author: STEWART, J.

text:
    Alan S. VICK and Amy Vick, Plaintiffs-Appellees v. Barry J. PANKEY and Terry L. Pankey, Defendants-Appellants.
    No. 44,430-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Newman & Oliveaux by Todd G. Newman, Trey N. Magee, Monroe, for Defendant-Appellant, Barry J. Pankey.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson by Michael L. DuBos, K. Lamar Walters, III, Monroe, for Plaintiffs-Appel-lees Alan S. Vick and Amy Vick.
    Wright & Underwood by Bobby N. Underwood, West Monroe, for Plaintiff-Ap-pellee, Terry L. Pankey.

      Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

1 )Defendant/Appellant, Barry J. Pan-key, is appealing a judgment rendered in favor of Plaintiffs/Appellees, Alan S. Vick and Amy Vick. For the reasons stated herein, we affirm the trial court’s judgment.

Facts

On August 18, 2004, both parties attended a mud track automobile race at the Calhoun Mud Bowl in Calhoun, Louisiana. A physical altercation ensued between Barry Pankey, his brother Terry Pankey, and Mr. Vick. Mr. Vick alleges that he was attacked without provocation, while Barry and Terry Pankey contend that Mr. Vick was intoxicated and provoked the fight. The Pankey brothers contend that Mr. Vick threw the first punch at Terry Pan-key. Because Mr. Vick initiated the fight, Barry Pankey argues that he was acting in self-defense as to any role he may have had in this incident.

As a result of the altercation, Mr. Vick sustained several injuries, including multiple shattered facial bones requiring six titanium plates and 27 screws to be surgically installed in his face, as well as broken orbital bones, a broken nose and a broken palate. He also was rendered blind for two weeks after the accident. His mouth was wired for months and he could not eat solid foods for over six weeks. Mr. Vick testified that he incurred approximately $46,000.00 in medical expenses related to the treatment of the injuries he sustained from the altercation. Further, he was unable to work until June, which was approximately six weeks later.

|2After reviewing a video recording of the altercation, the trial court ruled in favor of the Vicks. According to the trial court, the video showed Terry Pankey attempting to punch Mr. Vick. Then, Barry Pankey punched Mr. Vick in the face with his fists. Mr. Vick was “backing up” or “retreating” the entire time. The trial court found that the video clearly showed Mr. Vick attempting a “defensive effort” as best he could. When Mr. Vick fell to the ground, Barry Pankey continued to batter him. The trial court determined that “insults and intoxication alone provide no legal escape from liability caused by a beating such as this.” Even if Mr. Vick was the physical aggressor, the degree of force used by the Pankey brothers to repel any such aggression was totally out of proportion to what was necessary to stop Mr. Vick. The Pankey brothers’ actions were excessive.

The Vicks were awarded $44,918.40 in medical expenses, $6,800.00 in lost wages, $250,000.00 in general damages, and $6,000.00 in loss of consortium to Mrs. Vick. Barry Pankey and Terry Pankey were cast in judgment as solidary obligors. Barry Pankey now appeals. :

LAW AND DISCUSSION

Comparative Fault

Pankey asserts two assignments of error on appeal. In his first assignment of error, he argues that even though the trial court based its opinion on La. C.C. art. 2315, it failed to apportion fault pursuant to La. C.C. art. 2323. More specifically, Pankey alleges that the trial court |3erroneousIy ignored the intentional acts of the plaintiff and failed to reduce the amount of damages accordingly.

On appeal, the reviewing court may not set aside a trial court’s findings in the absence of manifest error or unless they are clearly wrong. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those made by the trial court, reasonable evaluations of credibility and reasonable inferences of fact are not disturbed on appeal where conflicting testimony exists. To reverse a trial court’s factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Hanger One MLU, Inc. v. Unopened Succession of James C. Rogers, 43,120 (La.App. 2 Cir. 4/16/08), 981 So.2d 175; Green v. Nunley, 42,343 (La.App. 2 Cir. 8/15/07), 963 So.2d 486.

Tort liability is based on La.C.C. art. 2315, which provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Further, La. C.C. art. 2323 states:

A.In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or Lloss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

The factors to be considered by the courts in determining the percentages of fault are the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Id.

| Nonetheless, Louisiana’s aggressor doctrine precludes tort recovery where the plaintiff acts in such a way as to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating has used excessive force to repel the aggression. Duck v. McClure, 36,045 (La.App. 2 Cir. 5/8/02), 819 So.2d 1070.

The issues of which party was the aggressor and whether excessive force was used in repelling the attack are questions of fact that must be determined from the peculiar facts and circumstances of each case. Clark v. Blanchard, 2000-2750 (La.App. 4th Cir.11/14/01), 802 So.2d 824. Under La. C.C. art. 2315, the proper standard to evaluate a defendant’s action is whether the conduct was that generally required of a reasonable man under the like circumstances. La. C.C. art. 2315. Various factors relied upon by the courts to determine the reasonableness of the actions of the party being attacked are the character and reputation of the attacker, the belligerence of the attacker, a large difference in size and strength between the parties, an overt act by the attacker, threats of serious bodily harm, and the impossibility of a peaceful retreat. Slayton v. McDonald, 29,257 (La.App. 2 Cir. 2/26/97), 690 So.2d 914.

The video shows Terry Pankey, at the very least, attempting to punch Mr. Vick. Then, Barry Pankey punched Mr. Vick several times in the face. Mr. Vick is backing away from Barry Pankey the entire time. Even when Mr. Vick fell to the ground, Barry Pankey continued to punch him.

| r,Barry Pankey argues that the evidence introduced at trial is compelling in showing that Mr. Vick’s actions and behavior made him the provocateur in the fight, and that his actions leading up to the fight were intentional and rise far beyond mere negligence. He further testified that the intentional acts and belligerence of Mr. Vick, as well as his obscene language, were the initial catalyst of the subsequent fight. For these reasons, Pankey urges that the trial court failed to apportion fault to Mr. Vick, whose intentional wrongdoing was a contributing factor and substantial cause of his injuries.

The trial court determined that “insults and intoxication alone fail to provide a legal escape from liability caused by a beating such as this.” Even if Barry Pan-key was provoked by Mr. Vick as he alleges, he clearly responded in a manner that was inappropriate and unnecessarily excessive under the circumstances. This determination is clearly supported by the record. The trial court was correct in finding that Barry and Terry Pankey were 100% at fault for the injuries suffered by Mr. Vick. Therefore, we find that this assignment of error is meritless.

General Damages

Pankey’s second assignment of error alleges that the trial court’s general damage award in the amount of $250,000.00 is excessive and an abuse of the trial court’s discretion. To support this assignment, Pankey merely notes that although Mr. Vick’s injuries are significant, they do not merit $250,000.00 in general damages.

|7La. C.C. art. 2324.1 provides that in the assessment of damages, much discretion must be left to the judge or jury. To modify an award for general damages, an appellate court must find that the trial judge or jury has abused the “much discretion” accorded by the statute. Stegall v. State Farm Mutual Automobile Insurance Company, 29,986 (La.App. 2d Cir.10/29/97), 702 So.2d 66. With respect to the award of general damages, each case must be weighed and evaluated according to its own particular facts and circumstances. Id. Resort to prior awards is appropriate only after determining whether an abuse of discretion occurred and then only for the purpose of determining the highest or lowest point which is reasonably within the trial court’s discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of life or lifestyle that cannot be measured definitely in terms of money. Kose v. Cablevision of Shreveport, 32,855 (La.App. 2d Cir.4/5/00), 755 So.2d 1039, writs denied, 2000-1177, 2000-1289 (La.6/16/2000), 764 So.2d 964, 765 So.2d 340. There is no mechanical rule for determining general damages; the facts and circumstances of each case control. Id. The factors to be considered in assessing quantum for pain and suffering are severity and duration. There is no rule or standard of law fixing or establishing the amount of recovery and each case, consequently, |smust rest on its own set of facts. Stegall v. State Farm Mutual Automobile Insurance Company, supra.

As mentioned above, Mr. Vick sustained severe injuries from the altercation. He testified that both of his orbitals were busted and that his nose was broken. He also stated that his palate was broken in half and separated from his skull. Six titanium plates and 27 screws had to be surgically installed in his face. He mentioned lasting effects from the altercation, including a scarred face, altered eating habits, and the hole in his nose. When his mouth was wired shut, his teeth weren’t put together straight, so he constantly breaks his teeth. Mr. Vick also testified that his smile was not the same. He testified he is now in constant pain from these injuries. The medical records corroborated Mr. Vick’s testimony.

After carefully reviewing the medical records and the testimonies given, we do not believe that the trial court abused its discretion in awarding Mr. Vick $250,000.00 in general damages. The lasting effects resulting from this altercation, including the physical scars and pain Mr. Vick has sustained, are mox-e than adequate to support this award for general damages. Thus, this assignment of error is without merit.

Additionally, La. C.C.P. arts. 1911-1922 require more specificity in final judgments than the trial court provided in this case. In its judgment, the trial court failed to specifically name the plaintiffs and defendants in this action. We amend the judgment to name Alan Vick and Amy Vick as the plaintiffs, and Barry Pankey and Terry Pankey as the defendants.

^CONCLUSION

For the reasons set forth above, the judgment is affirmed as amended. All costs are assessed against the appellant, Barry Pankey.

AFFIRMED, AS AMENDED.

      . Defendant Terry Pankey did not join Defendant Barry Pankey in this appeal.

      . The trial court found that Mr. Vick was not the physical aggressor in the altercation.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. William Troy MANNING, Appellant.
    No. 44,403-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Louisiana Appellate Project, by Mark O. Foster, for Appellant.
    Robert W. Levy, District Attorney, Laurie Whitten, Samuel Andrew Shealy, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| defendant, William Troy Manning, was convicted of aggravated burglary, in violation of La. R.S. 14:60, and attempted aggravated rape, in violation of La. R.S. 14:27 and 14:42. He was sentenced to serve 30 years at hard labor without benefit of probation, parole or suspension of sentence for each of the convictions to be served concurrently. Defendant appeals. For the reasons stated herein, Defendant’s convictions and sentences are affirmed and the trial court is instructed to provide written notification to Defendant of the sex offender notification requirements outlined in La. R.S. 15:573.

FACTS

On the night of July 3, 2006, in Ruston, Louisiana, roommates S.M. and B.M. went to bed after staying up talking. The roommates, both in their early twenties and still nervous about living in their first house, made sure to lock the doors and windows of their house before going to bed. B.M. went to her bedroom and fell asleep while watching a movie.

At some point in the early morning hours of July 4, 2006, S.M. woke up to see a man standing beside her bed. She made an attempt to get out of the bed and run, but the man grabbed her and threw her back onto the bed. The man positioned himself on top of S.M., held a sharp, shiny object to her neck and told her that he would hurt her if she did not remain quiet. The man started to remove her shorts and S.M. screamed for him not to hurt her. B.M., in a nearby bedroom, heard the commotion in S.M.’s bedroom. When B.M. turned the light on in an adjoining bathroom, she saw the man in the bed on top of S.M. B.M. yelled for the man to get off of her roommate, and |.¿eventually B.M. was able to get the man off of S.M. by hitting him with her fist. In the ensuing struggle, S.M. grabbed the sharp object and began stabbing the man with it. The man eventually broke free and moved toward the front door he had left open in the living room. B.M. and S.M. caught the man again, another struggled ensued and S.M. stabbed the man again. As the man broke free, his shirt was ripped and his green John Deere hat fell off. The man exited through the front door and ran west from the women’s home. B.M. and S.M. observed the man walking with a limp. S.M. also realized that the sharp object that the man had used to restrain her, and that she later used to stab him, was a gold fork she had left in her kitchen sink.

B.M. called the sheriffs office for assistance. While waiting for the sheriff deputies to arrive, B.M. attempted to secure the house. As she walked through the house, B.M. noticed that the aircondition-ing unit had been removed from one of the windows and that the window was left open.

Lieutenant Greg Franklin of the Lincoln Parish Sheriffs Office was dispatched to the women’s home where he took an initial statement from the victims. The women described the perpetrator as a white male in his mid-thirties, with a height between 5 feet 4 inches and 5 feet 7 inches. The man was unshaven, had bad teeth and was balding, yet had greasy dirty blonde shoulder-length hair. He was wearing pants and a dark T-shirt. Lt. Franklin gave the description to dispatch and a “Be On the Lookout” order was issued to officers in the area. While securing the scene, Lt. Franklin noticed a Bud Light beer can on top of a window screen on the ground next to the running ah* conditioning unit.

hJnvestigator George Webb of the Lincoln Parish Sheriffs Office was called to the scene. He noticed footprints and scarred paint on the windowsill of the window that once held the air conditioning unit. He also took photos of the crime scene and dusted the area for latent fingerprints. On hearing the description of the perpetrator, Investigator Webb believed that Defendant, who he knew lived less than a mile away because of previous incidents, matched the description. He asked another deputy, Brad Wall, to make contact with Defendant at his home.

The following day, July 5, 2006, Investigator Webb showed B.M. and S.M. a photo lineup of suspects matching their description of the perpetrator. B.M. could not make an identification. S.M., on the other hand, identified Defendant — stating that she was 99 percent sure that Defendant was the perpetrator. S.M. told Investigator Webb that she would be absolutely certain that Defendant was the perpetrator if she heard his voice. Investigator Webb played a tape recording of Defendant’s voice, and S.M. stated that she was certain that Defendant was the perpetrator.

Investigator Webb subsequently obtained an arrest warrant for Defendant on July 6, 2006; however, because Defendant could not be found, the warrant was not executed until eight days later, on July 12, 2006, at which time Defendant turned himself in at the Sheriffs Office.

After informing Defendant of his Miranda rights, Investigator Webb interviewed Defendant who told Investigator Webb that he owned a John Deere hat similar to the one left by the perpetrator and that he had lost the hat near the victim’s home. Defendant further related that he owned a pair |4of boots that made footprints similar to the print left in the windowsill, that he was drunk the night of the incident and may have been drinking Bud Light. Finally, Defendant told the investigator that he wore a partial plate of dentures that was missing front teeth and had an injury in his right knee that caused him to limp. Investigator Webb asked Defendant to remove his shirt and then Investigator Webb observed scratch marks and puncture wounds around Defendant’s neck.

Defendant was subsequently indicted for the offenses of aggravated burglary, a violation of La. R.S. 14:60, and the attempted aggravated rape of S.M., a violation of La. R.S. 14:27 and 14:42. After a two-day trial, a jury found Defendant guilty as charged. The court ordered a presentence investigation report. Prior to imposing the sentences, the court considered statements made in the presentence investigation report and weighed aggravated and mitigating factors. The court found as aggravating factors: the seriousness of the crime and the fact that the crime involved a sex offense, the use of violence and injuries to more than one person. The court also recognized that Defendant had a lengthy criminal history, suffered from substance abuse issues and violated previous grants of probation and parole. The court found no mitigating factors.

The court ultimately sentenced Defendant to serve 30 years at hard labor for the aggravated burglary conviction and to serve 30 years at hard labor for the attempted aggravated rape conviction. Each sentence was to be served concurrently with the other sentence and both sentences were to be served without the benefit of probation, parole or suspension of sentence.

| ¿The court informed Defendant that his convictions involved crimes of violence, that he would have to comply with the sex offender registration requirements and that he had two years to file for post-conviction relief. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The conviction of Mr. Manning for aggravated burglary and attempt- ' ed aggravated rape, violated his constitutional right against double jeopardy.

Defendant argues that his prosecution for the offenses of aggravated burglary and attempted aggravated rape is a violation of his protection against double jeopardy. We disagree.

A person cannot twice be put in jeopardy for the same offense. U.S. Const. amend. V; La. Const. art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Ceasar, 37,770 (La.App. 2d Cir.10/9/03), 856 So.2d 236. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Louisiana also uses the broader “same evidence” test which dictates that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one.

6State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988). This test depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Knowles, supra,, on subsequent appeal, 395 So.2d 678 (La.1981).

Aggravated burglary is defined in La. R.S. 14:60 as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

In order to prove aggravated burglary, therefore, the state must prove beyond a reasonable doubt that the defendant made an unauthorized entry into an inhabited dwelling with the intent to commit a felony or theft. In addition, the state must prove beyond a reasonable doubt the existence of one of the three aggravating factors.

The crimes of aggravated burglary and attempted aggravated rape do not contain identical elements. The crime of aggravated burglary requires the element of an unauthorized entry; aggravated rape does not. The crime of attempted aggravated rape requires attempted sexual intercourse; aggravated burglary does not. Under the same evidence test, however, crimes need not be identical in elements in order for double jeopardy to apply. The crucial determination is whether the evidence necessary for a [7conviction of aggravated burglary was the same evidence necessary for a conviction of attempted aggravated rape, or vice versa.

This court addressed the double jeopardy implications of a defendant charged with aggravated burglary and attempted forcible rape in State v. Lockhart, 457 So.2d 176 (La.App. 2d Cir.1984). In Lockhart, the victim invited the defendant, a distant relative, into her home to use her bathroom. While in the home, the defendant attempted to rape her. The state prosecuted the defendant for aggravated burglary, and he was convicted as charged. The supreme court eventually reversed the defendant’s conviction. The court reasoned that the evidence did not show that the defendant made an unauthorized entry into the victim’s home, as is required to prove aggravated burglary. Id. In light of the reversal, the state attempted to prosecute the defendant for the attempted forcible rape of the victim. The defendant filed a motion to quash the bill of information on the grounds of double jeopardy. The trial court denied the defendant’s motion, and the defendant sought writs with this court. In reaching its decision, this court recognized that the state had tried to prove aggravated burglary in the initial prosecution by showing that the defendant made an unauthorized entry in an attempt to commit a battery on the victim — the third aggravating factor for aggravated burglary. The court, after considering rape to be a “battery” under the aggravated burglary statute, held that, under the “same evidence” test of double jeopardy, evidence needed to convict the defendant of attempted forcible rape would be the same evidence needed to convict him of aggravated burglary. The prohibition against double jeopardy thus |8attached, and the state was precluded from prosecuting the defendant for the attempted forcible rape.

The Lockhart holding, however, was distinguished in a later case. In State v. Robertson, supra, this court held that double jeopardy was not violated when a defendant was convicted of both aggravated burglary and aggravated rape because the facts showed that the defendant committed two separate and distinct acts. In Robertson, the defendant entered the bedroom of the victim, struck her on the head and demanded money. He left the bedroom for several minutes, returned, struck the victim twice, and raped her. In ruling that the aggravated burglary and aggravated rape were two distinct acts, this court reasoned that the aggravated burglary was complete when the defendant entered the victim’s bedroom, hit her and then demanded money. The aggravated rape, on the other hand, did not occur until the defendant returned, struck the victim twice, raped her and left. Evidence of the rape would not be needed to prove the aggravating factor of a battery for the aggravated burglary charge.

Applying the above reasoning to the instant case, we conclude that double jeopardy was not violated because the evidence required to support a finding of guilt for the attempted aggravated rape charge is not needed to support a conviction for the aggravated burglary charge. First, the aggravated burglary charge could have been proven under the second aggravated factor under La. R.S. 14:60 — the defendant arming himself with a dangerous weapon after entering an inhabited dwelling. The evidence presented at trial showed that Defendant entered the victims’ home by [nremoving the air conditioning unit from a window; and, once inside, he armed himself with a gold fork from the kitchen sink. He then held the gold fork up to S.M.’s neck in an effort to restrain her as he attacked her. Under La. R.S. 14:2(3) a “dangerous weapon” includes any instrumentality which in the manner used is likely to produce great bodily harm to a person. A fork held up to S.M.’s neck in the instant case arguably constitutes a dangerous weapon. Thus, under the second aggravating factor of La. R.S. 14:60, evidence of the rape would not be needed to show that an aggravated burglary was committed.

Second, the aggravated burglary charge could have also been proven by evidence of Defendant’s battery of S.M., thus making the battery to S.M. a separate and distinct battery from the attempted rape for the purposes of the aggravating factor under La. R.S. 14:60. The evidence presented at trial showed that Defendant committed a battery on S.M. when he threw her back onto the bed after she tried to escape. This battery was completed when S.M. was thrown onto the bed and the attempted aggravated rape occurred separately when Defendant positioned himself on top of S.M., held a fork to her neck, told her to remain quiet or he would hurt her and then started to remove her shorts.

Unlike Lockhart, the aggravated burglary charge in this case was not dependent on the rape offense to be the aggravating factor under the statute. The evidence in this case could have been used to prove that an aggravated burglary occurred because of the existence of a dangerous weapon or the 1 ^separate battery of S.M. We find no double jeopardy implications. This assignment is without merit.

Assignment of Error Number Two (verbatim): The evidence was insufficient to support the conviction for attempted aggravated rape, in violation of La. R.S. 14:27 & 14:42.

The question of sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal. State v. Howard, 31,807 (La.App. 2d Cir.8/18/99), 746 So.2d 49, writ denied, 99-2960 (La.5/5/00), 760 So.2d 1190. Although the record does not i’eflect that Defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 11701 So.2d 1333. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Aggravated Rape is defined in La. R.S. 14:42, which provides in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is pi-evented from resisting the act because the offender is armed with a dangerous weapon.

An attempt, as defined in La. R.S. 14:27(A), occurs when: Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his objective. Thus, in order to prove attempted aggravated rape, the state would have to prove beyond a reasonable doubt that the defendant had the specific intent to and engaged in an act for the purpose of carrying out sexual intercourse without the lawful consent of the victim and the existence of one of the aggravating factors.

|12In the case snb judice, Defendant argues that the evidence does not show that a sexual touching occurred that would warrant a rape conviction. He also asserts, that there was no evidence that he attempted to disrobe or make any other preparations to rape S.M. According to Defendant, the evidence shows that he was “merely robbing the house, and when he woke up the victim, he was trying to keep her quiet, until he could make his escape.”

The State acknowledges that no skin-to-skin sexual touching occurred between Defendant and S.M., but argues that evidence of skin-to-skin contact is not required to prove an attempted aggravated rape under State v. Fuller, 514 So.2d 657 (La.App. 2d Cir.1987). In Fuller, this court concluded that the evidence supported an attempted aggravated rape conviction when the defendant had the victim pinned to the floor, his legs wrapped around her and he was attempting to remove the victim’s shorts when her neighbor intervened.

After reviewing the record in this case, we conclude that the evidence presented at trial was sufficient for a rational trier of fact to find that Defendant committed an attempted aggravated rape of S.M. when he prevented her from resisting his attack by holding a fork to her neck. At trial, S.M. testified that Defendant held a sharp, shiny object to her neck as he positioned himself on top of her. She further testified that Defendant told her that he would hurt her if she did not remain quiet. He then started to remove her shorts before B.M. intervened and prevented Defendant from completing the act. S.M. also testified that she took the sharp object from 1 ^Defendant’s hand and stabbed him with it. She later recognized the object as one of her gold forks. The jury was also presented with a photograph of the bent fork at trial.

Whether the fork could be deemed a dangerous weapon under La. R.S. 14:42 is a factual question for the jury to determine after considering not only the character of the weapon, but by whom, upon whom and in what manner it was used. State v. Pamilton, 43,112 (La.App. 2d Cir.3/19/08), 979 So.2d 648, writ denied, 08-1381 (La.2/13/09), 999 So.2d 1145. In addition, although Defendant did not penetrate S.M. or have any skin-to-skin contact with her, those circumstances are not required to prove attempted aggravated rape. State v. Fuller, supra.

Ultimately, after viewing the evidence in the light most favorable to the prosecution, we find that the evidence presented at trial was sufficient for a rational juror to have found beyond a reasonable doubt that Defendant committed an attempted aggravated rape on S.M. The evidence showed that Defendant forced S.M. onto her bed, held a fork to her neck, told her to be quiet or he would hurt her and tried to remove her shorts. This assignment is without merit.

Assignment of Error Number Three (verbatim): The trial court was in error to deny Mr. Manning’s objection to the state’s failure to provide discovery of its showing his photographs to the witness B.M. and her subsequent inconsistent statement.

Defendant argues that the State “sandbagged” him when it did not inform him that it had shown B.M. other photos of him almost two years after the initial photographic lineup and that B.M. identified him as the perpetrator after viewing those photos. Since B.M. could not identify him at | uthe initial lineup, Defendant contends that the State had a continuing duty under La. C. Cr. P. art. 729.3 to disclose B.M.’s identification of Defendant. Defendant argues that, because of the State’s failure to disclosure the identification, he was not able to adequately cross-examine B.M. at trial.

The State agrees that pictures of Defendant were shown to B.M. before his arrest and again after his arrest, but before trial, and that B.M. identified Defendant as the perpetrator in the second photo lineup. The State, however, argues that no discovery violation occurred because (1) B.M.’s subsequent identification was not an inconsistent statement that would have warranted disclosure, (2) B.M. identified Defendant as the perpetrator at trial, thus making the earlier identification duplica-tive, (3) B.M. admitted at trial that she could not identify Defendant as the perpetrator at the first lineup and (4) Defendant was able to cross-examine B.M. at trial. We agree.

Suppression by the prosecution of evidence favorable to an accused upon his request for such evidence violates due process where the evidence is material, either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Barker, 628 So.2d 168 (La.App. 2d Cir.1993), writ denied, 93-3194 (La.3/25/94), 635 So.2d 236. The term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence. There are three components of a true Brady claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; | iS(2) that evidence must have been suppressed by the state, either wilfully or inadvertently; and (3) prejudice must have ensued. State v. Garrick, 03-0137 (La.4/14/04), 870 So.2d 990. A discovery violation involving the state’s failure to disclose exculpatory evidence does not require reversal as a matter of the due process clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Id.

Under La. C. Cr. P. art. 723, statements made by witnesses to the state are not discoverable. Nevertheless, the state has a duty to disclose all witness statements that are favorable to the defendant and are material and relevant in determining guilt or innocence. La. C. Cr. P. art. 718.

As noted, not every failure by the state to comply with discovery rules automatically requires a reversal. Only when such a failure results in prejudice to the defendant does it constitute reversible error. In the event of the state’s failure to comply with the discovery rules, it must be determined whether the defendant was actually prejudiced by the nondisclosure and whether the trial court abused its discretion. State v. James, 38,353 (La.App. 2d Cir.5/12/04), 873 So.2d 858. It is only when the defendant is lulled into a misapprehension of the strength of the state’s case through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, that basic unfairness results, which constitutes reversible error. State v. Allen, 94-2262 (La.11/13/95), 663 So.2d 686. The effects of a discovery | ^violation may be remedied by effective cross-examination. State v. James, supra.

At trial, the photographic lineup presented to B.M. one day after the incident was introduced into evidence. B.M. wrote on the lineup that she could not identify the perpetrator from the photographs of candidates (which included Defendant). B.M. testified that she could not identify the perpetrator from the photographs because none of the candidates were wearing caps. The State then attempted to get B.M. to identify Defendant as the perpetrator by showing her various photos taken of Defendant by Investigator Webb eight days after the incident. Defendant objected to the State’s purported identification on the grounds that, although the State provided him with the various photos during discovery, it never told him that B.M. identified him as the perpetrator after seeing those photos. The State argued that, since the various photos were already introduced into evidence and had been provided in discovery, it was permitted to question B.M. about the various photos and get her to make an in-court identification. The State also argued that Defendant would be allowed to cross-examine about her seemingly inconsistent identifications.

The trial court overruled Defendant’s objection. The court reasoned that, under State v. Long, 408 So.2d 1221 (La.1982), the complete failure of a witness to pick out the accused at a pretrial identification proceeding did not prevent the witness from identifying the accused as the offender at trial. The court cited additional cases holding that a witness could make an in-court identification even if the witness had failed to pick the accused |17from a pretrial lineup. The failure would go to the weight of the testimony, not its admissibility. See State v. Wright, 410 So.2d 1092 (La.1982); State v. Jefferson, 606 So.2d 869 (La.App. 2d Cir.1992).

We find no error in the ruling of the trial court. The inconsistency in B.M.’s identification of Defendant as the perpetrator was a credibility issue to be weighed by the jury. In State v. Wright, supra, a witness to a robbery was shown a photographic lineup by police officers. The witness was only tentatively able to identify the offender from the presented photographs, saying that one of the men in the photographs resembled one of the robbers. The witness could not positively identify any of the defendants as the offenders at trial. The court held that partial or tentative identification goes to the weight, rather than the admissibility of the evidence. Thus, the witness’s identification was admissible, but it was left to the jury to determine its importance when comparing it to the other evidence.

Similarly, in State v. Jefferson, supra, one witness to an armed robbery could not identify the offender in one of the pictures listed in a photographic lineup. Later at trial, however, she was able to identify the defendant as the offender. During her testimony, the witness explained why she could not identify the defendant as the offender in the initial photographic lineup: “she told the police she could not identify the robber by the photos, but that if she saw him again in person, she would know him, explaining, ‘it was the man I saw and not the picture.’ ” The Jefferson court, citing Wright, supra, stated that a witness’s failure to identify an accused at a pretrial lineup does not render a later in-court identification inadmissible | isand that a failure to identify a suspect at a pretrial lineup is a matter which addresses itself to the weight of the witness’s testimony rather than its admissibility. Id. The court also said that the in-court identification of the defendant by a witness who failed to previously identify the defendant as the offender in a pretrial lineup is a credibility issue that must be resolved by the trier of fact. Id.

In the present case, B.M.’s in-court identification of Defendant as the perpetrator would also be a credibility issue that would need to be weighed by the jury. Defendant could then attack B.M.’s credibility at trial under La. C.E. art. 607. The record shows that defense counsel cross-examined B.M. thoroughly on her identification of Defendant.

We note that, even if the State’s failure to disclose B.M.’s subsequent identification of Defendant was a Brady or discovery rule violation and, therefore, the State had a continuing duty to disclose B.M.’s later identification to Defendant, we conclude that Defendant was not prejudiced by the State’s failure to disclose. B.M. testified that she previously could not identify Defendant from the photographic lineup, but that she later identified Defendant when the assistant district attorney gave her a picture of Defendant and asked if she recognized him. She also made an in-court identification independent of any past photos she viewed. B.M. explained that her earlier problems in identifying Defendant as the offender were because the photos did not provide her with a full body view of Defendant. B.M. was also able to give an accurate and exhaustive description of Defendant as the perpetrator in the police reports soon after the incident. 11¡¡Finally, Defendant was able to cross-examine B.M. In light of these facts, we find that Defendant was not prejudiced by the State’s failure to disclose the identification of Defendant by B.M. This assignment is without merit.

Assignment of Error Number Four (verbatim): The trial court was in error to sustain the state’s hearsay objection to Mr. Manning’s trial counsel questioning Investigator Webb about the statement made to him by Mr. Manning.

During direct examination, the district attorney questioned Investigator Webb about his interview with Defendant. As previously mentioned, in the interview, Defendant told the investigator that he owned a hat similar to the one left at the victims’ home, that he lost his hat in front of the victims’ home, that he was in the area the night of the incident, that he had been drinking the night of the incident, that he owned boots with a footprint similar to the print found at the home, and, most importantly to this assignment, that he had fled from the police, which is why he was not arrested until eight days after the arrest warrant was issued. During cross-examination, defense counsel attempted to question Investigator Webb about additional statements made by Defendant to the investigator:

DEFENSE COUNSEL
Q: Okay, Officer Webb, page two of the statement, you asked the question, “The first thing I’d like to know, Troy, where have you been staying at the last few days? Where have you been?”

The district attorney objected, arguing that defense counsel’s question to Investigator Webb was hearsay, and, therefore, inadmissible, because he was asking about a statement that Defendant made personally to the investigator. Defense counsel countered that he could ask the investigator about Defendant’s statements to the investigator because the State had Lpopened the door to the issue during direct examination by asking the investigator similar questions.

The trial court agreed with the State, reasoning:

STATE
Your honor, I believe [the defendant] can — any words that have already come out of Investigator Webb’s mouth, he certainly could be questioned about but he cannot elicit any further elaboration or any further statement that would be hearsay [sic ].
COURT
And that’s exactly what the law says. There’s a — I’m looking under Code of Evidence, Article 801, admission by a party opponent, 801.D 2 and 3: “Admissions typically are not considered hearsay [sic ], but when a statement is offered — sought to be introduced by the party making the statement, they don’t consider that admission and it’s not admissible under those exceptions. The theory is not the trustworthiness or necessity underlying the hearsay [sic ] exception, but that the party who made the statement should not be able to object that he could not cross-examine himself and should be re-quirecl to explain the statement.” And then the cases cited, State v. Ccddwell, .“The defendant attempted to introduce his self-serving statement made to officer in lieu of testifying, thus [sic ] avoid being subject to cross-examination”; Johnson [sic] v. Bosworth (phonetic), ..., same information — same type holding. Also, “A defendant may not introduce his or her recorded statement given at a police station since it’s hearsay [<sic ],” State v. Langly [sic ],.... So, I’m sustaining the objection.

The court further explained to defense counsel:

What my ruling is, is you can cross-examine [Investigator Webb] as to anything he just said here today, but, for example, you cannot say, “Didn’t he tell you this,” “Didn’t he tell you that,” or things that — whatever he testified today, you can cross him on those, but there might be other stuff in the report. To me that violates that article.

|2iWe disagree with the ruling of the trial court. La. R.S. 15:450 provides that every confession, admission or declaration sought to be used against anyone must be used in its entirety so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford. The purpose of the statute is to ensure completeness. State v. Caldwell, 28,514 (La.App. 2d Cir.8/21/96), 679 So.2d 973, writ denied, 96-2314 (La.2/21/97), 688 So.2d 521. Where the state introduces portions of a defendant’s pretrial statement against him, the defendant is entitled to have the remaining portions admitted so that the jury is not misled as to the statement’s true meaning. Id. Where, on the other hand, the state has not introduced any statement of the defendant, i.e., the state has not sought to use a statement of the defendant against him or her, the defendant may not introduce his or her own self-serving statement in lieu of testifying. Id. In such cases, the statements of a defendant are hearsay and are inadmissible. Id.

The trial court in the present case cited Caldwell, supra, in support of its ruling refusing to allow defense counsel to further question the investigator regarding other portions of the statement made by Defendant. We find Caldwell to be factually distinguishable from this case. In Caldwell, a critical fact relied upon by this court in upholding the trial court’s refusal to admit the defendant’s pretrial statement was that “the state did not use any part of defendant’s statement.” The defendant in Caldwell “wanted to use his self-serving statement in lieu of testifying and thus avoid being subject to cross-examination.” Caldwell, supra. In the case sub \22iudice, unlike Caldwell, the State elicited testimony of the substance of Defendant’s pretrial statements to Investigator Webb during direct examination of the investigator, seeking to use portions of the statement against Defendant. We conclude, therefore, that La. R.S. 15:450 would permit Defendant’s further questioning of the investigator on additional portions of the statement.

We further find, however, that this error does not warrant reversal of Defendant’s conviction and sentence as it did not result in a fundamentally unfair trial. The excluded portions of Defendant’s statement would have little to no bearing on the outcome of the trial in light of the other evidence of guilt. Thus, this error was harmless beyond a reasonable doubt. See Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

We find, therefore, that this assignment is also without merit.

Error Patent:

A review of the record reveals that the trial court did not properly inform Defendant of the sex offender notification requirements outlined in La. R.S. 15:543. Attempted aggravated rape is a sex offense under La. R.S. 15:541(14.1). La. R.S. 15:542 provides registration requirements for sex offenders. In addition, La. R.S. 15:543 requires that the trial court notify a defendant charged with a sex offense in writing of the registration requirements. Although the trial court advised Defendant at sentencing that he would have to “comply with all of the requirements of the sex offender registration and notification law, including registration, notification, and counseling,” the record does not indicate that the court complied with the | ^written notification procedure outlined in La. R.S. 15:543. Since the court did not comply with the notification procedures, a remand would typically be required. See State v. Scott, 42,997 (La.App. 2d Cir.2/13/08), 975 So.2d 782. Since, however, the record indicates that the trial court verbally notified Defendant of the requirements, we direct the trial court to provide the appropriate written notice of the sex offender registration requirements to Defendant within ten days of the rendition of this opinion and to file written proof of Defendant’s receipt of such notice in the record of the proceedings.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, William Troy Manning, are affirmed. The trial court is ordered to provide Defendant with written notification of the sex offender registration requirements within ten (10) days of the rendition of this opinion and to file in the record proof of receipt by Defendant of such notice.

AFFIRMED.

      . State v. Caldwell, 28,514 (La.App. 2d Cir.8/21/96), 679 So.2d 973, writ denied, 96-2314 (La.2/21/97), 688 So.2d 521; Jeansonne v. Bosworth, 601 So.2d 739 (La.App. 1st Cir.1992), writ not considered, 614 So.2d 75 (La.1993); State v. Langley, 95-1489 (La.4/14/98), 711 So.2d 651.


text:
    STATE of Louisiana, Plaintiff-Appellee In the Interest of J.W.M. and L.J.M.
    No. 44,513-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.
    Rehearing Not Considered Aug. 20, 2009.

      Steven R. Thomas, Mansfield, for J.W.M. and L.J.M.
    Brian C. McRae, for S.M.
    Audie L. Jones, Shreveport, for Dept, of Social Services, Appellee.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

_JjThe defendant, Stanley McDonald, appeals from a trial court judgment terminating his parental rights to his two children, J.W.M. and L.J.M. For the reasons stated herein, we affirm.

FACTS

Mr. McDonald is the father of J.W.M. (age 8) and L.J.M. (age 4). The mother of the children, Lisa Marie Wyatt, died of cancer on November 25, 2006. After Ms. Wyatt’s death, Mr. McDonald maintained custody of the two children. Mr. McDonald is also the father of S.M., a child born of Mr. McDonald and Briana Endi-cott in November 2003. Due to valid allegations of abuse that Mr. McDonald abused another child of Ms. Endicott’s (not S.M.), S.M. was removed from the home several times. The Department of Social Services (“the Department”) assigned Mr. McDonald a case plan for reunification with S.M.; but, because he did not complete the case plan or visit the child and was subsequently arrested in July 2007, his parental rights to S.M. were terminated in January 2008 (Docket No. 3,476, 42nd J.D.C.).

Mr. McDonald also has a lengthy criminal history beginning in 1988 and lasting through the date of his most recent arrest and incarceration in mid-2007. The Department became involved in this case with respect to J.W.M. and L.J.M. in July 2007 when it learned from the DeSoto Parish Sheriffs Department that Mr. McDonald and his girlfriend, Jennifer Gin-gles, were arrested in Caddo Parish for Possession with Intent to Distribute Methamphetamine and Distribution of Methamphetamine (“Meth”). Once he was arrested, Mr. McDonald told police officers that his |2children were with Ms. Gingles’ daughter, L.H. (age 17), at a residence in Gloster, Louisiana. Police obtained permission from Mr. McDonald to search the residence and did so, accompanied by the Department. Upon searching Mr. McDonald’s Gloster residence, police discovered scales used for weighing Meth, a ledger indicating the sale of Meth and several “baggies” containing Meth residue.

When Ms. Gingles’ 17-year-old daughter, L.M., was questioned by officials, she indicated that she had witnessed her mother undergoing extreme and rapid weight loss, staying awake for several days in a row and then “crashing.” L.M. further indicated that she had seen several unknown people come to the house, go into the back room with Mr. McDonald for a short period of time and then leave quickly. Eight-year-old J.W.M. was also questioned and indicated that he had seen Mr. McDonald’s girlfriend, Ms. Gingles, “smoke ice.”

After Mr. McDonald’s arrest in July 2007, the Department obtained a valid court order to have J.W.M. and L.J.M. removed from Mr. McDonald’s residence. The children were adjudicated children in need of care in October 2007. Then in August 2008, the Department filed a Petition for Termination of Parental Rights. The trial court terminated Mr. McDonald’s parental rights to J.W.M. and L.J.M. in October 2008. Mr. McDonald’s rights were terminated pursuant to the following three sections of the Louisiana Children’s Code: (1) 1015(3)(k) rights to other children previously terminated; (2) 1015(4)(b) abandonment; and (3) 1015(5) failure to complete a case plan or show significant improvement.

IsMr. McDonald now appeals.

DISCUSSION

Children whose parents are unwilling or unable to provide adequate safety and care to meet them needs are protected by Title X of the Louisiana Children’s Code which provides a judicial process for the termination of parental rights and for certifying the child for adoption. La. Ch. C. art. 1001; State ex rel. A.R.H. v. Hines, 35,800 (La.App. 2d Cir.2/27/02), 810 So.2d 1166.

In termination proceedings, courts must balance the two private interests of the child and the parents. State ex rel. A.R.H. v. Hines, supra. It is well established that a parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C., 93-1125 (La.1/27/94); 643 So.2d 719; State ex rel. B.H. v. A.H., 42,864 (La.App. 2d Cir.10/24/07), 968 So.2d 881. The child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing stable, long-term relationships found in a home with proper parental care. State ex rel. G.J.L., 00-3278 (La.6/29/01), 791 So.2d 80; State ex rel. A.R.H. v. Hines, supra.

In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel. G.J.L., supra; State ex rel. C.M.M. v. T.P.M., 42,238 (La.App. 2d Cir.5/9/07), 957 So.2d 330; State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2d Cir.9/23/05), 912 So.2d 88; State ex rel. A.R.H. v. Hines, supra. In all ^proceedings, when a ground justifying termination of parental rights is proven, the primary concern is to secure the best interest of the child. State ex rel. G.J.L., supra; State ex rel. A.R.H. v. Hines, supra. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. State ex rel. A.R.H. v. Hines, supra; State ex rel. R.C. v. Everett, 35,749 (La.App. 2d Cir.1/23/02), 805 So.2d 1205.

Termination of parental rights is a severe and final action, so the state must satisfy an onerous burden of proof in order to terminate these rights. State ex rel. B.H. v. AH., supra. The state bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. C.M.M. v. T.P.M., supra. Although there are several statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, only one ground need be established. State ex rel. S.N.W v. Mitchell, 01-2128 (La.11/28/01), 800 So.2d 809; State ex rel. B.H. v. AH., supra.

Pursuant to the clear and convincing proof standard, the state must show that the parents’ failure to comply with the enumerated condition is highly probable. State ex rel. B.H. v. A.H., supra. Even upon finding that the state has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interests. La. Ch. C. art. 1039; State ex rel. C.M.M. v. T.P.M., supra; State 5ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App. 2d Cir.9/28/05), 912 So.2d 418.

In termination of parental rights cases, the trial court’s factual findings will not be set aside in the absence of manifest error. State ex rel. B.H. v. A.H., supra; State, Dept. of Social Services ex rel. D.L.F. v. Phillips, 34,645 (La.App. 2d Cir.4/4/01), 785 So.2d 155; State in Interest of S.D. v. Moore, 31,192 (La.App. 2d Cir.8/19/98), 717 So.2d 265; State in Interest of K.L.B. v. Biggs, 29,512 (La.App. 2d Cir.2/28/97), 690 So.2d 965.

In order to terminate parental rights, the court must find that the state has established at least one of the statutory grounds contained in La. Ch. C. art. 1015. The statute provides in pertinent part:

The grounds for termination of parental rights are:

(3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(k) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful.
(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
1 B(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In Mr. McDonald’s sole assignment of error, he argues that the State failed to prove by clear and convincing evidence that he did not substantially comply with his case plan. Mr. McDonald further argues in this assignment that the State failed to prove that there is no reasonable expectation of reformation on his part in the foreseeable future. Mr. McDonald does not set forth an argument with regard to either of the two other grounds in the Children’s Code upon which the trial judge relied in terminating Mr. McDonald’s parental rights, ie., La. Ch. C. art. 1015(3)(k) rights to other children previously terminated and La. Ch. C. art. 1015(4)(b) abandonment. Accordingly, we will limit our discussion to Mr. McDonald’s argument that the trial judge erred with respect to his ruling on the grounds of La. Ch. C. art. 1015(5): failure to complete a case plan or show significant improvement.

Mr. McDonald claims that, once incarcerated, he immediately enrolled in the programs department in order to complete his classes in substance abuse and anger management, but that he was placed on a waiting |7list for the classes that would fulfill his case plan requirements. According to Mr. McDonald, his outlook has changed and he has “strive[n] to correct the problems that necessitated the children’s removal.” Additionally, Mr. McDonald asserts that he has shown improvement that is significant enough to prevent the termination of his parental rights; specifically, he has become more responsible, stable and self-reliant.

The Department counters that the judgment of the trial court terminating Mr. McDonald’s parental rights should be upheld because clear and convincing evidence was presented at trial that Mr. McDonald failed to follow his case plan for reunification and that he showed no reasonable expectation of significant improvement in his condition or conduct in the near future. We agree.

The record reflects that the Department filed and the trial court approved case plans for reunification for Mr. McDonald which included parenting classes, anger management, domestic violence counseling and substance abuse counseling. Mr. McDonald, however, did not participate in any of these programs for the first 15 months he was incarcerated. Ms. Rebecca Burch, the Foster Care Case Manager assigned to Mr. McDonald’s case, testified at trial that Mr. McDonald did not sign up for any services listed in his case plan until after he had been incarcerated for nearly a year. Ms. Burch testified that, even though Mr. McDonald had been on the waiting list to attend the classes enumerated in his case plan since June 10, 2008, his children had been in state custody since July 26, 2007. Thus, Mr. McDonald waited almost an entire year after his initial | ^incarceration to sign up for the classes which would enable him to comply with his case plan. We find, therefore, that Mr. McDonald’s argument that the State failed to prove that he did not substantially comply with his case plan lacks merit.

Additionally, we agree with the Department that Mr. McDonald has shown no reasonable expectation of significant improvement in his condition or conduct in the near future. Given his lengthy criminal history, including his repeated arrests and incarcerations in Texas and Louisiana, his current delays and unwillingness to follow his case plan for reunification with his children and his previous failure to follow the case plan for reunification with S.M. resulting in the termination of his parental rights, Mr. McDonald has shown an established pattern of behavior which indicates that he is unwilling to provide an adequate permanent home for J.W.M. and L.J.M. Accordingly, we find that Mr. McDonald’s argument that the State failed to prove that there is no reasonable expectation of reformation on his part in the foreseeable future also lacks merit.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court terminating the parental rights of Defendant, Stanley McDonald, to his two children, J.W.M. and L.J.M. Costs of this appeal are assessed to Mr. McDonald.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW & MOORE, JJ.

[ t Rehearing not considered, not timely.


author: CARAWAY, J.

text:
    Dezeray FREDERICK, Plaintiff-Appellee v. Dennis R. BUCKINGHAM, Defendant-Appellant.
    No. 44,458-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Washington & Wells, by Alex J. Washington, Shreveport, for Appellant.
    Samuel P. Love, Jr., Shreveport, for Ap-pellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

' Lin this case, the father of the infant child appeals the trial court’s determination of the basic child support obligation and its assessment to him of a medical expense for the child. All of the issues raised by appellant concern the discretion of the trial court in insuring the proper support for the child. Finding no abuse of the trial court’s judgment, we affirm.

Facts and Procedural History

Dezeray Frederick (“Frederick”) and Dennis R. Buckingham (“Buckingham”) are the parents of an infant child, C.D.F., who was born on December 25, 2007. In January 2008, Frederick sought an order designating her as the domiciliary parent and fixing child support. She also requested that Buckingham be ordered to submit to paternity testing as the parties were not married. Frederick also requested that C.D.F. be included on Buckingham’s employer-provided health insurance benefits.

An initial hearing occurred on February 19, 2008. The minute entry stated the following:

Regularly taken up on rule. Plaintiff present with counsel, .... defendant present in proper person. Both parties acknowledged that [Buckingham] is the biological father of the child. DNA testing results filed. By agreement an interim order was issued for [Buckingham] to carry the child on his insurance and pay plaintiff child support in the amount of $400.00 per month. Case continued ... for further proceedings.

The matter was taken up again the following week, on February 26, 2008. Frederick was present with her same counsel. Buckingham was present in proper person. The minute entry stated, “[b]y agreement judgment rendered awarding plaintiff sole custody of the minor child with visitation to the defendant to be decided between the parties. Plaintiff is 12awardecl $300.00 per month child support and he is to maintain medical insurance on the child.”

Almost immediately after the February 26 hearing, Frederick hired different counsel. On March 5, 2008, new counsel enrolled and filed a motion for new trial alleging:

Mover shows that her attorney, in Open Court, reached an agreement with the defendant for him to pay $300.00 per month child support and that Mover did not acquiesce and agree to this amount of child support to be paid by the defendant.

On March 7, the trial court signed an order granting Frederick’s motion for a new trial which set aside the February 26, 2008 consent decree. The present dispute concerns the new trial on the issue of child support.

In presenting her new claim for child support, Frederick described monthly daycare expenses in the amount of $541.00/ month. Interrogatories were propounded to Buckingham concerning his sources of employment and income. Buckingham’s answers to interrogatories indicated that his total monthly income was approximately $3,900.00 per month, and that he had received a “one time $20,000.00 sign on bonus” from the United States Navy. Buckingham was employed by the City of Shreveport as a City Marshal and drove an employer-provided “take-home vehicle.”

Before the trial, Frederick filed a supplemental rule to recover certain sums paid for C.D.F.’s expenses:

First enrollment fee - daycare •$ 25.00
One-half second enrollment fee - daycare 50.00
Paternity test 100.00
One-half cost of circumcision 202.50
One-half co-pay - medical 37.50
TOTAL $415.00

| sThe matter was retried on July 31, 2008. After hearing testimony and receiving the child support obligation worksheet into evidence, the trial court took the matter under advisement. On September 16, 2008, the trial court issued its ruling and written reasons therefor. It found that Buckingham’s monthly income was stipulated to be $3,900.00 per month at trial. Frederick’s monthly income was determined to be $327.00 per month, based on her part-time employment and status as a college student. Therefore, the combined monthly income of the parties was $4,227.00 per month, resulting in a basic child support obligation of $609.70. The trial court also found that Frederick’s child care costs were $333.67. This amount was added to the basic child support obligation, for a total sum of $943.37. The trial court multiplied this sum by 92.25% (Buckingham’s share of the income) to arrive at Buckingham’s monthly child support obligation of $870.39. Finally, Buckingham was ordered to reimburse Frederick $202.50 for the circumcision of the child and $37.50 for the medical co-payment, representing one-half of the total charges for those medical expenses.

Buckingham appeals the judgment, first urging that the trial court erred in determining Frederick’s income for the purpose of computing the basic child support obligation. In particular, Buckingham argues that the trial court should have valued in the computation of income the “recurring financial gifts” Frederick received from her aunt. In his next assignment, ^Buckingham asserts as error the trial court’s failure to consider his financial support of two other children. Finally, appellant argues that the portion of the judgment ordering him to pay one-half of C.D.F.’s circumcision should be set aside.

Discussion

The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. State, Dep’t of Social Services v. Neathery, 39,796 (La.App. 2d Cir.7/29/05), 909 So.2d 40; State, ex rel. Wilson v. Wilson, 37,674 (La.App. 2d Cir.9/24/03), 855 So.2d 913, writ denied, 03-2970 (La.1/16/04), 864 So.2d 633. The child support guidelines (the “Guidelines”) set forth in La. R.S. 9:315, et seq., are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A); Harper v. Harper, 33,452 (La.App. 2d Cir.6/21/00), 764 So.2d 1186.

In contesting the trial court’s determination of Frederick’s income, Buckingham cites two definitions set forth under the Guidelines in La. R.S. 9:315(C). In the definition for “gross income” is included the party’s receipt of “recurring monetary gifts.” La. R.S. 9:315(C)(3)(a). Also, regarding income, “[t]he court may also consider as income the benefits a party derives from expense-sharing.” La. R.S. 9:315(C)(5)(c).

Frederick testified that she had always lived with her aunt and that her aunt and mother had aided her with college expenses. She had over 30 hours of college credit and was enrolled in Bossier Parish Community 1¿College. She stated that her automobile was a gift from her aunt, who had been paying the loan on the vehicle since Frederick was in high school. The other expenses and housing provided by Frederick’s aunt were obviously in aid of Frederick’s needs immediately after the birth of the child and while Frederick was seeking higher education. Under these circumstances, the trial court did not abuse its discretion in considering that this family aid would not be considered as recurring monetary gifts so as to amount to Frederick’s income under the Guidelines.

Likewise, we find no merit in Buckingham’s contention that his $300 support payments for his fifteen-year-old daughter in South Carolina and his sole custody of his three-year-old son require a reduction in his basic child support obligation for C.D.F. as determined under the Guidelines. The application of the Guideline provision allowing for deviation for such children states:

C. In determining whether to deviate from the guidelines, the court’s considerations may include:
* ‡ if
(2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.

La. R.S. 9:315.1(C)(2). In this case, Buckingham provided inadequate proof for an obligation of support for the South Carolina child and that child was not in his “household” as stated in the Guidelines. Even regarding the three-year-old child in his household, any downward deviation from the basic support obligation is expressly discretionary under La. R.S. 9:315.1(0, and we find no abuse of discretion in the trial court’s ruling.

Finally, under the circumstances of C.D.F.’s birth when the child was not covered by Buckingham’s health insurance, the medical expense for the ^child’s circumcision which Frederick incurred was appropriately apportioned to the child’s father by the trial court. See Laprarie v. King, 575 So.2d 921 (La.App. 2 Cir.), writ denied, 578 So.2d 140 (La.1991), which sanctioned child support award including reimbursement by father of premature birth expenses and Debetaz v. Debetaz, 421 So.2d 379 (La.App. 1st Cir.1982), which allowed award of one-half of birth expenses against father. Buckingham’s last assignment of error is without merit.

Conclusion

For the above reasons, the decision of the trial court is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . Counsel for appellant conceded at oral argument that an additional assignment of error concerning Frederick’s employment status and earning capacity fell within the provisions of La. R.S. 9:315.11(A). Also, during oral argument, Buckingham disputed the trial court's finding which added $333.67 for child care costs to the basic child support obligation in accordance with La. R.S. 9:315.3. See Campbell v. Campbell, 682 So.2d 312 (La.App. 1st Cir. 10/10/96), 682 So.2d 312. This matter was neither assigned as error nor argued in brief, and therefore we consider that it is not before us on appeal. U.R.C.A. Rule 2-12.4; Goodliffe v. State, through Dep’t of Transp. & Dev., 29,948 (La.App. 2d Cir.10/29/97), 702 So.2d 36.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Joseph Walter MONTELBANO, Appellant.
    No. 44,405-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Schuyler Marvin, District Attorney, John M. Lawrence, R. Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, Chief Judge.

11A bill of information charged that on December 16, 2007, defendant, Joseph Montelbano, possessed a Schedule II controlled dangerous substance, namely methadone, a violation of La. R.S. 40:967(C). On June 24, 2008, defendant pled guilty as charged, and on September 30, 2008, the court sentenced defendant to four years imprisonment at hard labor. The maximum sentence for this offense was five years with or without hard labor. Defendant now appeals, urging that his sentence is excessive. For the reasons set forth below, defendant’s conviction and sentence are affirmed.

Discussion

According to defendant, his history of substance abuse and relatively young age (23 years) weigh in favor of a sentence aimed at rehabilitation.

The facts of this case show that defendant is a relatively youthful offender who was charged by bill of information and pled guilty to possession of one methadone pill. On December 16, 2007, an ambulance was called to defendant’s residence in Bossier Parish. When medics arrived, they found that a four-month-old infant at the home had died. Sheriffs deputies were dispatched to the scene and discovered marijuana and associated paraphernalia; others at the scene said that defendant had supplied them with marijuana. When asked by a deputy if he had any other substances in the house, defendant produced a metal box containing a Lortab pill and a Methadone pill. Deputies arrested defendant and charged him with two counts of possession of drugs in the presence of a juvenile, possession of Schedule I, II, and III drugs, three counts of distribution of Schedule I drugs, six counts of possession of drug paraphernalia and, finally, with keeping a [ gdisorderly place. In return for his guilty plea, these other charges were dropped.

Defendant is a second felony offender. His prior felony conviction was for cruelty to a juvenile. Defendant also has a history of violent behavior or threats of violence toward those around him, including violence against women (both his mother and his girlfriend). Thus, defendant’s record does not reveal simply a history of substance abuse; rather it shows a pattern of involvement in crimes against persons and threats of crimes against persons.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.04/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430.

Given defendant’s prior criminal record and the benefit he received in the plea agreement, the four-year sentence is not excessive by constitutional standards. See State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Dorthey, 623 So.2d 1276 (La.1993).

Conclusion

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


author: LOLLEY, J.

text:
    Annette R. NESBITT, Plaintiff-Appellant v. B. Woodrow NESBITT, Jr., Defendant-Appellee.
    No. 44,413-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Donald L. Kneipp, Monroe, for Appellant.
    Francis M. Gowen, Jr., Shreveport, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| -, Both former spouses appeal a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana. For the following reasons we amend the judgment, and affirm as amended.

FACTS

Defendant, Woodrow Nesbitt, Jr. (“the husband”) and plaintiff, Annette R. Nesbitt (“the wife”), were married in 1968. They were divorced June 14, 2002. The parties entered into a voluntary partial partition of the community property. Several partition issues were previously decided by this court and the remaining unresolved issues were remanded to the trial court for its determination. See Nesbitt v. Nesbitt, 40,442 (La.App. 2d Cir.01/13/06), 920 So.2d 326 (“Nesbitt /”). Both parties appeal from a judgment rendered May 28, 2008, involving the remaining partition of the community property.

LAW AND DISCUSSION

A trial court’s factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. McDaniel v. McDaniel, 35,833 (La.App. 2d Cir.04/03/02), 813 So.2d 1232. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations |2and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Issues raised by the husband

Wine Collection

The husband argues that the trial court erred in the valuation of the wine collection and further erred in awarding the entire collection to him, as opposed to a distribution in kind. We disagree. The trial court accepted a value established by an expert, and the record supports its finding. The trial court’s choice of one expert’s method of valuation over that of another will not be overturned unless it is manifestly erroneous. Ellington v. Ellington, 36,943 (La.App. 2d Cir.03/18/03), 842 So.2d 1160. The record is clear that collecting wine is the husband’s hobby. While the wife may have enjoyed a glass of wine or two, the record is clear that the husband was a wine enthusiast, and, therefore, the trial court did not err in awarding the husband the entire collection. The wife is entitled to a reimbursement for half the value.

Interest on a past judgment

The husband argues that the interest from the reimbursement amount that resulted from the husband’s personal injury case, determined in Nesbitt I, should have accrued from the date of judgment and not the date of opinion. We disagree. An equalizing payment is not due until after the trial court has determined the assets and liabilities of the community therefore judicial interest has not accrued. Reinhardt v. Reinhardt, 1999-0723 (La.10/19/99), 749 So.2d 423.

13Community funds given to tire campaign

In Nesbitt I, this court ruled that any debt incurred by the campaign committee for the husband’s judicial campaign was not a community debt. The campaign committee is a separate entity. As such, the $266,300.00 loaned from BancorpSouth to the campaign committee is not a community obligation, and, therefore, the wife is entitled to a reimbursement.

Value of campaign debt oiued to the community

The husband and wife gave the husband’s campaign $92,210.57 during the community, and this court in Nesbitt I explained that this was the husband’s asset given his unique position to control its collection. However, the husband now argues that the debt owed to the community is worth zero dollars in light of his current situation, namely that he is no longer a trial judge and will not seek re-election. We disagree. We cannot find error in the trial court’s finding that the value of the loan is equal to the actual amount lent to the campaign, and the wife is entitled to a reimbursement. Further, the trial court accurately found that the husband’s lack of fundraising abilities was solely his fault and the wife played no role in the matter.

Value of Professional Law Corporation

The husband argues that the trial court erred in its valuation of his professional law corporation (PLC) which included several annuities. Here, the trial court used the actual value of the PLC without discount. The husband urges this court that the correct value is what a third party would pay — the “marketability” approach. Since there is no evidence that a third hiparty was interested in purchasing the PLC, and it is unlikely that this will occur, we cannot find that the trial court erred in its dismissal of the “marketability” ■ approach. Head v. Head, 30,585 (La.App. 2d Cir.05/22/98), 714 So.2d 231; Ellington, supra.

Matrimonial Domicile

The trial court held that the husband was responsible for the neglect and deterioration of the matrimonial domicile and the resulting decreased value of the property. The trial court found the damage totaled $40,000.00, and the wife was entitled to a reimbursement. The husband argues that he did not live there and so he is not at fault, while the wife, on the other hand, argues that the amount is greater and the reimbursement should be increased to reflect the actual damage.

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect. La. C.C. art. 2369.3. We cannot find that the trial court erred in finding that the damage to the domicile was caused solely by the husband. Whether he chose to live there is irrelevant as he had complete control of the matrimonial domicile and insisted that the wife could not live there despite his choice to abandon the house.

While there was testimony as to the expense involved in repairing the various issues with the house—e.g., mold and moisture damage—actual | ¿remediation did not occur. Eventually, the house, in its condition, was sold in foreclosure. Because the record does not set forth a concrete devaluation amount, and we find the cost to fix the problems are not necessarily equivalent to devaluation, we must affirm the trial court’s finding of $40,000.00.

However, we disagree with reimbursing the wife only half the amount, $20,000.00. This in effect gives the husband a windfall in only having to pay for half the damage he caused, and penalizes the wife through no fault of her own. As such, the wife is entitled to the entire $40,000.00 as supported by La. C.C. art. 2369.3 which states, “He is answerable for any damage caused by his fault, default, or neglect.” As such, we amend the judgment to reflect this finding.

Appraiser Expense

The husband makes much of the trial court’s allowance of community funds to pay Bruce Mercer, an appraiser that the wife used in response to the husband’s desire to refinance the former matrimonial domicile. The record is clear that there were several requests from both sides to use community funds with respect to the instant partition. The trial court has wide discretion in allowing experts to be paid from the community funds, and it attempted to maintain fairness among the parties during the partition process. We do not find that the trial court erred in granting community funds to pay Bruce Mercer. The wife is entitled to a reimbursement for half the amount.

| issues raised by the wife

Mismanagement claims

The wife argues that the husband mismanaged the community assets, specifically the wine collection, and is entitled to a reimbursement for such. The trial court denied the claim. The wife argues that the husband drank several bottles of wine despite the stay on all community property. An expert, Joseph Fertitta, accounted for the individual wine bottles and ascertained a range for what the collection was worth. The trial court used the higher value for the collection which we agree remedied the potential monetary discrepancy if there were any bottles of wine unaccounted for. Furthermore, since the husband was awarded the wine collection in its entirety we see no need in speculating over the husband’s actions as he would have done himself a disservice. As such, we cannot find that the trial court erred in its decision.

Rental Reimbursement

The wife asserts that she is entitled to rent from the husband for his use of the matrimonial domicile. Only if a rental reimbursement claim is made against the husband at the time occupancy is determined, or if the parties agreed, can rent be collected. See McCarroll v. McCarroll, 1996-2700 (La.10/21/97), 701 So.2d 1280. While the amount of rent is stipulated to in the record, it is strictly for the period of time the wife occupied the house prior to her eviction, which was determined to be two months’ rent. The colloquy does not suggest that rent from the husband was contemplated and we cannot find that both parties agreed, as required, to |7pay rent for the duration that either party was living at the matrimonial domicile. Since the record does not suppoi't the wife’s claim for rental reimbursement, we find this argument to be without merit.

Contempt

The wife argues that the trial court erred in not finding the husband in contempt for causing a crack in the marble coffee table during its move from the husband’s residence back to the matrimonial domicile. As we stated in Nesbitt I, the trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court’s orders and its decision will only be reversed when the appellate court discerns an abuse of that discretion. After a review of the record, we find that the trial court did not abuse its discretion.

Other Matters

The wife argues that the trial court erred in the failure to award her $24,000.00 that was used for the purpose of servicing a campaign finance committee debt. In the November 30, 2004, judgment the wife reserved all rights to seek reimbursement following the determination of the type of debt involved. Since we have concluded that the funds from Ban-corpSouth were associated with the campaign committee, and that it was not a community debt, the wife is entitled to a reimbursement of half. We amend the judgment to include this amount.

CONCLUSION

For the foregoing reasons we bring the judgment into conformity with the trial court’s well-reasoned opinion, in addition to the amendments | ¡¡mentioned above. In all other respects the judgment is affirmed. Costs for this appeal are assessed to the parties equally.

The judgment of the trial court is amended and recast, in part, as follows:

JUDGMENT OF PARTITION

IT IS ORDERED, ADJUDGED AND DECREED THAT DEFENDANT, B. WOODROW NESBITT, JR., is hereby granted the following reimbursement claims:

1. $127,146.27 — Judgment rendered on December 2, 2002, and signed January 13, 2005.
2. $4,600.00 — Rent due from the wife for two months’ occupancy in the former matrimonial domicile.
3. $3,839.00 — One-half the payments made on former matrimonial domicile.
4. $23,700.00 — One-half of the funds from utilization by the community of the proceeds from sale of separate immovable assets.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that DE-

FENDANT, B. Woodrow Nesbitt, Jr., is hereby allocated the following community assets at the value listed beside each asset:

1. Wine Collection $309,085.00
2. Funds paid by the community to the Campaign $ 92,210.57
| a3. B. Woodrow Nesbitt, Jr. Ltd, PLC $173,765.84
4. Retirement Plan (Judicial Deferred Compensation Plan) $ 11,400.00

IT IS FURTHER ORDERED PLAINTIFF, ANNETTE R. NESBITT, is hereby granted the following reimbursements:

1. $133,150.00 + $12,000.00 — One-half the campaign debt owed to Bancorp-South by the campaign committee and secured by the community.
2. $743.16 — One-half of the electric bills and Bruce Mercer bill
3. $5,443.26 — Additional amount owed to Annette R. Nesbitt for community fund advances to the PLC.
4. $154,542.50 — One-half value of wine collection.
5. $46,105.29 — One-half funds paid by the community to the campaign.
6. $86,883.97 — One-half value of the PLC.
7. $5,700 — One-half value of the husband’s retirement plan.

IT IS FURTHER ORDERED, ADJUDGED AND DEGREED that the claim for devaluation of the former matrimonial domicile is recognized to be $40,000.00 and accordingly there be judgment in favor of the plaintiff, Annette R. Nesbitt, and against B. Woodrow Nesbitt, Jr., for the entire sum to reflect the devaluation of matrimonial domicile caused by the husband’s fault, default, or neglect, in accordance with La. C.C. art. 2369.3.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that alJien is hereby issued under La. R.S. 9:2801 against the wine collection and other property belonging to defendant necessary to effectuate said equalizing payment to plaintiff. Should there be a deficiency, the collection of the lien shall first apply to the wine collection, then the defendant’s share of the community and finally to the separate property of B. Woodrow Nesbitt, Jr.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim by defendant, B. Woodrow Nesbitt, Jr., for interest on the judgment rendered December 2, 2005, in the amount of $127,146.27 is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Rule for Contempt filed by plaintiff, Annette R. Nesbitt, regarding defendant’s consumption of some of the community wine is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the reimbursement claim of plaintiff, Annette R. Nesbitt, for devaluation or neglect in care of said wine is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim of plaintiff, Annette R. Nesbitt, for reimbursement for community funds spent by defendant, B. Woodrow Nesbitt, Jr., prior to termination of the community is hereby denied.

. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Rule for Contempt filed by plaintiff, Annette R. Nesbitt, regarding the marble coffee table is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff, Annette R. Nesbitt, and defendant, B. Woodrow Nesbitt, Jr., are |T1each recognized as owing one-half of the community debt of $117,500.00, which debt was paid through foreclosure of the former matrimonial domicile and thus no reimbursement is due.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the bills of the following Special Masters have been submitted to the Court and are recognized to be:

Susan Whitelaw, $15,466.39; defendant, B. Woodrow Nesbitt, Jr., is to be assessed one hundred percent of the bill.

Zoe Meeks, $10,843.75; plaintiff, Annette R. Nesbitt, is to be assessed one hundred percent of the bill.

Gwen Harju, $5,960.15; defendant, B. Woodrow Nesbitt, Jr., is to be assessed one hundred percent of the bill.

Joseph Fertitta, $4,059.00; one-half of the bill is to be assessed to Annette R. Nesbitt, and one-half is to be assessed to B. Woodrow Nesbitt, Jr.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the furs and jewelry are hereby allocated to plaintiff, Annette R. Nesbitt, as her separate property and the claim of defendant, B. Woodrow Nesbitt, Jr., for reimbursement is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Smith and Wesson .38 revolver is hereby allocated to defendant, B. Woodrow Nes-bitt, Jr., as his separate property and the claim by plaintiff, Annette R. Nesbitt, for reimbursement is hereby denied.

| ,,IT IS FURTHER ORDERED, ADJUDGED AND DECREED the Court recognizes each party has in their possession property ordered retained herein and an equal share of their interest in the former community property.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.

      . There were a few discrepancies, only a matter of cents, between the judgment and the opinion with respect to the figures used. Accordingly, we have corrected the calculation.