read this same film indicated that there were no abnormalities. Further, the diseogram performed by Dr. Steven Staires was negative, failing to recreate the pain that Hatch complained existed.

Dr. Bernard opined that Hatch may have suffered soft tissue injuries in her neck following this accident, but nothing more. He did not see any indication for the cervical surgery or for the continued diagnostic testing. Concerning her alleged carpal tunnel syndrome, Defendants’ expert neurologist, Dr. Rex Houser, testified that Hatch’s diagnostic testing and subjective complaints were consistent with cubi-tal tunnel syndrome, not carpal tunnel syndrome. Cubital tunnel syndrome is caused by compressing a nerve in the elbow by leaning on it while driving or working. Therefore, Dr. Houser opined that the left carpal tunnel release performed by Dr. Blanda was also unnecessary.

Additionally, Dr. Houser testified that he did not believe that Hatch suffered from seizures as a result of the accident, noting that she may not suffer from seizures at all. Given Hatch’s descriptions of her incidents with dealing with this issue, Dr. Houser believed she was likely suffering from fainting episodes which were not caused by this accident. He further indicated that Hatch underwent three EEG studies, all of which were read as normal.

IfiDr. Houser’s opinion was supported by the records of Dr. Diana Fernandez, who evaluated Hatch for seizures immediately following the accident. Dr. Fernandez opined that Hatch’s symptoms were likely related to anxiety and panic and possibly syncope (fainting).

Defense expert psychiatrist, Dr. Rennie Culver, also testified that he agreed with Dr. Houser’s finding that Hatch had preexisting anxiety. Further, Dr. Culver found that Hatch did not fit the criteria for Post-Traumatic Stress Syndrome. Finally, Dr. Bernard testified that, in his view, Hatch suffered a non-surgical soft tissue injury.

After hours of deliberation, a jury awarded Hatch the following:

A. Past Medical Expenses $40,000.00
B. Future Medical Expenses $10,000.00
C. Past Loss of Earnings $6,000.00
D. Future Loss of Earnings or Impairment of Earning Capacity $0.00
E. Past Physical and Mental Pain and Suffering $40,000.00
F. Future Physical and Mental Pain and Suffering $7,000.00
G. Loss of Enjoyment of Life, Past and Future $15,000.00
TOTAL: $118,000.00

Plaintiffs filed a motion for judgment notwithstanding the verdict and a motion for new trial, both of which were denied. Plaintiffs now appeal the liability and damages verdict of the jury alleging four assignments of error.

ASSIGNMENTS OF ERROR:

1. The jury committed legal error in determining liability by misapplying Louisiana law to these facts and finding Brooke Hatch 53% at fault in the accident. Alternatively, the jury verdict was an abuse of its discretion, clearly wrong, manifestly erroneous and devoid of reason.
|fi2. The jury committed legal error in determining amount of past and future damages: the jury found that Brooke Hatch’s injuries lasted for four years and will continue into the future, but failed to award the damages proved at trial; the quantum awarded in compensatory damages was so inconsistent and contrary to the evidence as to constitute legal error and must be increased. Alternatively, the jury verdict was an abuse of its discretion, manifestly erroneous, clearly wrong, and devoid of reason.
3. The jury committed legal error in failing to follow this [cjourt’s instruction relative to uncontradicted and treating [ejxpert [tjestimony.
4. The jury committed legal error in failing to follow this [cjourt’s instruction relative to the Housley presumption.

ASSIGNMENT OF ERROR NUMBER ONE:

In their first assignment of error, Plaintiffs contend that the jury committed legal error in determining liability by misapplying Louisiana law to these facts and finding Hatch 58% at fault in the accident. We find merit to this assignment of error.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, stated that the standard of review applicable to comparative fault determinations is as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96); 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

As such, it is clear that a fact finder’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The findings of fact made by a jury will not be disturbed unless they are manifestly erroneous or clearly wrong. Id. 17“Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

The factors to consider in an appellate review of an allocation of fault were addressed by the Louisiana Supreme Court in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985). Therein, the supreme court stated:

[Vjarious factors may influence the degree of fault assigned, including: (l)whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id. at 974.

These factors are also relevant to an appellate court’s determination when ascertaining the highest or lowest percentage of fault that could reasonably be assessable to the respective parties. Clement, 666 So.2d 607. This court, in applying Clement, stated:

[T]he allocation of fault is not an exact science, nor is it the search for a precise ratio. Rather, much like that of quantum assessment, allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot violate the manifest error standard of review. When we look to the applicable laws and standard of review, this court is to make a determination of whether any reasonable person could have made the allocation of fault that the jury made under the facts of this case.

Layssard v. State, Dep’t of Pub. Safety and Corrs., 07-78, p. 4 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1058, writ denied, 07-1821 (La.11/9/07), 967 So.2d 511.

The duty of a left turning vehicle is governed by La.R.S. 32:104. Louisiana Revised Statutes 32:104(A), applicable to this case, states:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety-

The duty of a vehicle passing on the left is governed by La.R.S. 32:73 and La.R.S. 32:75. Louisiana Revised Statutes 32:73(1) states, in pertinent part, that, “the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” Louisiana Revised Statutes 32:75 states:

No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.

This court, in Kilpatrick v. Alliance Casualty Reinsurance Co., 95-17, pp. 4-5 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, 66, writ denied, 95-2018 (La.11/17/95), 664 So.2d 406, interpreted and applied the applicable law as follows:

Louisiana jurisprudence holds that the left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers. Neal v. Highlands Ins. Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (La.1993).
Ic/The law sets forth the duties imposed on a left-turning driver as well as a passing driver. The duties imposed upon a left-turning motorist are found in La.R.S. 32:104. Under this statute, [the left-turning driver is] required to give a signal of his intent to make a left turn at least 100 feet before reaching [the road in which he intends to travel after making the left turn]. In addition to giving the proper signal, [the left-turning driver is] required to make a proper observation that the turn could be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872 (La. App. 2 Cir.), writ denied, 318 So.2d 57 (La.1975). The onerous burden placed upon a left-turning motorist is not discharged by the mere signaling of an intention to turn. The giving of a signal, ... is immaterial if at the time the driver of the turning vehicle did not have the opportunity to make the turn in safety. Husser v. Bogalusa Coca Cola Bottling Co., 215 So.2d 921 (La.App. 1 Cir.1968).
Finally, in a vehicular collision case, the plaintiff [attempting to pass the left-turning vehicle] may take advantage of a presumption of the defendant’s negligence when the plaintiff proves the defendant executed a left-hand turn and crossed the center line at the time of impact. Thomas v. Champion Ins. Co., 603 So.2d 765 (LaApp. 3 Cir.1992). Accordingly, the burden rests heavily on the motorist who desires to make a left turn to explain how the accident occurred and show he is free of negligence. Miller v. Leonard, 588 So.2d 79 (La. 1991).
The law equally imposes a duty upon the passing motorist. This duty is specifically set forth in La.R.S. 32:73 and 32:75. Based on these statutes, the jurisprudence holds that the driver of a following or overtaking vehicle must be alert to the actions of motorists preceding him on the highway. Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165 (1945). More particularly, the driver of an overtaking or passing vehicle has the duty to ascertain before attempting to pass a preceding vehicle that from all the circumstances of traffic, lay of the land, and conditions of the roadway, the passing can be completed with safety. Palmieri v. Frierson, 288 So.2d 620 (La.1974).

In the case before us, the jury found Hatch 53% at fault for the accident and Bohannon 47% percent at fault. After a thorough review of the record, we find no evidence to support a finding that Hatch had any fault in the accident.

Trooper Bourque testified that, prior to the accident, Hatch was attempting a passing maneuver in a legal passing zone. Further, Trooper Bourque testified that Hatch had control of the passing lane and that she was not speeding. Finally, |inaccording to Trooper Bourque, Bohan-non should have been able to see Hatch prior to attempting to make his left turn, and he issued a citation to Bohannon.

Hatch testified that neither the brake lights nor the turn signal were illuminated by the Bohannon vehicle at the point in time that she could or should have seen them. Bohannon testified that his trailer’s lights were working properly and that he did illuminate his signal light. Trooper Bourque corroborated that the trailer lights were functional, and the passengers in the Bohannon vehicle corroborated that Bohannon did have the turn signal illuminated prior to attempting to make the left turn.

Defendants rely heavily on this assertion regarding an illuminated signal light. However, there is no evidence at what point in time that Bohannon illuminated his signal light. Contrarily, it is clearly indicated by the testimonies of Trooper Bourque and Hatch that she had legally established herself in the passing lane pri- or to impact. Once Hatch was established in the passing lane, she was entitled to complete her legal maneuver, and whether Bohannon’s signal was illuminated is irrelevant. Under the circumstances presented in this case and the complete lack of evidence as to when Bohannon may have illuminated his signal light, we find no reasonable basis to attribute any fault to Hatch.

Moreover, while Bohannon testified that he checked his mirrors twice before making his left turn, he also stated the following:

Q So you’re saying your side mirror could see all the way down that oncoming lane backwards, right?
A Yes, sir.
Q But then you made this turn and you never saw her until she actually impacted your vehicle?
A Yes, sir.
InQ But [if] you could see the entire lane[,] how couldn’t you see her before she hit your vehicle?
A Whenever you’re making a turn you’re looking at where you’re turning to. You’re not going to be looking at the lane that the traffic would passing you on.

After reviewing the testimonies in the record thoroughly, we find that the record is completely devoid of any evidence that Hatch had any fault in this accident. Given the heightened duty placed upon a left turning vehicle under La.R.S. 32:104, we find that the only reasonable allocation of fault under the circumstances present in this case is that Bohannon was 100% at fault for the accident. Accordingly, we amend the jury verdict to allocate 100% of the fault to Bohannon.

ASSIGNMENT OF ERROR NUMBER TWO:

Plaintiffs assert in their second assignment of error that the jury committed error in determining the amount of past and future damages. We do not agree.

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
... The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted). Additionally, the applicable standard of reviewing special damages is that of manifest error. McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671.

The jury heard the testimony of Hatch’s treating physicians as well as the Defendants’ experts. Dr. Bernard testified that all of the diagnostic testing performed on Hatch over three and a half years after the accident were normal. He testified that while it is possible that Hatch suffered a soft tissue injury from this accident, it was unnecessary for her to undergo most of the diagnostic testing, and unnecessary for her to undergo the single level cervical fusion based on his physical examination of her, her medical records, and her diagnostic films. Further, Dr. Houser testified that the carpal tunnel surgery was unnecessary based on his physical examination and review of Hatch’s medical records.

The jury was presented with this information, along with the Hatch’s own testimony of the activities she continued to engage in, such as getting married, giving birth to a child, dancing, socializing, tubing on the river, riding in Mardi Gras parades, undergoing elective cosmetic surgery, consuming alcoholic beverages, and riding on boats.

Plaintiffs urge that the jury’s findings were clearly wrong based on assumptions of what arguments the jury accepted. There is no way for this court to determine what arguments the jury accepted or rejected.

Additionally, despite Plaintiffs’ contentions, the jury is not obligated to make a choice between an amount of damages suggested by either side of the litigation. We find no abuse of the “much discretion” afforded to the jury, nor do we find any manifest error by the jury. Youn, 623 So.2d at 1260. As such, we find this assignment of error is without merit.

| ^ASSIGNMENT OF ERROR NUMBER THREE:

Next, Plaintiffs contend that the jury committed legal error in failing to heed instruction relative to uncontradicted and treating expert testimony. This contention lacks merit.

“Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part.” Green v. K-Mart Corp., 03-2495, p. 5 (La.5/25/04), 874 So.2d 838, 843 (citations omitted).

Plaintiffs’ argue that the opinions of their experts, Randy Rice and Glenn Hebert, for future medical expenses are un-contradicted, thus, the jury must award Hatch for these future medical expenses. This argument is not correct.

In assignment of error number two, we upheld the jury’s damage awards. In doing so, we pointed out that there was ample evidence in the record to find that Hatch needed no future medical treatment for injuries sustained to her neck or left wrist. Additionally, Dr. Houser opined that Hatch’s anxiety episodes were not related to the subject accident, and Dr. Culver agreed with Dr. Houser and testified that Hatch’s panic disorder pre-exist-ed the subject accident.

Thus, the evidence presented to the jury supports a finding that Hatch’s psychological counseling with Dr. LeCorgne, neurological treatment for seizures with Dr. Karim, and medications for her psychological needs and neurological needs are not compensable damages caused by this accident. The jury could have found that Hatch’s anxiety had been exacerbated by this accident, and, therefore, awarded a smaller than requested monetary award for future medication or treatment.

| uRice, an economist, and Hebert, a vocational rehabilitation expert, relied upon the recommendations of Hatch’s treating physicians to calculate their numbers. If the jury reasonably rejected the view that all of the injuries complained of by Hatch were related to the accident, it can reject the damages proposed by Rice and Hebert. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER FOUR:

In their final assignment of error, Plaintiffs assert that the jury committed legal error in failing to follow instruction relative to the Housley presumption. This assertion is misguided.

In Housley v. Cerise, 579 So.2d 973, 980 (La.1991) (quoting Lucas v. Insurance Co. of North, America, 342 So.2d 591 (La. 1977)), the supreme court determined:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Plaintiffs base this assignment of error on their contention that Hatch met the requirements under Housley, and, as such, she is entitled to recover any and all damages that she or her treating physicians aver are related to the accident. This is not how the Housley presumption operates.

The Housley presumption addresses causation. It does not mandate that if a jury believes an accident has caused an injury, it must also award all medical expenses and all damages that any treating physician asserts is related to that injury. Once a jury has evaluated the credibility of the expert testimony and all evidence | ^presented, it is free to quantify damages as it deems appropriate. Causation of-damages and quantification of damages are two different concepts. The Housley presumption only addresses causation.

While all of the evidence presented indicates that Hatch was injured as a result of this accident, there was sufficient evidence that Hatch was not injured to the extent she claimed and, therefore, did not require that the jury award her for all of the treatment and damages she sought. Accordingly, we find no merit to this assignment of eiTor.

CONCLUSION:

Plaintiffs, Danielle Brooke Thibodeaux Hatch and Myka Hatch, raised four assignments of error. We find merit in the first, that the jury’s allocation of fault was in error. As such, we amend the trial court’s judgment to reflect that Sean Bo-hannon is 100% at fault for the accident. We find no merit to the remaining assignments of error raised. All costs of these proceedings are to be divided evenly between the parties.

AFFIRMED, AS AMENDED.

THIBODEAUX, Chief Judge, concurs in part, dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

Concurring In Part & Dissenting In Part.

|!While I concur with the majority on the apportionment of fault, I disagree with its assessment of damages.

Curiously, the majority focuses the greater part of its analysis on the testimony of the defendants’ physicians, all of whom were hired for litigation purposes, not for medical treatment. The third circuit has explained that “[i]t is well settled that the testimony of an attending physician should be accorded more weight and probative value than that of a physician who has made an examination solely for the purpose of giving expert testimony regarding a patient’s condition.” Streeter v. Sears, Roebuck and Co., Inc., 533 So.2d 54, 70 (La.1988), writ denied, 536 So.2d 1255 (La.1989) (citations omitted).

The accident occurred on August 28, 2008. The defendants’ physicians upon whom the majority relies did not examine Ms. Hatch until thirty months post-accident. One of those physicians, Dr. Culver, has been the subject of less than complimentary comments in Fontenot v. Wal-Mart, 08-158 (La.App 3 Cir. 3/4/09), 5 So.3d 298, writ denied, 09-0770 (La.5/29/09), 9 So.3d 165. Despite Dr. Bernard’s assertion of a soft-tissue injury lasting for five to 12six months and resolving by January 2009, Ms. Hatch was treated by her neurosurgeon at least six times in 2009.

Dr. Wael Karim, Ms. Hatch’s neurologist, confirmed her injury utilizing pinprick sensation in the cervical C5-C6 area. This injury manifested itself through at least 2011. Dr. Steven Stakes confirmed a disc tear at C5-C6 in January 2011, two years after Dr. Bernard speculated that Ms. Hatch should have recovered.

All six of Ms. Hatch’s treating physicians confirmed and testified regarding her objective injuries. All related her injuries to the accident. The defendants presented no evidence of a superseding or intervening cause; indeed none existed.

The jury obviously placed little weight or gave no credence to the defendants’ assertion of a minimal soft-tissue injury. It awarded $10,000.00 in future medicals, thus indicating some need for future medical intervention. Yet it failed to award her documented past medical expenses of $164,796.81. This was manifest error. The past medical expenses in the amount requested should have been awarded.

Given the greater degree of weight that should rightfully be accorded to physicians who actively treated Ms. Hatch, the jury was manifestly erroneous as well in its award of general damages. I would amend the judgment and award $150,000.00 in past physical and mental pain and suffering; $50,000.00 in future physical and mental pain and suffering; and $30,000.00 in loss of enjoyment of life.

For the foregoing reasons, I respectfully dissent in part.


source: Caselaw Access Project

author: PICKETT, Judge. PETERS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Jessie James DUPLANTIS.
    No. 13-424.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 27, 2013.
    Rehearing Denied Jan. 8, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District, Ted L. Ayo, Assistant District Attorney, Abbeville, LA, for Plaintiff/Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Jessie James Duplantis.
    Jessie James Duplantis, Angola, LA, pro se.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

| .FACTS

H.C. was referred for counseling with Rachel Hinton, a licensed professional counselor and licensed marriage and family therapist. H.C. indicated to Ms. Hinton he had been inappropriately touched by his brother and one time by the defendant, his mother’s boyfriend. Ms. Hinton stopped the questioning and notified H.C.’s Office of Child Services (OCS) worker.

Nicholette Joseph testified at trial as the representative of Hearts of Hope, a children’s advocacy center. She interviewed H.C. on June 2, 2010, when H.C. was six years old. The state played the videotaped interview to the jury over the defendant’s objection. On the video, H.C. said he could not live with his mom because she had a boyfriend, Jessie James Duplantis, the defendant, who did “mean things.” H.C. first said the defendant touched his private four times, and his brother Blake touched him four times. He said the first time the defendant touched him, he was four years old; the last three times, he was three. H.C. first said the defendant touched him “all over on the private,” keeping his hand still. Then he said the defendant touched his private with a paddle with H.C.’s clothes on and again with his hand with H.C.’s clothes off.

After H.C. made those comments, he asked to “start all over.” He pointed to where he said the defendant touched him, and this time, he said the defendant moved his hand. Ms. Joseph presented H.C. with a forensic drawing of what H.C. described as a boy with no clothes. Ms. Joseph told H.C. the boy had no clothes on | ^because he just got out of the bathtub. H.C. circled the area where he said the defendant touched him, and he called it his “bird.” He said the defendant touched his skin inside his clothes. His mother and brother were at home when this occurred. When asked what room of the trailer, where they lived, these acts occurred, H.C. answered only, “in the trailer.”

When Ms. Joseph asked H.C. if he had told his mom, aunt, and granny about what happened, H.C. nodded and said “they got mad.” He felt bad that he could no longer talk to the defendant. Toward the end of the interview, H.C. said he was in the bathtub when the defendant came in, touched his private, and “that was it.”

H.C. also testified at trial after the trial judge questioned him about the difference between the truth and a lie. He was nine years old and in the fourth grade at the time of trial. H.C. used to live with his biological mother, Valerie Chauvin, and the defendant was her boyfriend. When H.C. looked around the courtroom twice, he testified he did not see the defendant. He then identified the defendant.

The defendant objected and asked for a mistrial. Apparently, someone in the audience made a comment defense counsel thought influenced H.C. Regarding H.C.’s identification of the defendant, the record states:

Q Do you see Mr. Jessie in the courtroom? Look around.
A I don’t see.
Q You looked all over? You need to stand up to look?
A I don’t see him.
Q You don’t see him?
A No.
Q You still don’t see him anywhere?
| sA Right there (indicating).
Q Okay. Where are you pointing? What color shirt does he have on?
A White.
Q Does he have a tie or does he not have a tie?
A He does.
BY [the State’s counsel]: Let the record reflect that he’s pointing to the defendant wearing a tie.
BY [Defendant’s counsel]: May we approach?
BY THE COURT: All right.
(WHEREUPON, THE FOLLOWING WAS TAKEN AT A SIDEBAR OUT OF THE HEARING OF THE JURY.)
BY [Defendant’s counsel]: I need it reflected for the record that I wanted to do this out of the presence of the jury because I didn’t want to point it out any further to them, but the child only pointed out the defendant after he stood up and after at least one of the ladies, who’s directly behind me — and although I almost always have tunnel vision for these kind of things — even I could hear her say where he was sitting and what he was wearing.
BY THE COURT: I could hear something, but I couldn’t tell what was said.
BY [the State’s counsel]: I didn’t see it; I’m sorry.
BY [Defendant’s counsel]: I could hear it and that’s unusual for me.
BY THE COURT: I think Autumn might have heard it, too, because her eyes got real big after the lady made a remark.
BY [the State’s counsel]: You want me to ask her to come up?
BY THE COURT: You want her to come over?
BY [Defendant’s counsel]: Well, I think the damage is done now. So I think I have no choice but to ask for a mistrial.
BY THE COURT: It would be whether the boy heard her, though.

|40n further questioning, H.C. commented “he thought [the defendant] was going to be in handcuffs and his handcuffs the legs, too. [sic] But he was kind of sad that — it wasn’t a dream, no.” When asked if he heard anyone in the room tell him where the defendant was situated in the courtroom, he replied the state’s counsel had told him “to look better and then I didn’t see him. Then I looked, then I saw.”

H.C. testified the defendant stayed at the trailer with him and his mother “[sometimes].” When asked whether the defendant ever stayed at the trailer with H.C. by himself, H.C. responded, “I guess.” H.C. testified the defendant “did something that he wasn’t supposed to do ... He did something wrong and then he got in trouble ... Touched something that he wasn’t supposed to ... The private.” They were in the bathroom; H.C. “was taking a bath and [defendant] just — he just did it on purpose.” H.C. did not need help cleaning his “private.” This happened “[l]ike maybe once — one time.” H.C. did not recall if he had ever told anyone it happened more than once.

The defendant’s girlfriend, H.C.’s natural mother, was Valerie Chauvin. Valerie’s brother and his wife, also named Valerie, adopted H.C. in 2011. H.C. referred to the women as his “old mom” and his “new mom.” His new mom told him to “tj]ust tell the truth and don’t lie” about the touching incident.

The trailer where H.C. lived was in the same yard as his grandmother, “Granny Betty.” His older brother, Blake, also lived in the trailer; H.C. said Blake was thirteen. H.C. sometimes took baths at Granny Betty’s house. H.C. testified his memories were “kind of old and fuzzy.” He further testified that he did not have a conversation with his brother, Blake, about the incident. On crossjexamination5 he stated he did not remember a conversation with Blake, then stated he had no conversation about his testimony with his older brother. During follow-up with the state’s attorney, H.C. said it was true that the defendant touched his private, his mom and dad just told him to tell the truth, and he was telling the truth then.

Keith Bedwell, the defendant’s probation officer, testified he had supervised the defendant after he pled guilty to two counts of indecent behavior with a juvenile on April 3, 2006. One of the charges dealt with behavior in 1996. Mr. Bedwell also testified the defendant pled guilty on November 2, 1992 to carnal knowledge of a juvenile. He believed the defendant lived in a trailer in Abbeville with his wife, Valerie, at the time of the probation supervision. One of the rules of the defendant’s probation was to have no contact with juveniles; no juveniles could visit or come inside “the place that he was registered as a sex offender.” The trial judge instructed the jury to consider that information only for the limited purpose of whether it tended to show a lustful disposition toward children.

The defendant’s wife, Valerie, testified at trial. The couple was married on June 18, 2010. Valerie lived in a FEMA camper in 2007 and 2008. The defendant lived with his mother in 2006, with Terry Bes-sard in 2007, and with Valerie’s parents in their home from January 8, 2008 to March 3, 2008. She said the defendant never lived with her at her parents’ home because of the orders of the defendant’s probation officer. Valerie understood the defendant was not to live with H.C. She testified the defendant spent time with Valerie’s children only “[w]ith other adult supervision,” and he was never alone with H.C. She further | (¡testified that she bathed H.C. at her parents’ home because their FEMA trailer had no hot water.

Although Valerie knew about the defendant’s first conviction, she did not consider him to be a sex offender until “[a]fter his second charge.” H.C. was taken from Valerie’s care because someone reported to OCS the defendant had babysat him; Valerie testified the defendant “did not babysit [her] children.”

Blake Bourque, H.C.’s half-brother, was fifteen at the time of trial. Blake testified he lived with H.C. “[f]rom the day [H.C.] was born to 2007,” and the defendant lived with Blake’s grandparents. To Blake’s knowledge, the defendant was never alone with H.C. The defendant started coming around in 2007, after H.C.’s dad died on August 17, 2007.

Blake testified that at a get-together at his great-grandmother’s home earlier in the year, H.C. pulled Blake aside and said he wanted to talk to him. Blake said H.C. was about to cry, and he told Blake “he had been lying ... about the whole situation about [the defendant] touching him.” H.C. said his uncle had really done it. Blake testified he asked H.C. if he had talked to his adoptive parents about it. H.C. said he had, and “[t]hey didn’t say nothing.”

Frank Duplantis, the defendant’s brother, testified he saw the defendant “[p]retty much everyday” in 2007 and 2008 while the defendant was staying with their mother. He said the defendant was not staying in the FEMA camper with Valerie. Frank said he never saw Valerie’s children at his mother’s house. He believed he would know if the defendant had been alone with the children, and he had not been to Frank’s knowledge. On cross-examination, Frank testified he was 17“[n]ot a hundred percent” sure the defendant had not been alone with the children, but he was “pretty sure he wasn’t.”

Timothy Duplantis, also the defendant’s brother, testified the defendant had “just got out of jail” in 2007 and 2008. He first lived with their mother and then “rented a little apartment” in town. The defendant returned to his mother’s house, then moved to Bessard’s house. He never lived with Valerie during that time, and he was not alone with Valerie’s children. Several other witnesses, including Valerie’s father and the defendant’s mother, also testified other adults did not live in Valerie’s home, and the defendant was not alone with Valerie’s children.

Valerie Chauvin, H.C.’s adoptive mother, testified H.C. “[n]ever, never” told her his uncle, and not the defendant, touched him. H.C. never said he had a conversation with Blake on this topic. Ralph Chauvin, H.C.’s adoptive father, testified the same.

The defendant was indicted on September 14, 2010, for the sexual battery of H.C. in violation of La.R.S. 14:48.1. The indictment was amended on January 14, 2011, to allege the offense occurred between November 2007 and January 2008. A jury rendered an eleven-to-one verdict and found the defendant guilty as charged on September 12, 2012. The trial court sentenced the defendant to life imprisonment, with the first twenty-five years without benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

I. The State failed to present sufficient evidence to support the verdict, a conviction of sexual battery.

2. The admission of evidence of convictions of other crimes was error in this case.

[83. It was error for the Trial Court to allow a recorded interview of the minor child the subject of this proceeding to be introduced over objection when the recorded interview was not provided to the Defense prior to trial during discovery.

4. The verdict of the jury in this case is unconstitutional since it was not unanimous.

5. The sentence of life imprisonment is unconstitutionally excessive.

Pro Se Assignments of Error:

1. Petitioner contends that the indictment was not brought in open court by the grand jury which is a violation of his fourteenth amendment of the United States Constitution as well as Article 1 Section 2 of the Louisiana Constitution of 1974, and all relevant statutes thereof.

2. The trial judge erred in denying a mistrial over the defense counsel objection on the reference during the opening statement by the State to the convictions of the defendant.

3. The trial judge erred in allowing the state to introduce three DVD’s video’s [sic] over the defense counsel[’s] two objections.[ ]

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

The record does not indicate that the trial court advised the defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform the defendant of the provisions of article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

[SUFFICIENCY OF THE EVIDENCE

The defendant argues the evidence presented was insufficient to support the verdict. He contends the other witnesses who testified the crime occurred all obtained their information from H.C., who was only four years old at the time the offense allegedly occurred and nearly six when he made the accusations during the Hearts of Hope interview.

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 insuring 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 Iml270 (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 finders 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 factfinders 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.

In this instance, “[sjexual battery is the intentional ... touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender” when the victim “has not yet attained fifteen years of age and is at least three years younger than the offender!;.]” La.R.S. 14:43.1(A)(1). The state’s case was based on the alleged event where the defendant touched H.C. inappropriately while H.C. was in the bathtub.

“[T]he testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical evidence.” State v. Simon, 10-1111, p. 7 (La.App. 3 Cir. 4/13/11), 62 So.3d 318, 323 writ denied, 11-1008 (La.11/4/11), 75 So.3d 922 (citing State v. Leyva-Martinez, 07-1255 111 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La.1/30/09), 999 So.2d 747). In Simon, the advocacy center video showed the victim said the defendant touched her inappropriately, and she used a diagram to circle the body part he allegedly touched. She also recounted the events in her trial testimony. This court upheld the defendant’s conviction, noting “[t]he jury heard all testimony in this matter and obviously found [the victim]’s version of the events credible. That credibility determination should not be second-guessed by this court.” Id.

In State v. Cavazos, 11-733 (La.App. 4 Cir. 5/16/12), 94 So.3d 870, writ denied, 12-1372 (La.10/26/12), 99 So.3d 645, and writ denied, 12-1438 (La.10/26/12), 99 So.3d 645, the defendant was convicted of sexual battery and failure to register as a sex offender. The victim was his girlfriend’s eight-year-old daughter. She testified the defendant touched her inappropriately on multiple occasions. She told her physician of the incidents, but she could not recall when they occurred during a forensic interview. A few days later, the victim told a child advocacy center physician the defendant had touched her and hurt her. The record contained no evidence to refute her claim. The fourth circuit held the evidence was sufficient to support the conviction.

In State in Interest of R.A., 11-440 (La. App. 4 Cir. 11/2/11), 101 So.3d 957, the victim testified the juvenile defendant, her cousin, committed sexual battery on her when she was seven or eight years old. She was thirteen at the time of the adjudication hearing. An advocacy center representative testified the victim indicated the juvenile had touched her inappropriately and committed other inappropriate acts while they were at the homes of the victim’s relatives. A statutorily compliant video, however, was not submitted into evidence. The |12victim’s trial testimony was inconsistent about her age at the time of the incidents, and she could not pinpoint dates on which they occurred.

The victim’s aunts testified the victim and the juvenile were at their homes on multiple occasions, but the children were never alone. They did not have access to the upstairs bedrooms, which were kept locked. The juvenile’s door was never closed, and the adults constantly checked on the children in his room.

On appeal, the fourth circuit found it was “very close as to whether, viewed in the light most favorable to the prosecution, the evidence is sufficient to convince a rational trier of fact that the juvenile committed the offense charged.” Id. at 963. Nevertheless, the fourth circuit recognized it could not “substitute [its] opinion for that of the juvenile court judge who was in the unique position to see the witness testify” and determine whether she did in fact identify a body part that was inappropriate for the juvenile to touch. Id. The appellate court affirmed the juvenile’s adjudication.

Here, the jury obviously believed H.C.’s testimony. It had the opportunity to assess H.C.’s credibility and the credibility of his brother, his mother, and the other witnesses. It concluded the defendant was guilty as charged. The defendant argues H.C.’s testimony is inconsistent with the statement he gave in the interview he gave at Hearts of Hope. We have reviewed both the video statement and the victim’s court testimony. We find these statements, when taken as a whole, are consistent enough for a reasonable finder of fact to find his testimony credible. The jury believed H.C.’s testimony regarding the offense. Applying the Jackson standard of review we find there is sufficient evidence to support the jury’s finding of guilt.

|,¡¡OTHER CRIMES EVIDENCE

The defendant contends the trial court erred by admitting evidence of his prior convictions for other crimes. He believes the only way the jury was convinced of his guilt was through evidence of the prior convictions.

Louisiana Code of Evidence Article 412.2(A) allows such evidence in order to “indicate a lustful disposition toward children” when the defendant “is charged with a crime ... involving a victim who was under the age of seventeen at the time of the offense[.]” The evidence may still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice!.]” La.Code Evid. art. 403. While the defendant objected to the admissibility of the evidence at trial, he did not make any objection regarding the failure to conduct the balancing test of article 403, as he does on appeal.

The trial court allowed evidence of the defendant’s guilty pleas to two counts of indecent behavior with a juvenile, made in 2006. The factual basis of the plea in one count was that the defendant “engaged in the commission of any lewd or lascivious act upon the person or in the presence of a child whose date of birth was 9/1 of 1985 where there was an age difference of greater than two years[.]” The factual basis in the second count was that, “during the year 1996, [the defendant] engaged in a lewd or lascivious act with a child whose date of birth was September 1, 1985, when there was an age difference of greater than two years[.]” The pleas showed the defendant’s date of birth was February 4, 1970.

The trial court also allowed evidence of another guilty plea on November 2, 1992. This conviction was for carnal knowledge of a juvenile. The factual basis of the plea was “that between January 1 and December 25, 1989, [Defendant] did have sexual intercourse with a female, date of birth January 17, 1978, when he was |14beyond the age of seventeen (17) years with an age difference of more than two (2) years between the parties.”

In allowing the evidence, the trial court relied on State v. Williams, 11-876 (La. App. 5 Cir. 3/27/12), 91 So.3d 437, writ denied, 12-1013 (La.9/21/12), 98 So.3d 334. In Williams, evidence of the defendant’s prior conviction of carnal knowledge of a juvenile was allowed in his trial on the charge of molestation of a juvenile. The victim was a nine-year-old girl who alleged the defendant touched her inappropriately on top of her clothing. The victim in the prior conviction was a thirteen-year-old girl with whom the defendant had intercourse. The trial court found the cases were sufficiently similar for the evidence to be admissible under La.Code Evid. art. 412.2(A), and the passage of time since the prior conviction did not call for exclusion of the evidence. The fifth circuit affirmed the decision.

This court allowed evidence of other crimes in a case of an aggravated rape/aggravated battery of an adult in State v. Archield, 09-1116 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972. The defendant was previously convicted of aggravated battery and molestation of a juvenile. The trial court allowed evidence of “three sexually assaultive acts, crimes, or wrongs” to show the defendant’s intent in those instances to have sexual relations with victims without their consent. Id. at 445. At a hearing to determine admissibility of the evidence, the trial court determined the evidence was admissible under La.Code Evid. art. 412.2. Even though the evidence was prejudicial, it met the balancing test of the article. This court found other evidence corroborated the prior victims’ testimony and confirmed the defendant’s identity as the perpetrator. Considering the limiting instruction the trial court gave the jury 11fiand the jury’s acquittal of the defendant on a second aggravated rape charge, this court determined the jury was not confused or misled by the other crimes evidence.

The trial court here gave the jury a limiting instruction immediately after evidence of the prior convictions was admitted:

Evidence that the defendant was involved in the commission of offenses other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show a lustful disposition towards children. Remember the accused is on trial only for the offense charged. You may not find him guilty of his offense merely because he may have committed another offense.

The instructions given to the jury at the conclusion of the trial included the same language.

The evidence of prior crimes showed the defendant’s lustful disposition toward children. This instance, showed the fourth time the defendant was involved in committing a sexual act on a child. Considering the trial court’s limiting instruction, the trial court did not err in allowing evidence of the prior convictions.

RECORDED INTERVIEW OF THE VICTIM

The defendant argues the trial court erred by allowing H.C.’s recorded interview to be introduced over objection when the recorded interview was not provided to the defense prior to trial during discovery. The defendant’s pro se brief contends the trial judge erred by allowing not only the video of H.C.’s interview, but also a video of the defendant and a video of Valerie Chauvin, into evidence. The record shows all three videos were “placed with the Clerk of Court for safekeeping” to allow the custodial witness to return to his job while other testimony took place. Only the video of H.C. was introduced into evidence and shown to the jury. Thus, the defendant’s argument applies only to that video.

| ^Reginald Reed of the Vermilion Parish Sheriffs Department testified he received the three sealed DVD interviews from Sergeant James Gleason, including the video of H.C.’s interview at Hearts of Hope. Defense counsel objected, arguing she was never given that video. The trial court agreed counsel “should have been given” the video.

The state, however, argued defense counsel knew about the video because it was part of the open file discovery. The state’s attorney told the trial court he had talked to defense counsel about the video the week of the trial, asked if her client had viewed it, and asked if she wanted to view it. The state said defense counsel “said no.”

The defendant’s counsel disagreed, however, contending she had “nagged [the state’s counsel] repeatedly if they had any protected person video and was consistently told they did not have it.” The state’s counsel argued the open file discovery included “talk about the interview,” and a witness told of conducting it. Additionally, the police report referred to the interview and the recording of it. Thus, the state’s counsel contended defense counsel had notice of the need to file a motion to obtain the video. Nevertheless, correspondence dated February 15, 2011, referred to only two videos, those of the defendant and Valerie.

The trial judge found defense counsel had received discovery that included “referrals to the existence of that video.” He allowed a recess during which defense counsel viewed the video. The trial judge cited La.R.S. 15:440.5, allowing the video to be admitted when the defendant has the opportunity to view it before it is offered into evidence. The video was then shown to the jury and introduced into evidence over the defendant’s objection.

| 17On appeal, the defendant contends “[t]he time to review and prepare for HC’s DVD interview was so minimal that the fairness of this proceeding is highly questionable.” However, the defendant never sought a continuance or a mistrial on grounds he was unable to adequately prepare for trial because counsel had not seen the video. He offers no indication of how he would have prepared differently for trial had he viewed the video earlier or how that supposed preparation would have affected the jury in his favor. He does not identify any particular prejudice that re-suited from not viewing the videotape earlier. He simply contends it was unfair. Because the defendant has not shown any manner in which prejudice resulted or suggested how it may have influenced the verdict, any error concerning the introduction of the video into evidence is harmless.

NON-UNANIMOUS JURY VERDICT

The defendant argues the non-unanimous jury verdict was unconstitutional. The jury convicted the defendant by an eleven-to-one verdict. The defendant acknowledges the present law requires ten jurors to concur in a verdict. Nevertheless, he urges this court to remand his case “for a new trial in which only a unanimous verdict will be accepted.”

After closing arguments, the trial judge instructed the jury “[a]t least ten members of the jury must concur to reach a verdict in this case,” as provided by La.Code Crim.P. art. 782. The defendant did not object to the jury instructions. In fact, prior to the reading of the instructions to the jury, the trial judge asked if both counsel were “good with the instructions[.]” The defendant’s attorney responded, “[t]he defense is fine with them.”

When the verdict was announced at trial, the defendant requested polling of the jury. The record indicates that was done, the jury was dismissed, and the trial | isjudge ordered a pre-sentence investigation and denied the defendant’s request to set bond. The defendant never raised any objection to the verdict or contested its constitutionality.

A defendant must raise the constitutionality of a statute in the trial court. State v. Hatton, 07-2877 (La.7/1/08), 985 So.2d 709. The defendant never raised the constitutionality of La.Code Crim.P. art. 782 or any other statute in the trial court. Thus, he may not raise it for the first time on appeal. Uniform Rules— Courts of Appeal, Rule 1-8. Further, the Louisiana Supreme Court has repeatedly held La.Code Crim.P. art. 782 to be constitutional. State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738; State v. Jones, 381 So.2d 416 (La.1980); State v. Simmons, 414 So.2d 705 (La.1982); State v. Edwards, 420 So.2d 663 (La.1982). This assignment of error lacks merit.

EXCESSIVE SENTENCE

The defendant contends his life sentence, with the first twenty-five years without benefit of parole, probation, or suspension of sentence, is excessive. Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant to make or file a motion to reconsider his sentence within thirty days of imposition of the sentence. A defendant who fails to make or file such a motion is precluded from raising any objection to the sentence on appeal. State v. White, 03-1535 (La.App. 3 Cir. 4/28/04), 872 So.2d 588; State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324.

The defendant here did not object to his sentence or file a motion to reconsider in the trial court. Although he argues on appeal the trial court erred by not considering the factors of La.Code Crim.P. art. 894.1, this issue was not raised |19in the trial court and “cannot be raised for the first time on appeal.” State v. Hebert, 08-542, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 688, 690.

In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the sentencing hearing and did not timely file a motion to reconsider sentence; thus, this court found his excessive sentence claim was barred. See also State v. Fletcher, 00-968 (La.App. 3 Cir. 12/6/00), 776 So.2d 1240, writ denied, 01-342 (La.12/14/01), 803 So.2d 986; State v. Charles, 00-1611 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420; State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59. Based on these cases, we find the defendant waived his right to seek review of his sentence.

At the time this offense occurred, La. R.S. 14:43.1 provided a sentencing range of twenty-five years to life imprisonment, with the first twenty-five years to be served without benefits, where the offender was age seventeen or older and the victim was under the age of thirteen. Thus, the defendant received a legal sentence. This assignment of error lacks merit.

PRESENCE OF GRAND JURY MEMBERS

The defendant argues the grand jury indicted him, but the minutes do not indicate that any members of the grand jury were present during the return of the indictment, that the minute clerk polled the grand jury members, or that the members concurred in the indictment. He cites State v. Pitts, 39 La.Ann. 914, 3 So. 118 (1887), in support of his argument. This issue was not raised in the trial court and may not be raised for the first time on appeal. Uniform Rules — Courts of Appeal, Rule 1-3.

| ^IMPROPER OPENING STATEMENTS

The defendant contends the trial court erred in denying his request for a mistrial when the state referred to his prior convictions during its opening statement. The state’s attorney stated:

Officer Keith Bedwell is expected to testify as to his job with Probation and Parole, how he was in charge of supervising the defendant who has three prior convictions. These convictions are as follows: Under Docket Number 26530, Vermilion Parish, Louisiana, the defendant, Jessie Duplantis, pled guilty to the crime of carnal knowledge of a juvenile who was roughly eleven years of age at the time of the offense. Under Docket numbers 41848 and 41849, Jessie Du-plantis pled guilty to two counts of indecent behavior with a juvenile, whose age was ten or eleven at the time of the offense.
Ladies and gentlemen, the Honorable Judge will give you an instruction that the evidence of these three convictions is to be considered only for the limited purpose that they show the defendant’s lustful disposition to children under the age of thirteen.

The trial court, later in the proceedings, held the evidence of the prior convictions to be admissible. A defendant is generally not entitled to a mistrial when the prosecution’s opening statement refers to evidence later ruled inadmissible. State v. Green, 343 So.2d 149 (La.1977). Clearly when the evidence to which the state referred in its opening statement is later deemed admissible there is no error. The state merely told the jury about evidence it planned to introduce, and it did. The defendant’s argument lacks merit.

| ⅞1 CONCLUSION

The defendant’s conviction and sentence are affirmed. The trial court is directed to inform the defendant of the provisions of article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

AFFIRMED. REMANDED WITH INSTRUCTIONS.

PETERS, J., dissents and assigns written reasons.

PETERS, J.,

dissents.

|TI agree with the summary of the evidence set forth in the majority opinion. However, I disagree that any rational trier of fact could have found that the State of Louisiana (state) proved beyond a reasonable doubt that the defendant committed the offense of sexual battery, even when “viewing the evidence in the light most favorable to the prosecution[.]” 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).

Any offense against a child is as a particularly heinous crime, and sexual battery is no exception. In the context of this case, sexual battery occurs when a person touches “the ... genitals of the victim ... using any instrumentality or any part of the body of the offender” with the criminal intent to do so. La.R.S. 14:43.1(A). Additionally, with regard to a child under the age of fifteen who is touched by a person more than three years older than that child, consent is not a defense. La.R.S. 14:43.1(A)(2). However, every touching of the genitals of a child is not a sexual battery. Louisiana Revised Statutes 14:43.1(B) provides in pertinent part that “normal medical treatment or normal sanitary care shall not be construed as an” act of sexual battery.

12Evidence of the criminal intent element in this case is totally absent. Additionally, no physical evidence links the defendant to this offense, and a jury convicted him based solely on H.C.’s confusing, disjointed, and inconsistent testimony together with the erroneously introduced evidence of the defendant’s criminal record.

In the videotaped interview, H.C. expressed mixed emotions concerning the relationship between his family and the defendant. On the one hand he suggested that he was no longer living with his mother because the defendant had done some “mean things,” and on the other hand expressed a belief that the boyfriend/girlfriend relationship between the defendant and his mother was not a bad thing. With regard to the defendant’s actions, he was equally contradictory. At first, he told Ms. Joseph that the defendant touched him “all over on the private” but that he kept his hand still. However, later in the interview, he changed his story to suggest that the defendant moved his hand as he was touching him. Additionally, H.C.’s story to Ms. Joseph concerning the number of times and the manner in which the defendant allegedly violated him varied significantly. Early in the interview, H.C. told Ms. Joseph that the defendant had also touched his private parts with a paddle through his clothing, and later that the defendant had touched his skin inside his clothing. H.C. told Ms. Joseph that when this latter incident occurred, both his mother and half-brother were present in the trailer. Finally, late in the interview H.C. told Ms. Joseph that he was in the bathtub when the defendant came in, touched his private parts, and “that was it.”

H.C.’s recitation of the facts was not only internally inconsistent within the interview, but was also different from his trial testimony. In the interview, H.C. asserted that the defendant had touched his private parts four times, and at trial he ^testified that the offense only occurred once. Additionally, although he suggested in the interview that he was alone in the trailer with the defendant, when questioned at trial concerning whether he was ever alone in the trailer with the defendant, he responded with the equivocal comment, “I guess.”

At trial, H.C. testified that the defendant touched him in his private area “[l]ike maybe once — one time.” Additionally, he could not recall if he told anyone that it happened more than once, nor did he recall telling anyone that it never happened at all. The former statement conflicts with the videotaped account given to Ms. Joseph, and the latter conflicts with the trial testimony of Blake Bourque. Blake, who was fifteen years of age at the time of trial, testified that H.C. had pulled him aside at a family gathering in 2012 and told him that “he had been lying ... about the whole situation about [the defendant] touching him.” According to Blake, H.C. was about to cry and told him that an uncle had been the one who actually touched him. When questioned concerning any discussions with Blake, H.C. initially denied having talked to Blake about whether the defendant touched him. Then he changed his testimony to say that he had talked with Blake a couple months before trial, but could not remember whether Blake asked him if the defendant really touched him or if he had told Blake that others were telling him what to say. However, he continued his answer by saying, “I don’t think I did. I don’t remember or not.”

When asked at trial about his statement to Ms. Joseph that the defendant had touched his private parts with a paddle, the following exchange took place:

A. My old mom almost whipped me with a paddle, I think, maybe a spoon or something. My new mom whips me with a spoon, a wooden spoon.
|4Q. Do you remember telling anybody anything about being touched with paddles in your private area?
A. I don’t think — wait; no. And pretty much that’s it.
Q. I guess I didn’t understand. Do you remember telling somebody you were touched in your private area with a paddle?
A. I don’t — no, I didn’t.
Q. You didn’t tell anybody about that?
A. I told y’all about it.
Q. Who is “y’all?”
A. Everybody in the judge — I mean, in the courtroom.
Q. When did you do that?
A. Today I think. Yeah, today.

With regard to how he might have been influenced by others in presenting his testimony, H.C. stated at trial that his adoptive parents had told him to simply tell the truth. At the same time, H.C. seemed to be concerned about the possibility of being returned to his biological mother, and in response to questions stated that he “like[s] staying with [his] new mom and dad” and “want[s] to stay with them a whole lot until [he is] a grownup. He stated that he was' “kind of worried” about having to return to his mother and commented that he was “trying to say what I need to stay with my new mom and dad, not to go back over there.”

In addition to the internal consistencies in H.C.’s pretrial statements and trial testimony, other witnesses contradicted his version of specific events. H.C. asserted that he and the defendant were alone when the offense occurred, yet his biological mother, her father, the defendant’s mother, and two of the defendant’s brothers all testified that the defendant was never left alone with him. Valerie testified that she and her children lived in the FEMA trailer in 2007 and 2008, and |sthat the defendant never lived with her during that time. According to Valerie, the defendant, because of his probation requirements, spent time with her children only “[w]ith other adult supervision.”

Even the question of where the bath took place was the subject of contradiction. When H.C. was asked if he always took a bath in the trailer or if he sometimes took a bath somewhere else, he responded, “[o]nly one time I think I did. I think; I don’t know.” Not only was the testimony unclear as to whether he took a bath in the trailer only one time or somewhere else one time, but at another time he stated that sometimes he took baths at his grandmother’s house. With regard to this issue, H.C. testified that his memories were “kind of old and fuzzy.” His biological mother, on the other hand, was clear in her testimony that H.C. always took baths at her parent’s home. She explained that this was necessary because the FEMA trailer had no hot water.

With regard to the defendant’s prior convictions, La.Code Evid. art. 412.2(A) allows evidence of such prior convictions to be admitted in order to “indicate a lustful disposition toward children” when the defendant “is charged with a crime ... involving a victim who was under the age of seventeen at the time of the offense[.]” However, the evidence may still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice[.]” La.Code Evid. art. 403.

In allowing the evidence, the trial court relied on State v. Williams, 11-876 (La. App. 5 Cir. 3/27/12), 91 So.3d 437, writ denied, 12-1013 (La.9/21/12), 98 So.3d 334. However, as noted by the majority, in Williams the victim was a nine-year-old girl who asserted that the defendant had inappropriately touched her on the top of her clothing, and the underlying carnal knowledge conviction involved a |fithirteen-year-old girl. The trial court found the cases were sufficiently similar for the evidence to be admissible under La.Code Evid. art. 412.2(A), and the passage of time since the prior conviction did not call for exclusion of the evidence. The fifth circuit affirmed the decision.

The holding in Williams is clearly distinguishable from the matter before us. The defendant’s prior convictions involve young girls as his victims. The two indecent behavior offenses occurred in 1996, and the carnal knowledge offense occurred in 1989. The offenses at issue in this litigation are not similar in that they involved female victims, and the latest occurred approximately ten years before the charged offense now before us.

The holding in State v. Archield, 09-1116 (LaApp. 3 Cir. 4/7/10), 34 So.3d 434, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972, as cited by the majority is also distinguishable in that it involved former victims of the same gender; the issue before the court in that particular case related to the question of consent of the victim and the victims of the other crimes testified so that their testimony might aid the court in evaluating the credibility of the current victim. The trial court applied the balancing test and determined that the evidence was admissible under La.Code Evid. art. 412.2 even though it was prejudicial.

In the case now before us, unlike Williams and Archield, there is no other corroborating evidence to buttress H.C.’s statements. Additionally, the defendant’s convictions for offenses against girls fail to show that he has a lustful disposition toward boys. I find that the probative value of the prior convictions did not outweigh the danger of the defendant being unfairly prejudiced by their admittance into evidence, given the fact that the state’s total case prior to their submission was the various versions of what happened according to H.C.

|7In finding error in the jury’s verdict, I do not suggest that H.C. intentionally fabricated his allegations against the defendant. An act of sanitary care education occurring when H.C. was three or four years old may have taken on an entirely different perspective two to three years later given the tumultuous family history H.C. endured during that interim period. By the time he was interviewed by Ms. Hinton and Ms. Joseph, he had been removed from his mother’s care because of her relationship with the defendant, and according to his adoptive father, had been adopted by his aunt and uncle. What he learned from overhearing inappropriate adult conversations during that time and how that knowledge might have shaped his memory of other events will probably never be known, but it is significant that he accused both the defendant and his brother of the same offense after he moved from his mother’s home.

From the evidence presented, a rational trier of fact could not have concluded beyond a reasonable doubt that the defendant was innocent or guilty. However, in a criminal trial the rational trier of fact need not determine beyond a reasonable doubt that a defendant is innocent; he or she need only conclude that the evidence establishes his guilt beyond a reasonable doubt. In this case, I cannot say that the evidence establishes the defendant’s innocence, but I have to conclude that the evidence is not sufficient to establish his guilt beyond a reasonable doubt. I would vacate the conviction and sentence and enter a verdict of acquittal.

      . The victim's initials are used to protect his identity in accordance with La.R.S. 46:1844(W).

      . The record does not indicate the date of the counseling session.

      . H.C.’s adoptive father testified the adoption occurred in October of 2009.

      . Valerie Chauvin was charged as a principal to the defendant’s offense and was advised of her right to avoid self-incrimination prior to her testimony.

      . Blake identified the uncle by name at trial; it was not H.C.'s uncle Ralph, who is also his adoptive father.

      . This language reflects the 2007 version of the statute.