text:
    STATE of Louisiana v. Joseph PARKER.
    No. 2008-KA-1473.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

| ¡The defendant, Joseph Parker, was charged with simple burglary. Defendant Parker appeared before the trial court for arraignment and pled not guilty. He filed motions to suppress the evidence and statements, which were denied. The trial court found Defendant Parker guilty. The trial judge conducted a multiple bill hearing and found Defendant Parker to be a triple offender; the trial judge sentenced the defendant to eight years at hard labor for the simple burglary conviction.

Defendant Parker appeals, arguing that the evidence adduced at trial was insufficient to support his conviction and sentence for simple burglary. We find that the State failed to satisfy its burden of proving the elements of simple burglary beyond a reasonable doubt. Further, we do not find that a rational trier of fact could have found the essential elements of simple burglary were proven beyond a reasonable doubt. We therefore reverse the defendant’s conviction and sentence.

| ^FACTUAL AND PROCEDURAL HISTORY

The State of Louisiana charged Joseph Parker (hereinafter “Defendant Parker”) by bill of information with one count of violating La. R.S. 14:62, simple burglary. Defendant Parker appeared before the trial court for arraignment and pled not guilty. The trial court conducted a preliminary hearing and heard motions to suppress evidence and statements. At the close of the hearing, the trial court denied Defendant Parker’s motions and found sufficient probable cause to substantiate a charge of simple burglary.

Defendant Parker elected to waive the jury, and the matter was tried before Judge Raymond Bigelow. The State introduced nine exhibits and presented testimony from three individuals. Defendant Parker introduced no exhibits and presented testimony from one individual. The trial judge found Defendant Parker guilty of simple burglary.

The trial judge held a multiple bill hearing and sentenced Defendant Parker as a triple offender to eight years at hard labor with the Department of Corrections. Defendant Parker appeals his conviction and sentence.

Officer Tiwana Conway testified that on January 24, 2008, she was assigned to the Second District and was on patrol in a marked unit with her partner, Officer Paul Micken, when they arrested Defendant Parker at approximately 8:00 p.m. for simple burglary. Specifically, Officer Conway testified that she and her partner were patrolling in the Holly Grove area of New Orleans when they observed two men pushing a stove with a hand cart off of the porch of a newly built ^condominium complex in the 8400 block of Strolitz Street. Officer Conway testified that she and her partner then pulled their patrol car over and questioned the two men. Officer Conway noted that Defendant Parker stated that the stove was not theirs but that someone paid him and his friend to move the stove to a nearby condominium unit (“unit”). Further, Officer Conway noted that Defendant Parker stated that he did not live in the building and gave an alias as his name to the officers.

After questioning the suspects, Officer Conway went up on the condominium’s porch, noticed that one of the three front doors was unlocked, and then went inside the unlocked unit. Officer Conway noted that the unlocked unit was numbered 8433 Strolitz, the other two doors were locked, and the door to 8433 Strolitz did not appear to have been forced open. Officer Conway noted that the unit was new, empty of furniture and missing a stove. Officer Conway stated that the unit had two bedrooms and that a window in one of the bedrooms had been smashed out with a concrete cinder block. Officer Conway also noted that she observed glass on the floor of the bedroom with the broken window. Officer Conway then exited the building and informed the two men that they were under arrest.

Officer Conway further testified that she later learned the identity of the condominium’s owner and contacted him. While testifying, Officer Conway also identified in court the defendant as one of the two men arrested on the scene, the concrete cinder block she observed on the floor of the bedroom with the broken |4window, and various photographs of the unit, taken on the night of the incident, which depicted the unit, the concrete cinder block, as well as the stove and hand cart.

On cross-examination, Officer Conway admitted that she never witnessed Defendant Parker in the condominium unit. Officer Conway testified that both of the men arrested on the night of the incident told identical stories concerning their reasons for being in possession of the stove. Officer Conway noted that Defendant Parker did not run from the police and exhibited no injuries. Officer Conway noted that she observed no blood in the bedroom with the broken window. Wfliile noting that officers from the Crime Lab were on the scene, Officer Conway did not know whether any attempt was made to dust for fingerprints.

Officer Conway noted that no other vehicle on the street near the unit was identified as belonging to Defendant Parker or his associate. On redirect examination Officer Conway testified that the address given by Defendant Parker was in the neighborhood of the crime scene.

The State introduced the testimony of Officer Paul Micken. Officer Micken testified that on the night of the incident he was on patrol with his partner, Officer Conway, in the Second District. Officer Micken also testified that on the date of the incident he observed Defendant Parker and another man attempting to move a stove on a hand truck off of a porch of a building. Officer Micken testified that he and his partner then stopped Defendant Parker and his associate for questioning. Officer Micken noted that when asked why they were moving the stove, the two | flmen stated that someone had given them a bottle of wine to move the stove to a nearby apartment. Officer Micken added that Defendant Parker and his friend did not produce the bottle of wine or any other form of payment. Officer Micken stated that he contacted the owner of the building and that the owner later arrived at the scene. In court, Officer Micken identified Defendant Parker as one of the two men arrested on the night of the incident. Officer Micken also identified photographs taken on the night of the incident which depict the stove and the exterior of the building where the incident occurred.

On cross-examination, Officer Micken, like Officer Conway, acknowledged that both suspects told similar stories, Defendant Parker did not run away and Defendant Parker did not appear to be injured. Officer Micken could not state whether the Crime Lab was able to lift any fingerprints from the crime scene.

The State’s final witness, Andre Hooper, testified that he is a real estate investor and developer and co-owner of several hundred units in an eight block radius surrounding the site of the incident. Mr. Hooper noted that the complex at issue is comprised of four units that he and his partner owned prior to Katrina, had renovated after Katrina and intended to either sell as condominiums or rent. Mr. Hooper testified that he was contacted at approximately 8:00 p.m. on January 24, 2008, notified that a burglary had been committed at 8433 Strolitz Street and asked to come to the scene of the crime. Mr. Hooper testified that upon arriving, he observed the broken window and noticed that all the appliances had been removed from the unit at issue. Mr. Hooper noted that he had been in the unit several days | ,¡prior to the burglary and that all the appliances were then present. Mr. Hooper testified that: 1) he did not know Defendant Parker; 2) he did not give permission to Defendant Parker to be on his property on the day of the incident; 3) he did not give permission to Defendant Parker to go inside the property at 8433 Strolitz St.; and, 4) he did not give permission to Defendant Parker to remove a stove from the property at 8433 Strolitz Street.

Following the State’s case, Defendant Parker moved for a judgment of acquittal, which the trial court denied after argument from the parties. Defendant Parker called Dwayne Davis to testify. Mr. Davis testified that he and Defendant Parker were friends and had known each other for approximately twenty years. Mr. Davis testified that on the night of the incident he and Defendant Parker were walking to the store when they were approached by a man who asked them if they wanted to make some money by moving a stove off of a nearby porch. Mr. Davis testified that he did not know the man or his name and had never seen him before the night in question. Mr. Davis testified that the man was tall, brown skinned, and with a short hair cut. Mr. Davis explained that when he and Defendant Parker went to move the stove, the man walked down the street. Mr. Davis testified that while he and Defendant Parker waited for the man to return, the police arrived approximately twenty minutes later and began to question them about their actions. Mr. Davis stated that he and Defendant Parker told the police that they were helping a man move a stove, and the man walked up the street and had yet to return.

17Mr. Davis noted that the police never went to look for the unnamed man. Mr. Davis stated that at no time did either he or Defendant Parker enter the premises at 8433 Stroelitz Street or break a window at that address. The police arrested Mr. Davis, along with Defendant Parker, and the State charged both Mr. Davis and Defendant Parker with committing simple burglary. Unlike Defendant Parker, Mr. Davis pled guilty to the charge. At trial, Mr. Davis denied committing the crime and testified that he only pled guilty to avoid a jail sentence. Mr. Davis denied having ever been convicted of any crimes in the past. Mr. Davis also denied the allegation that Defendant Parker gave the police an alias instead of his actual name.

A review of the record reveals no errors patent.

TRIAL JUDGE’S QUESTIONING OF WITNESSES

Defendant asserts that his conviction and sentence should be reversed because the trial court usurped the prosecutor’s role by asking too many questions of the witnesses at trial.

Defendant Parker does not allege that the trial judge was biased against him but he does insinuate that the judge was not a neutral arbiter, though he fails to give a concrete example of this allegation.

Defendant Parker acknowledges that in a bench trial, the trial court may examine a witness in order to bring out needed facts not elicited by the parties. See State v. Burrell, 561 So.2d 692 (La.1990); and State v. Mitchell, 598 So.2d 1271, 1273 (La.App. 4 Cir.1992). The defendant mischaracterizes the record when he |sinsists that his counsel objected to the trial court’s actions at trial. The record reveals that defense counsel did not object to the trial judge’s questions but rather objected to a question from the State’s attorney as being beyond the scope of redirect examination.

The record is devoid of any objection by the defendant to the trial court’s questioning of the witnesses. La.C.Cr.P. art. 841 provides, in part, that an “irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” In State v. Bernard, 358 So.2d 1268 (La.1978), the defendant was convicted of second degree murder. On appeal, the defendant alleged, among other things, as error the fact that the trial judge made two improper remarks, one of which was a question directed toward a witness, which improperly influenced the jury’s deliberations. Id. In disposing of this argument, the Supreme Court cited to La.C.Cr.P. art. 841 and noted that the defendant failed to object to the trial judge’s statements on the record at trial. The Supreme Court concluded that the matter was not properly presented for review on appeal.

As in Bernard, the defendant in the instant matter failed to preserve this alleged error for appeal in that he failed to lodge a contemporaneous objection to the trial judge’s questions at trial. Accordingly, we find this assignment of error without merit.

SUFFICIENCY OF EVIDENCE

Defendant Parker asserts that the evidence adduced at trial was insufficient to support his conviction and sentence for simple burglary. Specifically, | ¡defendant Parker argues that the State failed to prove that he entered the property at issue and thus failed to prove that the defendant committed simple burglary.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. State v. Shaw, 2007-1427, p. 15 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 408. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

Defendant Parker was convicted of simple burglary which is defined by La. R.S. 14:62(A) accordingly: “Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, moveable or immovable, or any |; (¡cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” Defendant Parker asserts that his conviction and sentence must be reversed because the State failed to prove that he entered the dwelling at 8433 Strolitz Street, unauthorized or otherwise. The State contends that the direct and circumstantial evidence presented at trial is sufficient to sustain the defendant’s conviction.

Viewing the evidence in the light most favorable to the prosecution establishes the following facts: Officers Conway and Micken observed Defendant Parker and Mr. Davis pushing a stove with a hand truck off the porch at 8433 Strolitz Street. The officers stopped the two men to ask them about their actions. Neither Defendant Parker nor Mr. Davis claimed to live at 8433 Strolitz Street or own the stove. Rather, both men told the officers that an unidentified man flagged them down and offered to pay them, with either wine or cash, to move the stove from the porch of 8433 Strolitz Street to a nearby apartment, and walked away.

Mr. Davis testified that he and Defendant Parker stood waiting on the porch with the stove for approximately twenty minutes before the police arrived. Additionally, the record indicates that Defendant Parker lived at 8634 Apricot Street, which is in the vicinity of 8433 Strolitz Street.

Further investigation by Officer Conway revealed that the front door to 8433 Strolitz Street was unlocked. Accordingly, Officer Conway entered the unit to investigate. After entering, Officer Conway discovered that one of the unit’s bedroom windows had been broken with a concrete cinder block. Officer Conway |nnoted that she observed both broken glass and the cinder block sitting on the floor of the bedroom.

Officers Conway and Micken then contacted one of the unit’s co-owners, Mr. Hooper, who shortly thereafter arrived at the scene. Mr. Hooper testified that when he arrived he noticed that the bedroom window was broken and that all of the unit’s appliances had been removed. Mr. Hooper further testified that he had been in this unit a few days prior to the incident and noticed no broken windows or missing appliances. Moreover, Mr. Hooper testified that he did not know Defendant Parker and he did not give him permission to enter the unit or remove the stove.

The State asserts that the defendant’s unauthorized entry into 8433 Strolitz Street with the intent to commit a theft can be inferred by reason and common experience from the foregoing evidence. Specifically, the State contends that it was reasonable for the trier of fact to infer from the established facts that Defendant Parker and Mr. Davis entered by first smashing out the bedroom window with a concrete cinder block. The State notes that the trial court discounted Mr. Davis’ testimony as not credible.

The evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of the 112offense, La. Rev.Stat. 15:438 provides that “assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Vortisch, 00-67, p. 5 (La.App. 5 Cir. 5/30/00), 763 So.2d 765, 768. It is not a separate test from the Jackson standard; rather it provides a helpful basis for determining the existence of reasonable doubt. Id. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id. An appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Williams, 05-59 at p. 5, 904 So.2d at 833. Rather, the reviewing court must evaluate the evidence in a light most favorable to the State, and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

The record does not contain any direct evidence that Defendant Parker broke the glass window in the unit nor is there any direct evidence that Defendant entered or exited the unit. There were no fingerprints from the burgled premises linking Defendant Parker with the burglary of the unit. Officer Conway testified that Defendant Parker did not flee upon the arrival of the police or make an attempt to flee after their arrival.

| isThe evidence presented at trial by the State to prove its theory that Defendant Parker committed simple burglary of the unit was entirely circumstantial. Essentially, the State posits that Defendant Parker’s presence, along with that of Mr. Davis, and his loading a hand truck with a stove on it from the porch down stairs of the unit constitutes an “unauthorized entering” by Defendant Parker. The owner of the unit testified that all appliances were missing from the apartment, however the owner did not identify the stove on the hand-truck as the stove that was stolen from the apartment. We conclude that the State failed to provide the support necessary to connect the allegedly stolen stove to unauthorized entry of the unit by Defendant Parker by circumstantial evidence.

We find that the State failed to carry its burden of proof on the “unauthorized entry” element of simple burglary as to Defendant Parker as required by law. The facts established by direct evidence and those reasonably inferred from circumstantial evidence in the matter before us, when viewed in the light most favorable to the prosecution, could not persuade a rational trier of fact that the State proved beyond a reasonable doubt that Defendant Parker made an “unauthorized entry” under La.Rev.Stat. 14:62. Thus, we find the evidence was legally insufficient to convict Defendant Parker of simple burglary.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are hereby reversed.

REVERSED.

      . Evidence of the defendant's concealment and attempt to avoid apprehension are indicative of consciousness of guilt. State v. Davenport, 445 So.2d 1190, 1195 (La.1984).


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brennan STALLWORTH.
    No. 2008-KA-1389.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    Michael Riehlmann, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   PATRICIA RIVET MURRAY, Judge.

11 The defendant, Brennan Stallworth, appeals his conviction and sentence for purse snatching. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On January 29, 2008, the State filed a bill of information charging Brennan Stall-worth with purse snatching in violation of La. R.S. 14:65.1. The defendant pled not guilty at arraignment on February 11, 2008. Subsequently, the trial court found probable cause and denied the defendant’s motions to suppress the identification and the evidence.

On June 3, 2008, the case was tried before a jury, and the defendant was found guilty as charged. The defendant timely filed a motion for new trial, which was denied. After the defendant waived any delays, the trial court sentenced him to six years at hard labor in the custody of the Department of Corrections. This appeal, in which Mr. Stallworth alleges he was denied effective assistance of counsel, followed.

FACTS

Ryan Schwartz testified at trial that on November 27, 2007, he was working late at the Rendezvous Tavern when at approximately 3:30 a.m. he heard a loud banging and screaming at the front door. He looked through the window and |2observed a young woman, later identified as Jennifer Pinson. He let her in. Although she was hysterical and sobbing uncontrollably, Mr. Schwartz was able to learn her name and to gather enough information to determine that the police should be called.

Mr. Schwartz explained that the business was equipped with a surveillance system with cameras located both inside and outside the tavern. He showed the first officers who arrived the surveillance footage captured from outside the bar.

Officer Lester testified that he was the first officer to report to the scene. Initially, he observed that Ms. Pinson was distraught and crying. After she had calmed down, she related that she had been robbed of her purse by an unknown black male. Ms. Pinson stated that the subject had approached her for a cigarette and then had come from behind her and grabbed her purse. She resisted and held onto her purse. As the subject pulled on the purse, Ms. Pinson fell to the ground and was dragged along some distance. The subject then began hitting and kicking her, and threatened her until she relinquished her property. The subject then got into a white, four-door automobile, which Ms. Pinson believed to be a Pontiac Grand Am and fled north on Eighth Street. Officer Lester testified that the victim was unable to provide a clothing description of the perpetrator at that time.

Sgt. Jeffrey Walls testified that after the incident, he met with the owner of the Rendezvous Tavern, who provided him with a copy of the surveillance video on two compact disks. Sgt. Walls gave the disks to Det. Matthew McCleary, who was in charge of the investigation.

Det. McCleary testified that after he had an opportunity to review the surveillance video, he met with the victim at her residence on the afternoon of the robbery. At that point, Ms. Pinson was able to provide a description of the | (¡perpetrator. Sgt. Walls photographed the victim’s injuries, which included a cut on her right forearm and some bruising on her shoulder.

Subsequently, Det. McCleary developed Brennan Stallworth as a suspect in the case and compiled a photographic lineup. Det. McCleary met with the victim on December 5th at her residence and asked her to go over the incident again in her head before he showed her the lineup. Ms. Pinson reviewed the lineup and identified Mr. Stallworth as the perpetrator. Det. McCleary had Ms. Pinson document her identification by dating and signing the lineup along with the number photograph she identified.

As a result of Ms. Pinson’s identification, Det. McCleary prepared an arrest warrant for Brennan Stallworth. On December 6, 2007, Mr. Stallworth was arrested in a white Buick Skylark. At that time, Det. McCleary recovered from Mr. Stallworth’s person a black jacket that matched the description given by Ms. Pinson of the perpetrator’s clothing, and that also was consistent with what was captured on the surveillance tape. In addition, Det. McCleary photographed the Buick, which was registered to Mr. Stallworth.

Det. McCleary further testified that he was able to develop Mr. Stallworth as a suspect primarily through a prior purse snatching that had occurred in another part of town on November 23, 2007. In that incident, the victim had been able to provide a license plate number, which corresponded to a white Buick Skylark that was registered to Mr. Stallworth. According to Det. McCleary, Mr. Stallworth also matched the description of the perpetrator in the November 23rd incident. However, the victim in that incident did not identify Brennan Stallworth when she was shown a photographic lineup containing his picture.

4Pet. McCleary also related that at the time Brennan Stallworth was arrested during a traffic stop, his brother, Cinque Stall-worth, was also in the vehicle. To Det. McCleary’s knowledge, a photo of Cinque Stallworth was then placed into photographic lineup shown to the victim of the November 23rd incident, who positively identified him. Ms. Pinson, however, was never shown a lineup containing a photo of Cinque Stallworth. Det. MeCleary stated, that when interviewed by him, Ms. Pinson had indicated that the driver of the getaway car was a woman.

Jennifer Pinson testified that on November 27, 2007, she had been at her boyfriend’s house and had left the apartment at approximately 3:00 a.m. to get a pack of cigarettes at Walgreens. She was walking down Magazine Street when she was approached by a man who asked her for a cigarette. She told him that she did not have any, kept walking, and crossed the street, at which point she was attacked from behind by the same person. He dragged her back across the street by her purse, which she refused to relinquish.

The perpetrator was struggling for her purse, which was around her arm, and Ms. Pinson was fighting back and screaming. The perpetrator put his hand around her throat and then over her mouth in an attempt to get her to shut up. The perpetrator then asked Ms. Pinson if she wanted to live. She said “yes,” and just gave up. The perpetrator took Ms. Pinson’s purse, got into a white car that was parked right beside where Ms. Pinson was lying, and drove off.

Ms. Pinson got up, ran to the Rendezvous Tavern across the street, and started banging on the door until the bartender let her in. Hysterical at this point, Ms. Pin-son briefly told the bartender what had happened and asked him to call the police.

[ ¡¡Eventually, the police arrived, and Ms. Pinson gave the officer a general description of the perpetrator. Later, when she was much calmer, she met with Det. MeCleary and provided a more thorough description. Some days later, Det. MeCleary presented her with a photographic lineup. After reviewing the events in her mind, Ms. Pinson examined the lineup and made a positive identification of Brennan Stallworth.

At trial, Ms. Pinson identified the jacket recovered by Det. MeCleary as the jacket worn by the perpetrator. Ms. Pinson also examined the photograph taken of Brennan Stallworth’s car and stated that it appeared to be the same white car she remembered him driving off in.

At this point, the Rendevous Tavern surveillance video was played for the jury while Ms. Pinson narrated the events.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR

The defendant’s sole assignment of error is that he received ineffective assistance of counsel, primarily because his counsel was unprepared for trial. The defendant’s motion for new trial was supported by an affidavit of his trial counsel, Clark Beljean, in which he asserted that he had been unable to adequately prepare a defense on the merits of the case prior to the June 3, 2008 trial because he had not received a transcript of the victim’s motion hearing until the afternoon of June 2, 2008, and because he had a large caseload.

Mr. Beljean also testified at the hearing on the defendant’s motion for new trial. At the hearing Mr. Beljean stated that he had not anticipated that the case would actually be tried June 3, 2008. He had believed that the trial date had been | nset simply as a measure to “force the case to move along.” It was Mr. Beljean’s understanding that because the victim was a traveling nurse, the setting of the defendant’s motions hearing on June 2nd and trial on June 3rd was done to ensure the victim’s appearance for the motions hearing, at which time the trial date would be continued. However, according to Mr. Beljean he learned on June 2nd that the State had flown the victim in to testify and that the trial was scheduled to proceed on June 3rd. Mr. Beljean testified that he could not recall whether he had requested a continuance of the trial; the record does not show that the defendant moved to continue the June 3rd trial date. Asked whether he felt prepared to go to trial, Mr. Beljean stated he felt as prepared as he could be, “having to go to trial the day following the testimony with the alleged victim.”

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed by an application for post conviction relief, filed initially in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729, 737 (La.1984); State v. Reed, 483 So.2d 1278, 1280 (La.App. 4th Cir.1986). However, where the appeal record discloses sufficient evidence upon which to make a determination of counsel’s effectiveness, such decision may be made on appeal in the interest of judicial economy. State v. Seiss, 428 So.2d 444, 448 (La.1983).

A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119, 125 (La.1984). Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. 7Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. This burden requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. The defendant must also show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

Both showings must be made before it can be found that the defendant’s conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id., 466 U.S. at 687, 104 S.Ct. at 2064. A claim of ineffective assistance may be disposed of on the finding that either of the Strickland requirements has not been met. State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989). If the claim fails to establish either prong, the reviewing court need not address the other. State v. Weaver, 99-2376, p. 8 (La.App. 4 Cir. 9/27/00), 770 So.2d 831, 836.

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.

If an alleged error falls “within the ambit of trial strategy, it does not establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4th Cir.1986). Moreover, “[wjhile opinions may differ on the advisability of such 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.” State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363(1987).

As he did at the motion for new trial, the defendant on appeal bases his claim of ineffective assistance upon Mr. Beljean’s assertion that he was unable to adequately prepare a defense on the merits because of the expedited handling of the case, specifically the fact that he was only able to obtain a transcript of Ms. Pinson’s testimony on the afternoon before trial.

As noted by the State, Mr. Beljean commenced his representation of the defendant in February, four months prior to trial, when he appeared on the defendant’s behalf at his arraignment. Moreover, Det. McCleary testified at the April 11, 2008 motion hearing, which was then continued until June 2nd to await the victim’s appearance, regarding the events that led to the defendant’s arrest. This testimony necessarily included Ms. Pinson’s account of the attack as documented in the arrest warrant and police report

The defendant does not suggest that Ms. Pinson’s testimony revealed any avenues of investigation that defense counsel was unable to pursue because of a lack of time; nor does the defendant suggest how the outcome of his trial might have been affected had Mr. Beljean had more time to prepare a defense. Defendant does not specifically identify any potential witnesses or exculpatory evidence that Mr. Beljean was unable to uncover because he had insufficient time to prepare for trial. In the absence of such specifics, Mr. Stall-worth’s general assertion that his trial counsel was unprepared is insufficient to satisfy the two-pronged Strickland test for establishing ineffective assistance of counsel.

|9In addition to the general contention that his trial counsel lacked sufficient time to prepare for trial, Mr. Stallworth argues that his counsel committed several specific errors at trial. According to the defendant, the most egregious error committed by defense counsel occurred during his cross-examination of Det. McCleary. Up until that point, the jury had been told simply that Det. McCleary had developed the defendant as a suspect, without hearing any of the facts responsible for his making that determination. However, during cross-examination of Det. McCleary, defense counsel brought out that the defendant had become a suspect as a result of his vehicle being identified from an earlier purse snatching. The defendant contends that this information suggesting his possible participation in another robbery was damaging.

Although the defendant argues that his counsel essentially blundered down this path of questioning without realizing the potential negative impact it would have, the record reflects otherwise. The record shows that the defendant’s trial counsel consciously elicited this testimony as an element of his defense, which was to raise doubt in the minds of the jurors by suggesting that Cinque Stallworth, the defendant’s brother, might have committed the crime rather than the defendant. Accordingly, we conclude that this conduct, which the defendant labels as deficient performance, falls within the ambit of trial strategy-

14] Defendant also contends that Mr. Beljean was deficient in failing to object to the hearsay testimony of Officer Lester that Jennifer Pinson had described the getaway vehicle as a white Pontiac Grand Am; whereas, during Ms. Pinson’s own testimony, she described the vehicle simply as a white car. Accordingly, defendant contends that but for Officer Lester’s hearsay testimony, the important fact that Ms. ImPinson’s description of the vehicle closely matched that of the defendant’s own Buick would not have been revealed.

Like the defendant’s prior argument, his claim concerning his counsel’s failure to object to hearsay testimony from Officer Lester also falls within the ambit of trial strategy as it was important to link the vehicle described by Ms. Pinson to the prior purse snatching in which Cinque Stallworth was identified as the perpetrator.

The defendant further argues that his counsel erred during his cross-examination of Ms. Pinson. Specifically, the defendant argues that on direct examination, Ms. Pinson did not describe the physical characteristics of her attacker, stating only that he had worn a dark jacket and plaid shirt. During cross examination, however, Ms. Pinson testified that her assailant was approximately six feet tall and had a dark complexion. Therefore, defendant argues that this information would not have come out if Mr. Beljean had not cross-examined Ms. Pinson. However, we find that defense counsel’s decision to cross-examine Ms. Pinson falls within the ambit of trial strategy.

With regard to what constitutes ineffective assistance, the jurisprudence reflects that it is not enough to show that some, or even most, defense lawyers would have handled the case differently. As the Supreme Court has observed: “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It is likewise “all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. The choice of what defense to employ is perhaps the hallmark of the type of act for which Strickland requires that judicial scrutiny be highly deferential and for which j^there is a strong presumption that the decision was a function of reasonable professional judgment. Accordingly, we decline to overturn the defendant’s conviction on this basis.

Lastly, the defendant argues that his trial counsel failed to request either a mistrial or admonition after a reference to his post-arrest silence in contravention of the rule established in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). On direct examination, Det. McCleary testified as follows:

I did meet him at the location he was arrested at, advised him of his rights and attempted to question him, which he didn’t want to speak to me.

In Doyle v. Ohio, the United States Supreme Court addressed the issue of whether a prosecutor could seek to impeach a defendant’s exculpatory account, offered for the first time at trial, through his failure to offer the statement at the time of his arrest after receiving Miranda warnings. The Court held that the use, for impeachment purposes, of a defendant’s silence after receiving Miranda warnings at the time of arrest, violates the Due Process Clause of the Fourteenth Amendment. 426 U.S. at 618-619, 96 S.Ct. at 2245.

In State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, the prosecutor questioned the arresting officer as to whether the defendant had been read his rights after he was arrested, and then elicited testimony from the officer establishing that the defendant did not make any statements. Defense counsel objected to the initial inquiry and then moved for a mistrial after the prosecutor established the defendant’s post-arrest silence. The trial court denied the motion for mistrial but admonished the jury not to hold the fact that the defendant chose to remain silent against him in any manner. The defendant had offered an alibi defense at trial. The Court found no reversible error because there was no | ^indication of an attempt by the prosecutor to “ascribe a guilty meaning” or “affirmatively exploit the testimony to impeach the defendant’s exculpatory account offered at trial.” Id., p. 9, 661 So.2d at 980.

Although the instant case involves an explicit mention of the defendant’s post-arrest silence, there is no indication of an attempt to either ascribe a guilty meaning or affirmatively exploit the testimony to impeach the defendant’s exculpatory account offered at trial. Rather, the officer’s statement appears to be a simple “description of how the police investigation culminated in the formal arrest of the defendant with the routine incidents of custody, e.g., the reading of Miranda warnings to the person arrested.” Id., p. 10, 661 So.2d at 980. Although unnecessary, Det. McCleary’s statement did not provide a basis for a mistrial, and counsel’s decision not to request an admonition was a legitimate exercise of trial strategy. State v. Spears, 94-0327, pp. 8-9 (La.App. 4 Cir. 12/15/94), 647 So.2d 1313, 1317.

Accordingly, we find that the defendant has failed to meet his burden of establishing ineffective assistance of counsel, and we reject this assignment of error.

CONCLUSION

We affirm the defendant’s conviction and sentence.

AFFIRMED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana in the Interest of D.G.
    No. 2008-CA-0938.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2009.
    Writ Denied June 5, 2009.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant, D.G.
    Leon A. Cannizzaro, Jr., District Attorney, Brandi Dohre, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).

      . Upper case letters original.

   JOAN BERNARD ARMSTRONG, Chief Judge.

|tOn February 14, 2008, a Petition for Delinquency, was filed against D.G., a fourteen year-old juvenile, setting forth one charge against him of sexual battery under La. R.S. 14:43.1.

D.G. appeared in court on February 20, 2008, requested and was appointed counsel from the Indigent Defender Board; he also denied the allegations in the Petition. Various motions were filed and answered, among them a Motion to Preclude Incompetent Testimony filed on April 24, 2008 on behalf of D.G. The motion was deferred to trial.

An adjudication hearing was held on May 14, 2008. Just before the end of the hearing the juvenile judge stated that:

The Court, at this time, adjudicates the juvenile delinquent to the crime of Sexual Battery. I sentence you to a period of incarceration with the Office of Youth Development for a period of two years.
At this point defense counsel interjected: |2Your Honor, I would request that before you do a sentencing in this matter that we’d be allowed to submit evidence on behalf of the defendant.

The State then asked to have a chance to offer a victim impact statement “before sentencing,” to which the judge responded: “Not a problem.” The judge went on to state that: “It’s now scheduled for a victim impact statement and a dispositional date at the same time.” Accordingly, the dispo-sitional hearing was held on June 11, 2008, pursuant to which the juvenile judge imposed a disposition of three years with the Office of Youth Development, instead of the two years he contemplated at the original hearing, with a referral to the sexual predators counseling class. This appeal follows.

La. Ch.C. art. 883 requires the State to “prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” This echoes the constitutional requirement that the State prove every element of the offense beyond a reasonable doubt. In re Winship, 897 U.S. 858, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In evaluating whether the evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Nevertheless, the reviewing court may not disregard its duty to consider whether the evidence is constitutionally sufficient simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted |ato consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id.

Counsel for D.G. takes the position that the State failed to prove that there was a touching by D.G. of either the genitals or anus of the victim. The victim was not called as a witness, but was physically present in the courthouse and there was no physical or other impediment to calling him as a witness.

The record reflects that there was considerable testimony that D.G. requested the victim to perform oral sex upon him on one or more occasions, but there is no evidence that the victim acceded to any of these requests or that there was any genital contact, oral or otherwise. Mere requests for genital contact, without actual contact, are insufficient to meet the definition of sexual battery as set forth in La. 14:43.1. Therefore, D.G.’s adjudication cannot be sustained on the basis of an oral sexual battery. However, as hereinafter discussed, we find that the adjudication can be sustained on the basis of the juvenile judge’s finding of anal contact.

Counsel for D.G. also complains that the State failed to introduce sufficient evidence to prove beyond a reasonable doubt that he committed a sexual battery upon the victim by anal contact.

The victim’s aunt, who testified as the person to whom the victim made the “initial complaint of sexually assaultive behavior” (referred to as the “first | ¿reporter”) under La. C.E. art. 801 D(l)(d), testified that the victim told her that D.G. was trying to put his “thing” in his “butt.”

La. C.E. art. 801 provides in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.

The first person to whom the victim made the “initial complaint of sexually as-saultive behavior” may have been his eight-year old cousin, J. Therefore, D.G. contends that the hearsay exception testimony in La.C.E. art. 801(D)(1) hearsay exception for “initial complaint of sexually assaultive behavior” does not apply to the testimony of his aunt as she was not the person to whom the victim first reported the “sexually assaultive behavior” of D.G.

The State counters that the statement made by the victim to his aunt was one of initial complaint because implicit in La.C.E. art. 801(D)(1) hearsay exception for “initial complaint of sexually assaultive behavior” is the assumption that the initial complaint is made to an adult or other competent person.

In admitting the testimony of the victim’s aunt as a “first reporter” the trial court reasoned that: “I believe that a first reporter is a responsible person that can, in fact, take steps [to further] the investigation or to preserve the safety of the child. I’m going to rule that [an] 8-year-old child does not meet the definition of a first reporter as this [Court is] concerned.” Neither the State nor D.G. cite any authorities in support of their respective positions on this issue, and this Court has | ¿located none. Therefore, we consider this to be a matter of first impression. In doing so we find that we are persuaded by the logic of the trial court’s reasoning as quoted earlier in this same paragraph. Accordingly, we find no error in the ruling of the trial court allowing the testimony of the victim’s aunt to be treated as an “initial complaint of sexually assaultive behavior.”

The State also introduced a DVD of the interview Joan Verrett, a social worker at the Children’s Advocacy Center, conducted with the victim. When asked whether anything happened, the victim said only that his uncle [D.G.] rubbed his private part on his butt. When asked to identify body parts on line drawings of full frontal and rear views of a young boy and a young girl he labeled as “private parts” both the pubic areas and the buttocks shown on both sets of pictures.

Counsel for D.G. contends that the statute requires that there be a touching of the anus and that a touching of the buttocks is not sufficient to constitute sexual battery under the statute, i.e., where the statute says “anus” it does not mean “buttocks.” We agree. For example, Louisiana Revised Statute 14:283(B)(3) concerning the crime of video voyeurism refers separately to “anus” and the “cleft of the buttocks,” and LSA-R.S. 26:90 concerning the commission of lewd acts on premises licensed to sell alcoholic beverages also refers to “anus” and “buttocks” separately. However, Dr. Scott Anthony Benton, the medical director of the Audrey Hepburn Children at Risk Evaluation Center as well as a clinical associate professor of pediatrics at both the LSU and Tulane Schools of Medicine, gave testimony based upon his medical examination of the victim that sufficiently supports the conclusion that there was anal contact.

| fiD.G. contends that it was error to allow Dr. Benton to testify because his examination of the victim was for forensic purposes, not medical, at a time several months after the alleged incident or incidents for which D.G. was brought before the court below. Consequently, D.G. argues that the hearsay exception found in La. C.E. art. 803(4) for statements given in the course and scope of medical treatment and diagnosis does not apply.

Dr. Benton testified as to what the victim told him when he examined him. From the medical records it appears that the seven-year old the victim was referred to Children’s Hospital by his mother and the New Orleans Police Department. Dr. Benton testified that the victim was referred to him by the Children’s Hospital Emergency Room. The trial court allowed this as an exception to hearsay as it was told to him by the child in the course and scope of receiving medical treatment. C.E. art. 803(4). The attorney for D.G. objected, arguing that Dr. Benton was interviewing the victim as part of a forensic investigation and not for the purpose of medical treatment. As Dr. Benton explained:

It was relayed to me in obtaining medical history from the child that he said that [D.G.] attempted to have penile oral contact, as well as described actual penile anal contact.

We note that the trial judge was careful to sustain defense counsel’s objections on those occasions when Dr. Benton’s testimony appeared to stray beyond the scope of his medical examination of the victim for sexual assault.

Over the objection of defense counsel, the trial court allowed Dr. Benton to refresh his memory by referring to the transcript of his taped interview with the victim Dr. Benton testified that his interviews with the victims of sexual assaults are audio recorded and transcribed in order to avoid any misinterpretations, i.e., it |7was prepared in the normal course of the medical examination and was used to refresh Dr. Benton’s recollection at trial. Accordingly we find it is just as much a part of the medical record as any other document and was not improperly admitted.

Counsel for D.G. complains that the trial court erred in letting Dr. Benton offer opinion testimony as to whether the victim had been coached. It is clear from the record that the judge acknowledged that Dr. Benton had acted as an expert in cases such as the instant case. Moreover, the objection does not fairly characterize the nature of Dr. Benton’s testimony regarding the possibility that the victim was coached. Dr. Benton did not express an opinion as to whether the victim was coached; he merely stated that he saw no evidence of coaching, “which is not necessarily the same as the converse that there was none, but I saw no evidence of it.” He further elaborated by explaining that while he saw no evidence of coaching, “that doesn’t exclude it absolutely.” Accordingly, we find no error in allowing this testimony.

On direct examination, Dr. Benton, testified that the seven year old victim, told him that, on multiple occasions, D.G. would ask him to put his penis in his mouth or in his anus. Dr. Benton also testified that the victim told him that his uncle sniffed his “butt.” He went on to testify that when asked what would happen next, the victim told him “that was it.” When Dr. Benton questioned the victim further, the victim again said that other than sniffing my butt, D.G. did nothing. When asked if anyone ever put anything in where the poo-poo comes out, he at first responded, “No,” but then immediately and spontaneously changed his answer to “Yes,” before Dr. Benton had a chance to ask him another question. His next response was “[D.G.] Yes.” Dr. Benton next asked the victim, “What did he put inside your behind?” The victim responded: “His private part.” Shortly ^thereafter, the transcript of the interview shows the following questions and responses:

Q. Okay. Let’s back up a bit. I asked you, has anybody put something in your behind where the poo-poo comes out? What did you say?
R. I said yes.
Q. And who did that?
R. [D.G.]

Dr. Benton confirmed this at the hearing in juvenile court. Dr. Benton testified that when he asked the victim whether “anybody put something in your behind where the poo-poo comes out, “The final answer I received was, [D.G.], yes.”

Moreover, Dr. Benton testified that by the end of his interview with the victim he had concluded that:

It is clear in my mind that by the end of this, what he meant is what I summarized, that there was an ask and a request for penile oral contact, and there was actual penile anal contact.

This is the conclusion Dr. Benton wrote in his report. The transcript of the interview is entitled: “Transcription of Patient Medical History Taken for Evaluation Diagnosis and Treatment.”

However, Dr. Benton admitted on recross examination that when asked that same question earlier in the same interview, the victim’s first answer was “no.” Dr. Benton explained that:

It’s well documented that developmentally early on when you’re questioning children they may or may not be ready to discuss the issues that they’re there for. They may be evasive of the answers, so you get an apparent inconsistency that later on as the report goes through they see how you respond to things you may develop more information. That’s not unusual, and it gives the appearance of [apparent inconsistency.]

19Our review of the transcript indicates that the juvenile judge accepted this explanation and we find no error based on the record in such a conclusion having been reached by the judge below. The testimony of the various witnesses concerning “butt” or “buttock” is not inconsistent with this conclusion when one considers that the victim could not be expected to speak with scientific precision of anatomical terms. To such a young child the “butt” would not exclude the anus. Therefore, the evidence referring to “butt,” while not sufficient in itself to prove anal contact, does not contradict Dr. Benton’s conclusion that there was anal contact.

Even in the criminal context, a relaxed evidentiary standard is applied in cases involving sex crimes against children. State v. Miller, 98-0301 (La.9/9/98), 718 So.2d 960 (where evidence of uncharged misconduct is admissible to show “lustful disposition”). A relaxed evidentiary standard has also been applied to minimize the effect of the harsh courtroom experience. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Michael H. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 MINN. L. REV. 523, 558-60 (1988) (citing state statutes providing relief). The basis of the relaxation of the rules reflects a state policy favoring the interests of the child. Miller, 718 So.2d at 960; State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037.

Folse v. Folse, 98-1976, p. 13-14 (La.6/29/99), 738 So.2d 1040, 1047-1048.

Trial court rulings on the admissibility of evidence will not be overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La.1992). State v. Richardson, 97-1995 (La.App. 4 Cir. 3/3//99), 729 So.2d 114.

D.G. complains that he was denied his constitutional right to confront his accuser, the victim, because the victim never testified. D.G., in effect, contends that this assignment of error taints virtually all of the evidence against him, |10because virtually all of it is hearsay evidence consisting of what the victim told to various people concerning the sexually assaultive behavior. The record shows that the victim was available at the courthouse during the hearing below. D.G. takes the position that that is not adequate. D.G. contends that in order to satisfy the constitutional requirement of availability, the victim should have first been called by the State so that he could then be made available to D.G. for cross-examination.

Lowery v. Collins, 988 F.2d 1364 (5th Cir.1993) appears to concern this exact issue. If Loioery holds that merely having the juvenile victim available in court is insufficient to satisfy the accused’s right of confrontation under facts that cannot be distinguished from those of this case, then we would be compelled to rule in favor of D.G. As both the State and D.G. disagree as to the meaning and applicability of Lowery, and as it involves a precise and narrow issue, the exact language used in Lowery is important. Therefore, we shall not attempt to paraphrase the critical passages in Lowery, but shall quote them as follows:

On federal habeas, the State argues that inasmuch as the child-complainant was available in the courtroom and was found competent to testify, Lowery’s constitutional right to confront the witnesses against him was not violated. Specifically, the State insists that Lowery’s failure to call the child-complainant to the stand constituted a waiver of his Sixth Amendment right. The district court credited this argument, finding that because “the complaining witness was available to testify [,] Lowery was assured of his right to cross-examine the complaining witness.” [FN20 omitted. Emphasis original.] The district court quoted from the pre-Crofy, Supreme Court case of California v. Green[, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ] as support for the proposition that “ ‘the Confrontation Clause is not violated by admitting declarant’s out-of-court statements, as long as the declar-ant is testifying as a witness [Emphasis original.] and is subject to a full and effective cross-examination.’ ” [FN21 omitted.] By that we infer that the district court equated “available to testify” with actually “testifying as a witness and [being] subject to a full and effective cross-examination.” This | ^interpretation-advanced forcefully again by the State at oral argument to this court-is a conclusion of law which we review de novo. And when we do, we find that it is simply wrong.
The State would, and the district court did, impermissibly impose on the defendant the Catch-22, so styled by the TCCA in Long[v. State, 742 S.W.2d 302 (Tex.Crim.App.1987) ], of either calling the child-complainant to the stand at the “risk [of] inflaming the jury against [himself]” or avoiding the risk of thus inflaming the jury at the cost of waiving his constitutional right to confront and cross-examine the key witness against him. As was recognized by the TCCA in Lowrey, this “no win” burden “unfairly requires the defendant to choose between his right to cross-examine a complaining witness and his right to rely on the State’s burden of proof in a criminal case.”
In White [v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) ], the Supreme Court held that the admission of a hearsay statement of a four-year-old child declarant at trial did not violate the Confrontation Clause, even though the prosecutor did not put the child-complainant on the stand or seek a finding of unavailability. But the out-of-court statement in White was held to be admissible because it fell within two clearly established exceptions to the hearsay rule-spontaneous declaration and medical examination. As the evidence had been admitted under clear exceptions to hearsay, reliability of the testimony was not at issue.

Lowery, 988 F.2d at 1369-1371.

We note the following crucial factors in Lowery: (1) The Lowery court felt that placing the defendant in the untenable position of calling the child witness-victim for cross-examination and risk inflaming the jury or, in the alternative, ||2waiving his right to confrontation, was a choice that did not meet constitutional muster. The instant case involved a judge trial so there was no jury for the juvenile defendant to inflame had he chosen to call the victim to the stand. Therefore, D.G.’s constitutional argument is not as compelling here as it was in Lowery.

Accordingly, we find that the victim was “available” for cross-examination by D.G., and that D.G. may not avail himself of the Lowery argument that he could not risk inflaming the jury by calling the victim to the stand; and, (2) Lowery stands for the proposition that clearly established exceptions to hearsay are not in violation of the confrontation clause of the Constitution. This is the real issue in this case.

The U.S. Fifth Circuit of Appeals quoted from and followed Lowery in Offor v. Scott, 72 F.3d 30 (5th Cir.1995):

We warned that Supreme Court precedent prevented a court from labeling error harmless just because “ ‘it thinks the petitioner would have been convicted even if the constitutional error had not taken place.’ ” 996 F.2d at 773 (quoting Brecht v. Abrahamson, 507 U.S. 619, 642, 113 S.Ct. 1710, 1724, 123 L.Ed.2d 353 (1993) (Stevens, J., concurring)). Under Kotteakos[ v. U.S., 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ] and Lowery, the sufficiency of the non-tainted evidence, or the duplicative nature of the tainted evidence, is simply not the issue.
* * *
In the version of Lowery decided before Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), we observed that “[t]he tainted evidence had to have had a tremendous impact in the jury-it was, after all, a videotaped interview in which a little boy described and demonstrated with anatomically correct dolls the selfsame acts of molestation that Lowery was alleged to have perpetrated on the child.” 988 F.2d at 1373. We concluded with the observation that the power of the tainted evidence was clear “when that evidence is compared to the only other basis for the conviction: physical evidence not tied to the defendant except by | ^hearsay testimony.” 988 F.2d at 1373. The jury may have heard more evidence of Offor’s guilt in this case, but not so much more as to allow us to find that the tape had no substantial and injurious influence upon the jury’s verdict.
The Confrontation Clause exists in part to keep criminal proceedings fair, and the admission of the videotape casts serious doubts on the fairness of Offor’s trial. The jury heard evidence from defense witnesses that the victim was a troubled child, desperate for attention, who had previously fabricated allegations of sexual abuse against adults disciplining her. The jury was entitled to find this evidence unworthy of credence. This evidence, however, showed that the state ran at least two risks in calling the victim to the stand. The victim might change or alter her story, or concede that she had fabricated the entire incident. Alternatively, the victim might testify to incidents of sexual abuse so great in number and under such impossible circumstances so as to undermine her credibility to the jury. The videotape allowed the state to solve these problems neatly. The state succeeded in having the jury hear its version of the victim’s story without running the risk that she might later undermine that version. The Confrontation Clause does not allow such neat solutions. Rather, it assures that cross-examination permits the kind of probing and testing that makes oral testimony reliable. That the state’s purpose in using the videotape rather than a live witness was to protect the child does not change its effect.

Offor, 72 F.3d at 33-34.

As in Lowery, the Offor court was concerned about the potentially inflammatory effect on the jury of having the defendant call the child victim to the stand. Again, as the instant case was a judge trial, this concern is not relevant. Moreover, in Of-for there is no mention of the defendant being “available” in court as was the situation in the instant case. Therefore, Offor is not as factually relevant to the instant case as is Lowery.

We find that the concern expressed by the U.S. Eight Circuit Court of Appeals in Schaal v. Gammon, 233 F.3d 1103, 1106 (8th Cir.2000), pertaining “the |14risk [of] inflaming the jury,” places it in the same category to that extent as Lowery and Offor, but for the same reason distinguishes it from the instant case where there was no jury.

Schaal also stands for the proposition that where the witness is available, as J.G. was in the instant case, that the prosecution may avail itself of established or reliable exceptions to hearsay.

Detective Coulon testified that he was told by the victim that in October of 2007, his uncle, D.G., pulled down his pants and rubbed his penis on his buttocks. On cross-examination, the detective clarified this by saying that the victim did not say penis, but instead said “private part.” The detective also acknowledged that the victim denied that D.G. rubbed his “private part” between his buttock.

Counsel for D.G. complains about the lack of temporal specificity in what the victim told to Detective Coulon and others about the timing of the abuse. The Petition for Delinquency charges D.G. with sexual battery occurring “on or between JULY 1, 2007 AND OCTOBER 31, 2007 .” However, Dr. Benton explained that at age seven children do not have the temporal sense to be specific as to date and time of a sexual assault. The juvenile judge apparently accepted this explanation as does this Court.

Detective Coulon’s testimony as to what the victim told him was admitted by the trial court as a hearsay exception on the basis that it “was in the course and scope of his investigation to determine whether or not there was probable cause to make an arrest.” We find no error in that finding. In D.G.’s original brief he raised a Lowery objection to Detective Coulon’s hearsay testimony, i.e., he should | ^not be compelled to call the child victim to the stand to attempt to refute Detective Coul-on’s testimony. However, as was explained previously in this opinion, Lowery does not apply to the facts of this case because this was not a jury trial. Therefore, we find no merit in this objection.

Counsel for D.G. contends that the admission of the videotape interview of the victim by Joan Verrett at the Child Advocacy Center also violates his confrontation clause rights in the Lowery sense. As explained above, Lowery does not apply to this case as long as a recognized hearsay exception is applicable. In the instant case La. Ch.C. art. 322 provides a “special exception to the hearsay rule allowing receipt of videotaped statements of the child’s account,” as long as the requirements set forth in La. Ch.C. art. 326 and 327 are met. Ms. Verrett gave credible uncontradicted testimony establishing that each of the requirements set forth in La. Ch.C. art. 326 and 327 were met. Therefore, we find that those requirements were met in this case and D.G. has presented no contrary argument. Accordingly, we find that the trial court did not err in allowing the admission of the videotape interview of the victim by Joan Verrett.

In the interview with Ms. Verrett, the victim stated that he lived on the 1-10 Service Road with his mother and brother. His aunt, testifying as the recipient of the first report of sexually assaultive behavior, testified that the victim told her that the sexually assaultive behavior took place at his mother’s home, which she identified as being located in New Orleans East. The victim told Dr. Benton that he lived on Bell Street with his mother and brother, but that the sexually assaultive behavior took place at his home. All of the testimony is consistent that he was the victim of sexually assaultive behavior in his home and that the home was in the Parish of Orleans. The victim’s aunt, was certainly in a position to give credible 11fitestimony as to the victim’s home with his mother, and the aunt’s testimony is consistent with the victim’s interview with Ms. Verrett when he states that he lived on the 1-10 Service Road. Therefore, the fact that a child of such tender years might have some confusion as to his home address is understandable. We find that the record sustains a finding that a reasonable fact finder could find beyond a reasonable doubt that the sexually assaultive behavior occurred in the victim’s home on the 1-10 Service Road in Orleans Parish as charged in the Petition for Delinquency.

Counsel for D.G. argues that responsive verdicts, such as attempt, are not permitted under the Children’s Code. However, as D.G. was adjudicated delinquent on the charge of sexual battery rather than attempted sexual battery, and the record supports this finding, we find that this contention is not relevant and need not be addressed by this court at this time.

At the conclusion of the adjudication hearing the juvenile judge started to impose a disposition of two years incarceration with the Office of Youth Development for a period of two years. As noted near the beginning of this opinion, both the State and counsel for D.G. asked the judge to delay sentencing and the judge agreed. Accordingly, the dispositional hearing was postponed until June 11, 2008. At this subsequent hearing the judge imposed a disposition of three years and counsel for D.G. objected to the harsher disposition saying that “there’s been no more aggravation that the Court has heard since having” originally imposed a disposition of two years. However, the juvenile judge took the position that he had not made a disposition at the first hearing and that after reviewing the record he felt that a three-year disposition was appropriate. We agree with the juvenile judge. Had the trial court felt that he had made a disposition at the first | ^hearing there would have been no reason to grant the dispositional hearing of June 11, 2008. Therefore, there has been no increase in the severity of the disposition as there was no original disposition to be increased. The only disposition is the three-year one imposed at the June 11, 2008 hearing.

Counsel for D.G. also complains that the three-year disposition is excessive. However, D.G. cites no authority in support of this contention. Citing cases involving adult defendants, the State calls to our attention the following precepts: Trial courts enjoy broad discretion because they are in the best position to assess the aggravating and mitigating circumstances. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958. The trial judge’s imposition of sentence should not be set aside as excessive absent manifest abuse of this discretion. State v. Davis, 449 So.2d 452, 453 (La.1984); State v. Forde, 482 So.2d 143, 145 (La.App. 4 Cir.1986). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. Davis, supra; State v. Trepagnier, 97-2427, p. 10 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. Because the trial court has broad discretion in imposing a sentence within statutory limits, a reviewing court can only set it aside if it is clearly excessive, rather than because another sentence might have been appropriate. Cook, supra, 95-2784, p. 3, 674 So.2d at 959; Trepagnier, supra, 97-2427, p. 10, 744 So.2d at 189. In imposing sentence, the trial judge need not articulate every aggravating and mitigating circumstance among the factors set forth in La.C.Cr.P. art. 894.1. Forde, supra. However, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. Davis, supra.

| ,8But this is a juvenile matter. La.C.Cr.P. art. 894.1 does not apply. State in the interest of T.L.V. (La.App. 2 Cir. 9/91/94), 648 So.2d 290; State in the Interest of Winstead, 385 So.2d 311 (La.App. 1 Cir.1980). However, La. Ch.C. art. 903 does apply and this Court finds that the record shows compliance with that code article. It is not required that the juvenile judge specially articulate the findings required. They may be adduced from the record. State in the interest ofT.L.V., supra. Moreover, the nature and duration of a disposition of a felony-grade delinquent act are governed by La. Ch.C. art. 897, 897.1, 898 and 901.

In rendering his decision of disposition on D.G., the trial judge stated: “Now I’ve had an opportunity to review the record, to review the reports, consider the testimony, and to think about the impact on the 7-year-old [victim].” This, along with his other rulings and comments as shown in the transcript found in the record, reflects that the dispositional decision by the juvenile judge was a considered act consistent with the requirements of the Children’s Code and not an act of whimsy. Based on the record before us, this Court cannot say that the juvenile judge failed to adhere to the requirement of La. Ch.C. art. 901 that he impose “the least restrictive disposition authorized by Articles 897 through 900 ... which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.”

DECREE

For the foregoing reasons, the adjudication of delinquency and the disposition are affirmed.

ADJUDICATION OF DELINQUENCY AND DISPOSITION AFFIRMED.

LOVE and LOMBARD, JJ., concur in the result.

      . La. 14:43.1 defines the crime of sexual battery as:
      A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
      (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
      (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

      . From the record it appears that the victim was D.G.'s seven year old nephew.

      . 742 S.W.2d at 320.

      . Lowrey v. Slate, 757 S.W.2d at 359.

      . 757 S.W.2d at 359.

      . 502 U.S. at 356, 112 S.Ct. at 743.


author: GREMILLION, Judge.

text:
    Eric Ryan WIMBERLY, et ux. v. James Orville BLUE, et al.
    No. CA 08-1535.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.

      Dennis Joseph, Vidrine Vidrine & Vid-rine, Lafayette, LA, for Plaintiffs/Appellants: Eric Ryan Wimberly Stameka Na-tía Daigle Wimberly.
    Jeffrey Ackermann Durio, McGoffin, & Stagg, Lafayette, LA, for Defendants/Ap-pellees, James Orville Blue Earline Bo-urque Blue.
    John Stafford Irion, Jr., Attorney at Law, Lafayette, LA, for Defendants/Ap-pellees, Managing Investments, Inc. John Raymond Johnson, Jr.
    Jeremy A. Hebert, Becker & Associates, Lafayette, LA, for Defendant/Appellee, Lafayette Consolidated Government.

      Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|;An exception of prescription maintained in favor of defendants/appellees, James Orville Blue and Earline Bourque Blue, dismissing the demands of plaintiffs/appellants, Eric Ryan Wimberly and Stameka Nakia Wimberly, is the subject of the present appeal. For the reasons that follow, we affirm.

FACTS

The Blues purchased Lot 2 of the Fleur De Lis Subdivision in Lafayette Parish in June 2000. They never undertook any construction on the lot. In July 2004, the Blues sold the lot to the Wimberlys. The Wimberlys purchased the lot to build a home. They did not immediately begin construction. At the time of sale, the Wimberlys did not have a survey done of the property. They did not consult any maps or plats. They were not concerned about whether the property was located in a flood zone, as there was no home on the property and flood insurance was not required at that point. The Blues were not aware of the flood zone classification of the property.

In February or March 2007, the Wim-berlys began the construction process. They hired an architect to design their home, obtained a bid for the framing of the home, and hired a surveyor, but only to establish the four corners of the foundation. As they were acting as their own general contractor in the construction, the Wimberlys applied for a building permit. They were informed, for the first time, that the lot fell within a floodway on the Flood Insurance Rate Map and a permit could not be issued. The subject suit followed.

The Wimberlys sued the Blues in redhi-bition. The Blues answered and separately filed an exception of prescription. At the hearing, counsel for the |2Wimberlys conceded that the Blues were good faith sellers. However, the Wimberlys argued that the applicable prescriptive period was one year from the date they discovered that the property could not be built upon by virtue of the designation of the land as a floodway.

The principal dispute was, and is on appeal, whether the lot was properly designated as residential or commercial property and subject to a prescriptive period of one year from the date of delivery rather than one year from the date of discovery. The trial court found that Lot 2 was residential immovable property subject to a liberative prescriptive period of one year from the date of delivery, and that the doctrine of contra non valentem was not applicable. The Wimberlys’ demands against the Blues were dismissed with prejudice. The Wimberlys appeal the findings that the lot was residential immovable property and that contra non va-lentem did not operate to interrupt prescription.

ANALYSIS

The suit filed by the Wimberlys sounds in redhibition, and seeks rescission of the sale, damages and attorney fees. The Wimberlys specifically alleged that the Blues knew or should have known of the latent defect the floodway designation represented.

1 .¡The Wimberlys argue that under the doctrine of contra non valentem, prescription did not begin to run until the discovered that the property could not be built upon. Prescription in redhibitory actions is governed by La.Civ.Code art. 2534, which reads:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

Article 2534 determines the prescriptive date based upon two criteria: 1) whether the seller knew of the defect, and 2) whether the sale involved residential or commercial property. A seller who knows of a latent defect in the thing sold and fails to disclose it, known as a “bad faith seller,” can be sued at any point up to one year from the date the buyer discovers the defect, regardless of the nature of the property sold. La.Civ.Code art. 2534(B). A seller who did not know of the defect in the thing sold can be sued within the earlier of four years from date of delivery or one year from date of discovery. La.Civ. Code art. 2534(A)(1). However, a seller of residential or commercial immovable property who did not know of the defect can only be sued within one year from the day the property was delivered to the buyer. La.Civ.Code art. 2534(A)(2). The date of discovery plays no part at all in determining the ^prescriptive period against such a seller.

The language of Afiele 2534 challenges an interpretation extending the discovery rule to cases involving the sale by a good faith seller of residential or commercial property. The article begins with the basic premise that when the seller does not know of the defect in the thing, the buyer’s redhibitory action prescribes four years from the date of delivery or one year from his discovery of the defect, whichever comes first. However, when the thing sold is residential or commercial immovable property, the buyer’s redhibitory action prescribes one year from the date of delivery. Paragraph (B) establishes the prescriptive period for bad faith sellers at one year from the date of discovery. The legislature specifically provided for the date of discovery to govern — to one degree or another — the tolling of prescription in every instance except when the thing sold is residential or commercial property.

In interpreting a statute, the supreme court has stated the following principles:

It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessaiy words or provisions were used. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). Conversely, it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless. Id.

ABL Management, Inc. v. Board of Sup’rs of Southern Univ., 00-0798, p. 6 (La.11/28/00), 773 So.2d 131, 135. To apply the discovery rule to the sale of residential or commercial immovable property, when that situation is the only one in which the legislature did not specifically provide for its application, would render subparagraph (2) of La.Civ.Code Article 2534 redundant. Had the legislature intended the discovery rule to apply to this situation, it would have provided that the prescriptive period ran from the date of discovery.

|sThe distinction between residential or commercial property and other kinds of property was the subject of our decision in Stevens v. Bruce, 04-133 (La.App. 3 Cir. 6/2/04), 878 So.2d 734. Stevens involved a claim by plaintiffs who discovered the presence of drums of hazard waste buried on the property they purchased from the defendants. The defendants filed exceptions of prescription and no cause of action. The trial court held that Article 2534 applied to all immovable property and was thus prescribed. On appeal, we held that not all property can be classified as either residential or commercial, and that if the property at issue did not meet the definitions of either of those terms as they are commonly understood, the prescriptive period that applied to that non-residential or non-commercial property was one year from the discovery of the defect.

The Wimberlys argue that “residential” only refers to property upon which structural improvements have been built. The trial court, on the other hand, held that the term refers to property that one intends to develop as a residence. The trial court’s reasoning is clearly contrary to our holding in Stevens; indeed, the defendants in Stevens had unsuccessfully posed that very argument. We do not, however, find that in the context of this property the trial court manifestly erred in finding that this land was residential as contemplated by Article 2534.

In support of the exception, the depositions of the Wimberlys and the Blues were introduced. Louisiana Code of Civil Procedure Article 931 provides that evidence may be introduced in such an instance. When evidence is so introduced, the trial court’s findings of fact are subject to the manifest error-clearly wrong standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. Under this standard, if the trial court’s findings are reasonable in light of the record reviewed in | (¡its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

As we stated in Stevens, “residential” means “used as a residence or by residents,” or “restricted to or occupied by residences,” or “of or relating to residence or residences.” Stevens, 878 So.2d at 738. Lot 2 is located in the Fleur De Lis Subdivision, a residential development. Houses sit directly across the street and behind Lot 2. Further, plaintiffs had improved the lot by installing French drains and a culvert along the entire street frontage. Viewing this evidence, we find the trial court had more than a reasonable basis for finding that Lot 2 met the definition of “residential,” for purposes of La.Civ.Code art. 2534. Pursuant to paragraph (A)(2) of Article 2534, the claim is subject to a prescriptive period of one year from the date of delivery. We affirm the trial court’s maintenance of the exception of prescription.

CONCLUSION

Civil Code Article 2534(A)(2) expressly precludes the consideration of date of the buyer’s discovery of a defect in determining the prescriptive period in a redhibition claim. The trial court’s finding that Lot 2 of the Fleur De Lis Subdivision is residential property is not manifestly erroneous. As the thing sold was residential immovable property, the applicable prescriptive period is one year from the date of delivery. The Wimberlys’ demands against the Blues, bi'ought three years from the date of delivery, are prescribed. Costs of this appeal are taxed to appellants.

AFFIRMED.

      . The doctrine of contra non valentem is a jurisprudential rule under which prescription may be suspended. Carter v. Haygood, 04-646 (La.1/19/05), 892 So.2d 1261. Louisiana has recognized four occasions in which contra non valentem is applied:
      1)where there was some legal cause that prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
      2) where there was some condition coupled with the contract or connected with the proceeding that prevented the creditor from suing or action;
      3) where the debtor himself has done some act to prevent the creditor from availing himself of his cause of action; or

        4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

        Id.


author: PICKETT, Judge. EZELL, J.

text:
    STATE of Louisiana in the Interest of P.S.T.
    No. 08-1462.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    Rehearing Denied June 24, 2009.
    Camille Joseph Giordano, Giordano & Giordano, Alexandria, LA, for Appellee, P.S. T.

      Guy Richard Lain, Attorney at Law, Ferriday, LA, for Appellee, State of Louisiana.
    Brian K. Thompson, Attorney at Law, Alexandria, LA, for Appellant, M.H.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

|]M.R.H. appeals the judgment of the trial court terminating her parental rights to her son, P.S.T.

STATEMENT OF THE CASE

M.R.H. is the mother of P.S.T., a nine-year-old boy. M.R.H. is incarcerated for multiple felonies, including theft and forgery. Her terminal release date is April 16, 2016, when P.S.T. will be sixteen.

P.S.T. lived with his mother until she was incarcerated when he was four years old. When she entered prison, P.S.T. lived with his father, L.S.T. The child was removed from L.S.T.’s custody and adjudicated a child in need of care in June 2006, when the state learned that L.S.T.’s wife had been abusing P.S.T. L.S.T. has been in the custody of the state since June 2006, residing with foster parents.

After P.S.T. entered state custody, L.S.T. disappeared. The state asked M.R.H. to submit the names of relatives or friends with whom P.S.T. could live while she served her prison term. M.R.H. provided the state with the name of a friend who was already caring for M.R.H.’s daughter. The state determined that placement with that friend was not viable. M.R.H. was unable to provide any other alternatives.

On March 31, 2008, the state fíled a Petition for Termination of Parental Rights and Certification of Minor Child for Adoption, seeking to terminate the parental rights of both L.S.T. and M.R.H. At the time of the trial in July 2008, L.S.T. was absent and represented by a curator. His parental rights were terminated, and he has not appealed that determination.

2The state proceeded against M.R.H. at the same time on the basis of La.Ch.Code art. 1015(6), which provides incarceration and failure to provide a plan for a child’s care as a ground for termination. The trial court found that the state had met its burden of proof and terminated the parental rights of M.R.H. She now appeals.

ASSIGNMENT OF ERROR

The defendant-appellant, M.R.H., asserts one assignment of error:

The trial court erred in its ruling that the termination of parental rights was in the best interests of the minor child, as mandated by Louisiana Children’s Code Article 1037(B).

DISCUSSION

Louisiana Children’s Code Article 1015(6) states:

The grounds for termination of parental rights are:

(6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

In addition to the grounds set forth in La.Ch.Code art. 1015, the state must also prove that termination of parental rights is in the best interests of the child. La.Ch. Code art. 1037(B). In this case, the state “bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” La.Ch.Code art. 1035(A). This court reviews findings in an involuntary termination |sof parental rights case under the manifest error standard of review. State in the Interest of K.G. and T.G., 02-2886, 02-2892 (La.3/18/03), 841 So.2d 759.

In this appeal, M.R.H. does not contest the trial court’s finding that the state proved by clear and convincing evidence that she was incarcerated for an extended period of time and failed to provide an adequate plan for the care of the minor child. Rather, M.R.H. asserts that the state failed to prove that termination was in the best interests of the child. Since P.S.T. entered state custody, she argues, M.R.H. and P.S.T. have visited monthly and developed a significant bond. M.R.H. and P.S.T. have begin to discuss plans for when M.R.H. is released from prison.

The social worker assigned to the case testified that the foster parents who care for P.S.T. have considered adoption and that she had discussed the possibility of adoption with P.S.T. Even if the foster parents did adopt, the social worker indicated that they planned to facilitate P.S.T.’s visits with his mother. She did not testify that the foster parents were committed to adoption. While the foster parents have established a good relationship with P.S.T., he remains close to his mother. The foster parents did not testify in this case.

We note that while La.Gh.Code art. 1037(B) mandates the entry of written findings on the grounds for termination and the best interests of the child when a trial court terminates parental rights. Here, the trial court failed to enter written reasons, though it did enter an oral ruling immediately after the trial. In its oral reasons for ruling, the trial court clearly articulated why the state had met the grounds for termination of M.R.H.’s parental rights pursuant to La.Ch.Code art. 1015(6). The |4trial court only mentioned the best interests of the child in response to a request by M.R.H.’s counsel after it had made a decision. The court cited the need for permanency and stability in P.S.T.’s life, but failed to articulate the reason why termination of this parent’s parental rights to this child are in the best interests of the child. Likewise, the court failed to articulate why the possibility of permanency outweighs the mother’s rights. The trial court was obviously concerned about the well-being of the P.S.T. as a result of its judgment terminating parental rights, evidenced by the fact that the trial court ordered counseling for P.S.T. and M.R.H. concerning termination and adoption in its final judgment.

The evidence indicates that P.S.T. is doing well with foster parents and has established a bond with his mother that includes plans after her future release from jail. While we agree that this situation is not ideal, we cannot say that termination of M.R.H.’s parental rights is in the best interests of P.S.T. This is especially true in light of the uncertainty regarding the foster parents’ willingness to adopt and the concern of all the parties, including the trial court, about P.S.T.’s well-being in light of a judgment of termination. We find the state failed to prove by clear and convincing evidence that termination of M.R.H.’s parental rights is in the best interests of P.S.T. See State in the Interest of C.D. andJ.C. v. L.C., 01-663 (La.App. 3 Cir. 10/3/01), 796 So.2d 844, writ denied, 01-2986 (La.11/20/01), 801 So.2d 1079.

| ¿CONCLUSION

The judgment of the trial court terminating M.R.H.’s parental rights is reversed. Costs of this appeal are assessed to the state in the amount of $895.50.

REVERSED AND RENDERED.

EZELL, J., dissents and assigns written reasons.

PAINTER, J. dissents for the reasons assigned by Judge EZELL.

EZELL, J.

dissents.

Lin this termination of parental rights case, the mother of the child has been in prison since 2004 and will not be released until April 16, 2016. The majority proposes to reverse the trial court’s ruling terminating the parental rights of the mother. The father does not object to the termination of his parental rights. The majority finds that the State does not prove that termination of the mother’s rights were proven by the State.

The child was born on October 15, 1999, thus making the child nine-and-a-half years old currently. He has not been cared for by his mother for almost five years. The first visit with the mother was in prison on September 18, 2006 and this began regular visits by the child.

Only in exceptional cases, when a parent was not absent or did not cause the child to be placed in the State’s care, have we reversed a termination case. When that parent objects to his or her rights being terminated. This mother has a past history of irresponsible actions and illegal activity and caused herself to be sentenced to a period of incarceration of such duration that she will not be able to care for this child for an extended period of time. This fact, along with five other factors; (1) the child’s age, (2) the child’s need for a safe loving environment, (3) the child’s need for a stable lifestyle, (4) a permanent place of residence (including school, church and friends), and (5) failure of this mother to provide a plan for this child other than foster |2care, must be looked at as the factors in determining the best interest of this child. All of these factors were not favorable on the mother’s part. Clear and convincing evidence is really a question for the trial judge, and we can only review under a manifest error standard. I can only say that I find clear and convincing evidence that it is not in the best interest of this child to rely on the hopes of a parent.

After reading the record, I have not found any testimony to show that this mother and child have a significant bond. All parents love their children, but in some cases love is not enough. This parent committed these crimes when she was pregnant with this child. I did find evidence that the child and mother have verbalized that they love each other. But to me, the evidence presented is clear that this little boy could be adopted. The testimony of the CASA worker indicates that the foster parents have made this child a part of their family.

Again, I must say that this court and the first circuit, in exceptional cases, have not terminated the parental rights when the parent can not provide for a child and or has not provided a reasonable plan for the care of the child. I do not find this to be an exceptional case. In the Interest of C.D. and J.C. v. L.C., 01-663 (La.App. 3 Cir. 10/3/01), 796 So.2d 844, can be distinguished from the case before us.

I must respectfully disagree with the majority’s opinion to reverse the trial court.