text:
    STATE of Louisiana v. Darwin FERRERA
    NO. 16-KA-243
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Thomas Sanderson
    COUNSEL FOR DEFENDANT/APPELLANT, DARWIN FERRERA, Mary E. Roper
    DEFENDANT/APPELLANT, Darwin Ferrera, DOC # 629562, In Proper Person
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

11 Defendant appeals his conviction and sentence for vehicular homicide, arguing that his guilty plea was not knowingly and voluntarily made. For the following reasons, we affirm defendant’s conviction, but we set aside the fine imposed and remand for resentencing in conformity with the plea agreement.

PROCEDURAL HISTORY

Defendant, Darwin Ferrera, was charged with vehicular homicide, in violation of La. R.S. 14:32.1. He initially pleaded not guilty. However, he subsequently withdrew his not guilty plea, and pleaded guilty as charged. At a hearing four days after his guilty plea, the trial court sentenced defendant to 20 years imprisonment at hard labor with the first three years to be served without the benefit of parole, probation, or suspension of sentence. The court also imposed a $10,000 fine and ordered his sentence to run concurrently with his sentence for the charge of failure to yield in case number 14-4038, which arose from the same incident.

FACTS

Because defendant pleaded guilty, the underlying facts were not fully developed at a trial. In the bill of information, the State alleged that on or about June 12, 2014, defendant committed vehicular homicide, in violation of La. R.S. 14:32.1, in that he caused the death of Ewin Zelaya while operating a motor vehicle under the influence of alcoholic beverages.

LAW AND DISCUSSION

On appeal, defendant has filed a counseled appellate brief and a pro se brief, setting forth one assignment of error in each. In defendant’s counseled brief, he argues that he should be given the opportunity to withdraw his guilty plea, because he did not enter it knowingly and intelligently. He states that he does not speak or | comprehend English, and the waiver of constitutional rights form was written only in English. He asserts that the record supports his claim that he did not understand the terms of the plea agreement, because the terms on the waiver of rights form were inconsistent with an assertion made by his attorney prior to his plea. Particularly, defendant notes that his attorney informed the court that it was his understanding that the State was going to dismiss case number 14^4038 and that defendant would plead guilty to the charge in case number 14-3139, the instant matter. However, the waiver of constitutional rights form did not indicate that the charge in case number 14-4038 was to be dismissed or nolle prossed. He contends that his initials on a form written in English do not show that he understood what he was agreeing to. Accordingly, he claims that he should be allowed to withdraw his plea.

The State responds that defendant, a non-English speaker, entered a knowing and voluntary guilty plea to vehicular homicide with the assistance of a Spanish interpreter while represented by a defense attorney who was fluent in Spanish. The State contends that the terms and conditions of the plea agreement were met and even assuming arguendo that defendant was initially under a mistaken belief that his misdemeanor case would be dismissed, such misunderstanding was not induced by or attributable to representations made by the prosecutor or the trial judge. The State further avers that given the fact that defendant entered into guilty pleas for both the instant matter and the misdemeanor prior to being sentenced in either matter, and that he received concurrent sentences, the record evidences that the dismissal of the misdemeanor charge was not a material condition of the plea agreement in his vehicular homicide case. Therefore, the State concludes that the conviction and sentence resulting from defendant’s guilty plea to vehicular homicide should be upheld.

|sIf a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

In State v. Gonzales, 97-767, p. 5 (La. App. 5 Cir. 1/14/98), 707 So.2d 82, 84, this Court held that the record supported a valid guilty plea, despite the defendant’s contention that he could not understand the proceedings against him. In that case, the defendant spoke Spanish and little or no English. Gonzales, 707 So.2d at 84, n.1. Defendant entered a guilty plea after being advised of his rights, through an interpreter, and the Boykin colloquy was translated by the interpreter. Defendant indicated, through the interpreter, that he understood his rights and was waiving them of his own free will. This Court affirmed the trial court’s denial of the defendant’s motion to withdraw his guilty plea, reasoning that the record did not show that the defendant could not understand the consequences of his guilty plea. Gonzales, 707 So.2d at 84.

In the instant case, a review of the record indicates that defendant’s guilty plea was knowingly and voluntarily made. The record shows that an interpreter was appointed and sworn and was present throughout the proceedings in this matter, including the guilty plea colloquy and sentencing. Through the interpreter, defendant indicated that he was aware he was pleading guilty to vehicular |/homicide, that he understood the legal consequences of pleading guilty, and that he wished to plead guilty. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin, and he indicated that he understood he was waiving these rights. Defendant was also advised of his rights by means of the waiver of rights form, and he acknowledged, through the interpreter, that he signed the waiver of rights form. Defendant acknowledged that his attorney had communicated with him in defendant’s native language and that his attorney read and explained the guilty plea form to him.

The trial court also advised defendant of the possible sentencing range for vehicular homicide and of the actual, sentence that would be imposed. The trial court accepted defendant’s guilty plea as having been knowingly, intelligently, freely, and voluntarily made.

Where a defendant’s alleged misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there are no grounds for withdrawal of the plea. State v. Phillips, 09-455, p. 8 (La.App. 5 Cir. 3/9/10), 39 So.3d 610, 616; State v. Hoover, 34,952, p. 4 (La.App. 2 Cir. 4/5/01), 785 So.2d 184, 188. When the record establishes that an accused was informed of and waived his right to trial by jury, to confront his accusers and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Harrell, 09-364 (La.App. 5 Cir, 5/11/10), 40 So.3d 311, 321, writ denied, 10-1377 (La. 2/10/12), 80 So.3d 473.

The record reflects that before defendant entered his not guilty plea, defense counsel expressed that it was his “understanding that the district attorney’s office [was] going to null pros [sic] case 14-4038.” However, neither the trial court nor the district attorney responded to defense counsel’s assertions. The guilty plea Lform does not refer to the dismissal of case number 14-4038, and the record does not show that the State or trial judge agreed to dismiss case number 14-4038 in exchange for defendant’s guilty plea to the vehicular homicide charge. Four days after defendant pleaded guilty to the instant matter, defendant entered a guilty plea in case number 14-4038 to the misdemeanor charge of failure to yield, in violation of La. R.S. 32:123, and then he was sentenced on both charges. The record reflects that neither defendant nor defense counsel objected before defendant entered a guilty plea in case number 14-4038. Additionally, it appears that the dismissal of the charge in case number 14-4038 was not a material inducement as defendant was sentenced to one year imprisonment in that case, to run concurrently with his 20-year sentence in the instant matter. Based on the foregoing, we find that defendant’s guilty plea was not constitutionally infirm, and therefore, he is not entitled to withdraw it.

In his pro se brief, defendant sets forth the same assignment of error as he raised in his counseled brief. However, he makes several different arguments as to why his guilty plea should be found invalid and why his sentence should be vacated.

Defendant argues that'his sentence was excessive, claiming the trial court erred by imposing a sentence that was greater than the mandatory minimum sentence. La. C.Cr.P. art. 881.2 provides that the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. With regard to defendant’s sentence, the record reflects that the trial court explained the specific sentence it would impose if defendant entered a guilty plea and that defendant knew that his plea of guilty would result in a sentence of 20 years of imprisonment. Because the record reveals that defendant’s sentence of imprisonment was imposed in conformity with a plea ^agreement set forth in the record at the time of the plea, defendant is precluded from raising a claim of excessiveness of sentence on appeal. See State v. Lee, 02-529 (La.App. 5 Cir. 10/29/02), 831 So.2d 395, 397.

Defendant also alleges the trial court violated his constitutional rights because it did not inform him of the nature and cause of the accusation against him. However, in a criminal prosecution instituted by the filing of a bill of information, the bill of information serves to inform the defendant of the nature and cause of the accusation as required by the Louisiana Constitution. State v. Bruce, 11-991, p. 5 (La.App. 5 Cir. 10/30/12), 102 So.3d 1029, 1033, writ denied, 12-2568 (La. 4/26/13), 112 So.3d 839. Here, the bill of information states in pertinent part that defendant committed vehicular homicide, in violation of La. R.S. 14:32.1, “in that he caused the death of Ewin Zelaya while operating a motor vehicle under the influence of alcoholic beverages.” The record reflects that defendant was aware of the nature of the charge to which he was pleading and that he entered his plea knowingly and voluntarily. This argument is without merit.

Defendant also complains that there was no factual basis provided before his guilty plea was accepted. In State v. Smith, 09-769, p. 3 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n.1, writ denied, 10-843 (La. 11/5/10), 50 So.3d 812, this Court noted that ‘ “the due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” ’ Id. This Court in Smith further stated that due process required a factual basis for a defendant’s guilty plea only when a defendant proclaimed his innocence or when the trial court was otherwise put on notice that there was a need for an inquiry into the factual basis. Id. In the instant 17case, defendant has not proclaimed his innocence, and the trial court was not put on notice that there was a need for a factual basis. This argument lacks merit.

Defendant further contends that the trial judge did not comply with La. C.Cr.P. art. 556.1, rendering his guilty plea invalid. La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. However, contrary to defendant’s assertions, the record reflects that defendant was informed that he was pleading guilty to vehicular homicide, as well as the mandatory minimum and maximum possible penalties.

Defendant also contends that the evidence was insufficient to support his conviction. In support of his argument, he extensively cites testimony adduced at his preliminary examination. To the extent that he is complaining that the facts do not support a charge of vehicular homicide, a plea of guilty by its nature admits factual guilt and relieves the State of the necessity to prove it by a contested trial. Therefore, a defendant cannot challenge the sufficiency of the evidence after he pleads guilty. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 824 n. 3, writ denied, 08-927 (La. 11/14/08), 996 So.2d 1088.

Defendant also avers that the trial court made reversible errors with its rulings on “Probable Cause and Discovery.” However, as previously noted, if a defendant pleads guilty he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea proceedings and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 926 So.2d at 664. The record reflects defendant did not preserve these rulings, or any other rulings, for appellate review under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

| ^Finally, defendant makes a claim of ineffective assistance of counsel, alleging that his attorney failed to investigate his case. Defendant alleges that his attorney “failed to properly, aggressively, diligently, and competently litigate the case” because he failed to obtain discovery files and his trial strategy was not reasonably effective as it resulted in defendant’s guilty plea and excessive sentence of 20 years.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor, 04-846 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. |sC.Cr.P. arts. 924-980.8. State v. Happens, 13-948 (La. App. 5 Cir. 4/23/14), 140 So.3d 293, 301, writ denied, 14-1856 (La. 9/11/15), 176 So.3d 414.

In the present case, the record is insufficient to fully explore defendant’s claim that his trial counsel was ineffective for failing to adequately investigate and prepare defendant’s case. Based on the limited record on appeal, defendant’s ineffective assistance of counsel claims would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary, and defendant can present evidence to support his allegations.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). One error requiring corrective action was noted.

The record reflects that during the guilty plea colloquy and on the waiver of rights form, defendant was informed that a $2,000 fine would be imposed as part of his sentence, pursuant to the plea agreement. However, at the sentencing hearing, the trial court imposed a $10,000 fine.

When a plea bargain is breached, albeit inadvertently, by imposition of a sentence greater than that agreed upon, the defendant is entitled to specific performance of the plea bargain by resentenc-ing in accordance with the agreement perfected, or withdrawal of the guilty plea, whichever due process requires under the facts of the case. State v. Louis, 446 So.2d 822, 824 (La. App. 2 Cir. 1984); State v. Ebright, 04-972 (La.App. 5 Cir. 1/11/05), 894 So.2d 359, 361.

In State ex rel. Turner v. State, 04-2842 (La. 6/24/05), 906 So.2d 399, the Louisiana Supreme Court found that part of a plea bargain appeared to have been) in inadvertently breached when the court resen-tenced defendant as a habitual offender but did not order his sentence to run concurrent with defendant’s sentence for a parole violation, as agreed by the parties in the plea agreement. The Court ordered the trial court to promptly resentence defendant in conformity with the plea agreement. Id. See also State v. Keener, 41,246 (La.App. 2 Cir. 8/23/06), 939 So.2d 510.

In the present case, the trial court imposed a $10,000 fine, which was not in accordance with the terms of the plea agreement, as set forth during the guilty plea colloquy and on the waiver of rights form. Under the circumstances of this case, we find that defendant is entitled to specific performance of the plea agreement. Accordingly, we set aside the fine imposed, remand, and order the trial court to promptly resentence relator in conformity with the plea agreement.

DECREE

For the foregoing reasons, we affirm defendant’s conviction, set aside the $10,000 fíne, and remand for resentencing in conformity with the plea agreement.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Garard K. ACHELLES
    NO. 16-KA-170
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Lindsay Truhe, Douglas W. Freese
    COUNSEL FOR DEFENDANT/APPELLANT, GARARD K. ACHELLES, Bruce G. Whittaker
    DEFENDANT/APPELLANT, GAR-ARD K. ACHELLES, In Proper Person
    Panel composed of Marc E. Johnson, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

|tOn appeal, defendant, Garard K. Ac-helles, challenges his convictions and sentences for second degree murder, possession of a firearm by a convicted felon, and pandering. For the reasons set forth herein, we affirm defendant’s convictions and sentences and remand the matter for correction of an error patent noted herein.

PROCEDURAL HISTORY

On April 17, 2014, a Jefferson Parish Grand Jury returned an indictment charging defendant with two counts of second degree murder, in violation of 14:30.1 (counts one and two); one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count three); and one count of pandering, in violation of La. R.S. 14:84 (count four). At the arraignment on May 5, 2014, defendant pled not guilty.

Following the disposition of some pretrial motions, defendant proceeded to trial before a twelve-person jury on March 16, 2015. After considering the evidence presented, the jury, on March 19, 2015, found defendant guilty as charged on all counts. On March 26, 2015, the trial court heard and denied defendant’s motion for a new trial.

Thereafter, on April 6, 2015, the trial court sentenced defendant to life imprisonment at hard labor on counts one and two, twenty years imprisonment at hard labor on count three, and five years imprisonment at hard labor on count four. The sentences on counts one, two, and three were imposed without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

| .FACTS

This case stems from the killings of Demektric Anderson and Tacara Williams-Moss that occurred in Jefferson Parish in the early morning hours of December 30, 2013.

Ramonica Gainey, a friend of both victims, testified at trial regarding the events surrounding and leading up to the murders. According to Ms. Gainey, she traveled with Mr. Anderson and Ms. Williams-Moss from Memphis to New Orleans in December of 2013 in a black Dodge Charger belonging to Ms. Williams-Moss. The group checked into a Super 8 Hotel in Metairie, and while in town, Ms. Gainey planned to make money by “entertaining.” To accomplish that purpose, Ms. Gainey explained that she made postings to a website, Backpage.com, listing her picture and a contact phone number. Shortly after her post on December 30, 2013, at 4:21 a.m., Mr. Anderson received a phone call and then relayed to Ms. Gainey and Ms. Williams-Moss that he had to go deliver some Xanax pills.

Eventually, all three of them left the hotel in the black Dodge Charger to meet the potential buyer for the pills. Mr. Anderson drove, Ms. Williams-Moss was in the front passenger seat, and Ms. Gai-ney was in the rear passenger seat. They drove a short distance and arrived at an apartment complex. As they pulled into the apartment complex, Ms. Gainey saw a black man standing on the driver’s side. Mr. Anderson spoke with the man through the rolled-down driver’s side window about the price of the pills. Ms. Gainey then noticed another black man at the rear of the car and heard him say, “Is this the guy?” As Mr. Anderson was reaching to put the car in reverse, the two men “opened fire on the car.” Ms. Gainey related that after Mr. Anderson collapsed and the car crashed off the | ¡¡service road, she called 9-1-1. As a result of this gunfire, Mr. Anderson and Ms. Williams-Moss were fatally wounded.

Sergeant Eddie Klein, Detective Thomas Gai, and other members of the Jefferson Parish Sheriffs Office arrived and began their investigation at both the primary scene where the shooting occurred at 2508 Pasadena Avenue and the secondary scene where the incident ended by the entrance ramp near Clearview by the south service road. At trial, Sergeant Eddie Klein testified about the collection of evidence at these two scenes. At the primary scene, the officers recovered a total of sixteen casings from both .45 and 9 mm caliber guns. At the secondary scene, they recovered projectiles from inside of the vehicle, four cell phones, including the one belonging to and surrendered by Ms. Gainey, and two clear bags containing marijuana and pills, later determined to be Xanax.

In addition to collecting evidence, the officers obtained surveillance videos from cameras located in the area surrounding both crime scenes. The videos showed a blue vehicle parking on the corner of Guiff-rías and L Streets and two individuals exiting the vehicle and walking in the direction of the location on Pasadena Avenue where the shootings occurred. Subsequent video shows one suspect running in the direction of the parked vehicle and a second suspect trailing behind. At trial, Lawrence Brookes, an expert in mechanical engineering and automotive design, testified that the blue car depicted in the video surveillance was a Dodge Avenger.

In addition to collecting evidence and obtaining surveillance videos, Detective Gai spoke with Ms. Gainey, the surviving witness, during the initial investigation. As a result, Detective Gai learned about the drug transaction [ ^between the victims and suspects and further discovered that arrangements for the purchase were made via Mr. Anderson’s cell phone.

Detective Gai thereafter obtained search warrants for the cell phones recovered and turned them over to the digital forensic unit for analysis. Of the three phones analyzed, Detective Solomon Burke with the Jefferson Parish Sheriffs Office Digital Forensics Unit was only able to extract data from Mr. Anderson’s phone. His analysis revealed that during the time frame leading up to the shootings, Mr. Anderson’s phone had five interactions with the suspect phone number 504-214-9686 — two incoming calls and three outgoing calls. In particular, Mr. Anderson received two calls from the 214 number on December 30, 2013, the day of the murders — one at 3:01 a.m. and one at 4:58 a.m. The three outgoing calls were also on December 30, 2013 — at 5:02 a.m., 5:10 a.m., and 5:13 a.m. After the 5:13 a.m. call, there was no more outgoing activity on Mr. Anderson’s phone.

Given that these calls occurred in close proximity to the shootings, Detective Gai attempted to track this suspect phone, which was determined to be associated with a prepaid customer. When the cell phone provider was unable to provide a location for this phone, Detective Klein did a Google search of the number that revealed the number was listed on several ads on Backpage.com, a website that facilitates prostitution. Based on the names in these ads, “Magic” and “Honey,” the officers searched and discovered other phone numbers connected to these two women.

Detective Gai then contacted Sergeant Locascio of the vice squad, and he arranged a meeting with these two females at the La Quinta Hotel on Veterans Boulevard. The two women, who arrived in a blue Dodge Avenger driven by defendant, proceeded to the hotel room that had been rented out by Sergeant Locascio. After a transaction was made between him and the women, Detective RGai proceeded to the room, and the two individuals, identified as Abby Stallworth and Calvenia Dott, were arrested.

Both Ms. Stallworth and Ms. Dott testified at trial regarding their association with defendant and the circumstances surrounding their stay in the New Orleans area. Their testimony indicated that they came to New Orleans twice in December of 2013 to try to make money through prostitution and that they used the website Backpage.com to facilitate their work. On their first trip, they met defendant, who introduced himself as “Hurk,” and Jason Thomas, referred to as “Jay,” at the Super 8 Hotel in Metairie. The parties exchanged phone numbers during this first encounter, and at some point, both Ms. Stallworth and Ms. Dott returned to Mississippi. However, after Christmas, they called Mr. Thomas expressing their desire to return, and defendant, Mr. Thomas, and Glenn Lem-mon came to Mississippi in a blue Dodge and brought them back to New Orleans. On this second trip, they stayed at the same Super 8 Hotel in Metairie and again posted on Backpage.com, using a phone that was not their own; it was a flip phone that they had gotten from Mr. Thomas with the phone number 504-214-9686.

While they were staying at the Super 8, defendant and Mr. Thomas “met a guy at the store in a black Charger,” who was selling pills, in particular, Xanax. When the two women expressed an interest in getting some pills, a phone call was made to the seller with the flip phone used in the Backpage.com ad. The two men left and came back with the pills. After their return, Mr. Thomas commented that he wanted to rob the person in the black Charger because he saw some pills and money in the car. The two men left again, and on this occasion, defendant and Mr. Thomas each took a gun with them, as well as the flip phone used to post on the Backpage.com ad.

| (¡Defendant and Mr. Thomas did not return to the Super 8 Hotel, and pursuant to instructions by Mr. Lemmon, Ms. Stall-worth and Ms. Dott relocated to another hotel, the London Lounge. While in the hotel room with defendant, Mr. Thomas, and Mr. Lemmon, news came on the television about the murders of individuals in a black Charger. Ms. Dott described that “they weren’t acting the same” because they were “just all quiet and stuff.” Then the women overheard Mr. Thomas comment that he “got that boy.” Ms. Stall-worth also heard defendant say that he shot too. In addition, Mr. Thomas complained about injuring his foot and defendant told him to “get rid of them shoes.” There was further conversation that the flip phone had been thrown in the river. Since this phone that they were using for their Backpage.com ad was no longer available, Ms. Stallworth and Ms. Dott had to use their own phones for business.

Subsequently, they received a call from a client, asking them to meet at the La-Quinta Inn, After Ms. Dott informed defendant of the call, defendant drove them to the hotel to engage in prostitution. Once in the hotel room, Ms. Stallworth and Ms. Dott were arrested pursuant to the sting operation and brought to the criminal investigations bureau for questioning. As a result of the interviews, the officers were lead to suspects in the shootings — Garard Achelles a/k/a “Hurk,” Jason Thomas a/k/a “Jay,” and Glenn Lemmon a/k/a “Ace.”

In addition, Sergeant Klein stopped defendant on the scene of the sting operation in a blue Dodge Avenger. After defendant was arrested, he gave a statement, in which he claimed to be at McDonald’s with Mr. Lemmon and Mr. Lemmon’s girlfriend, Daintia Brock, during the time surrounding the shootings. | ^However, through the course of the investigation, it was proven that defendant was not at the McDonald’s. In his statement, defendant also admitted being in possession of a firearm.

DENIAL OF BATSON CHALLENGES

In this assignment of error, defendant argues that the trial court erred in denying his Batson challenges because the State exercised its peremptory challenges in a discriminatory manner to exclude five prospective jurors: Samekey Lomax, Ty-neisha Chevalier, Tyreon Edmond, Charlotte Taylor, and Alicia Rice-Jackson. Defendant contends that the State’s race-neutral reasons for excusing these African-American jurors were not sufficient and maintains that he met his burden of proving discriminatory intent.

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory challenges. In Batson v. Kentucky, 476 U.S. 79, 94-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of prospective jurors were based on race. First, the defendant challenging the peremptory strike must establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the State to articulate a neutral explanation for the challenge. Third, the trial court then must determine if the defendant has carried the ultimate burden of proving purposeful discrimination.

The Batson decision is codified in La. C.Cr.P. Art. 795(C), which provides that no peremptory challenge made by the State or the defendant shall be based solely upon the race of the juror. State v. Massey, 11-357 (La.App. 5 Cir. /27/12), 91 So.3d 453, 467, writ denied, 12-991 (La. 9/21/12), 98 So.3d 332. Article 795(C) further provides that if an objection is made that the State or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race-neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror.

Applying this analysis to the instant case, we find that the trial court did not abuse its discretion in denying defendant’s Batson challenges. The first step of our inquiry, whether defendant made a prima facie showing of purposeful discrimination, is rendered moot since the State offered race-neutral explanations. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).

The second step of the analysis, whether the State articulated a race-neutral reason for the challenge, does not demand an explanation that is persuasive or even plausible. The race-neutral explanation must be one that is clear, reasonably specific, legitimate, and related to the case at bar. At the second step of the Batson inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam); State v. Massey, 91 So.3d at 468.

In the present case, after the State exercised a peremptory challenge on a fifth African-American female juror, defendant raised a Batson challenge. Without a request from the trial court, the State provided reasons for the challenges. In particular, the State noted that Ms. Rice-Jackson and Ms. Taylor rated the police a “5” on a scale of 1 tolO. In addition, the State articulated that they were both individuals who responded very quickly on the question of wanting DNA. 19With regard to Ms. Lomax, the State articulated that she “said she was not sure if she could convict on a life sentence” and “indicated she had class.” The State provided that Ms. Chevalier “also said she was not sure if she could convict based on a life sentence,” and that Ms. Edmond “said the same statement about not being able to convict based on a life sentence.” The trial court found all these explanations to be race-neutral. We find no reason to disturb those determinations by the trial court. Accordingly, we proceed to the third step of the Batson analysis, which focuses on whether the defendant has proven purposeful discrimination.

In determining whether a defendant has met his burden of showing purposeful racial discrimination in the State’s exercise of peremptory challenges, the proper question is whether the proof offered by the defendant, when weighed against the State’s proffered race-neutral reasons, is strong enough to convince the trier of fact that the claimed discriminatory intent is present. State v. Wilson, 09-170 (La.App. 5 Cir. 11/10/09), 28 So.3d 394, 405, writ denied, 09-2699 (La. 6/4/10), 38 So.3d 299. A trial judge’s findings on a claim of purposeful discrimination are entitled to great deference by the reviewing court because they depend largely on credibility evaluations. State v. Florant, 12-736 (La.App. 5 Cir. 5/23/13), 119 So.3d 635, 642, writ denied, 13-1451 (La. 1/10/14), 130 So.3d 319. Credibility can be measured by factors including the prosecutor’s demean- or, how reasonable or how improbable the explanations are, and whether the proffered reason has some basis in accepted trial strategy. Because the trial judge has the advantage of observing the characteristics and demeanor of the attorneys and prospective jurors, the trial court occupies the best position for deciding whether a discriminatory objective underlies the peremptory challenges. State v. Massey, 91 So.3d at 469.

Based on our review of the record, and in particular, the voir dire transcript, we find that defendant failed to meet his burden of proving purposeful | ^discrimination. We note that when defendant made his Batson objection, he merely commented, “That’s five black females gone.” No additional facts beyond the raw number of strikes were provided by defendant. We also note that our review of this issue is made difficult because other than the five African-American jurors named in this assignment, the record does not reflect the racial makeup of other members of the venire panels or of the jury that was ultimately impaneled. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s Batson challenges.

EXPERT TESTIMONY

In his first pro se assignment of error, defendant argues that the trial court abused its discretion in qualifying Mr. Brookes as an expert in mechanical engineering and automotive design without inquiring into the relevance and reliability of the testimony as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In the present case, the State noticed its intent to call Lawrence Brookes as “an expert in the Dodge Automobile Product Design.” The State further asserted that this expert, in his testimony, would identify the make of a car seen in video surveillance. On the first day of trial, prior to the beginning of witness testimony, the court conducted a Daubert hearing regarding the expert testimony of Lawrence Brookes.

At the hearing, Mr. Brookes testified regarding his educational background and extensive work experience in the automotive industry. Mr. Brookes had a total L Tof almost twenty-nine years of experience working for Fiat Chrysler Automobiles in numerous capacities. His position, at the time of trial, was the head of product analysis and regulatory processes. He also held certifications in accident reconstruction and vehicle fire and investigation. He testified that with his many years of experience with the company, he was very familiar with any car design that “we’ve manufactured in North America for the past 30, 40 years.” He testified that he was asked to review video footage and still photographs to identify the make of the vehicle depicted therein. Mr. Brookes concluded that the vehicle depicted was “for sure” a Dodge Avenger, most likely a model-year 2012 or later. In making this determination, he pointed out specific features of the vehicle depicted which indicated to him that it was a Dodge Avenger. For example, the headlamps were “square and flat to the front of the vehicle,” the tail lights “line[d] up like a Dodge Avenger,” and the unique “bright blue” color was consistent with colors offered in model-years 2012 to 2014.

Most importantly, Mr. Brookes described that the vehicle depicted had the Dodge Avenger’s back door, which was “very unique” and was “like no other car on the market.” He stated that the combination of all these elements together with his many years of experience enabled him to “deduce from that one video” that the vehicle was “a Dodge Avenger and no other car.” Also for thoroughness, even though he was “a hundred percent sure,” he compared the vehicle depicted to exemplars of other popular mid-sized cars, including a Chevy Malibu, a Chevy Cruze, a Honda Accord, and a Nissan Altima, but based on their features, he again concluded it was a Dodge Avenger. Moreover, Mr. Brookes related that he owned two Dodge Avengers and “look[ed] at them every day in [his] driveway.”

After considering the testimony of Mr. Brookes and the arguments of counsel, the trial found that Mr. Brookes was “certainly an expert in mechanical engineering and auto design” and allowed him to testify at trial in accordance with |12the testimony offered at the hearing. Defendant now argues that the trial court abused its discretion in qualifying Mr. Brookes as an expert in mechanical engineering and auto design when the court failed to apply Daubert’s “gatekeeping obligation,” requiring an inquiry into both relevance and reliability. He contends that Mr. Brookes’ opinion was not based on scientific testing, principles, or methodology and that it was unreliable and had no probative value because it did not assist the jury in determining a fact at issue. As a result, he concludes that his conviction and sentence should be reversed and remanded for a new trial. We find no merit to these arguments.

La C.E. Art. 702 governs the admissibility of expert testimony and provides that a witness, who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.

In State v. Boudoin, 11-967 (La.App. 5 Cir. 12/27/12), 106 So.3d 1213, 1225, writ denied, 13-255 (La. 8/30/13), 120 So.3d 260, this Court discussed the standards for the admissibility of expert testimony as follows:

In State v. Foret, 628 So.2d 1116 (La. 1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La. 5/20/03), 846 So.2d 697, 700-701. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. Daubert’s general “ga-tekeeping” applies not only to testimony based upon scientific | ^knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); and Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d.226.
The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire Co., Ltd., 526 U.S. at 142, 119 S.Ct. 1167. Rather, the law grants a district court “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id.

The trial judge is vested with broad discretion in determining the scope of expert testimony. State v. Borden, 07-396 (La.App. 5 Cir. 5/27/08), 986 So.2d 158, 172. Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge whose rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, 714, writ denied, 09-1316 (La. 3/5/10), 28 So.3d 1002.

In this pro se assigned error challenging Mr. Brookes’ expert testimony, defendant argues that the trial court failed to apply Daubert’s “gatekeeping obligation” which requires an inquiry into both relevance and reliability. This argument is clearly without merit as evidenced by the trial court’s very thorough reasons for judgment. In his reasons for judgment, the trial judge discussed Daubert and the confusion associated with its application in certain cases and further mentioned other cases relating to admissibility of expert testimony. The trial judge specifically cited Cheairs v. State ex rel. Department of Transportation and Development, 03-680 (La. 12/3/03), 861 So.2d 536, and focused on the factors set forth therein in his reasons for allowing the expert testimony.

First, the trial court considered whether the expert was qualified to testify competently about the matters he intended to address. In finding that Mr. Brookes |uwas “certainly an expert in mechanical engineering and auto design,” the trial court stated:

He, based upon his curriculum vitae that he went over at length, he has a master’s in mechanical engineering. He has gone over the designs of automobiles from Chrysler for years and years and years and has been employed with them for nearly thirty years. He’s even dealt with the clay design of the vehicles, the crash testing of the vehicles, the under-body design of these vehicles, the body-in-white and exterior engineering of these vehicles. He is certainly an expert in mechanical engineering and auto design.

Second, the trial court considered whether the methodology by which the expert reached his conclusion was sufficiently reliable as determined by the sort of inquiry mandated in Daubert. The trial court addressed defendant’s concern that “there is absolutely no methodology to be applied in this case, and the Daubert factor should be applied.” The court first commented that the Daubert factors are not necessary or even applicable in all cases and then continued as follows:

I’m not adopting the — the eyeball test, but essentially, the testing, if you will call it that, of Mr. Brookes as looking at the photographs is not a quote unquote testing where the Daubert factors would be useful....
The Court disagrees that Mr. Brookes is simply guessing. Mr. Brookes went on and went through all of these photographs and the video. I’ll say Video 1 he showed the headlamps, noted that it was mid-sized, noted that the rear lamps — he had an explanation for the headlamps and rear lamps were consistent with the 2012 or later Dodge Avenger.
The still 22, he suggested there was a very unique back. The door had a whale swoop and a blacked-out triangle, and that no other vehicle has all of these elements consistent on the same vehicle. And furthermore, there was a blue vehicle, which is a color consistent and offered by Chrysler from 2012 and 2014. The totality of all those design features and the totality of his experience, certainly this Court finds would be helpful and reliable.

Third, the trial court considered whether the testimony would assist the trier of fact through the application of scientific, technical, or specialized expertise to understand the evidence or to determine a fact in issue. In addressing this factor, |1t;ttie trial court found that the testimony Mr. Brookes intended to offer “would assist the trier of fact and that his specialized expertise in dealing with the design of Chrysler vehicles, including the Dodge Avenger, would certainly be helpful to the jury, and that it would determine a fact at issue in this case of whether or not the Defendant was driving or was in the blue Dodge vehicle or some other vehicle.”

Given these extensive reasons addressing both the reliability and the relevancy of the challenged expert testimony, we find no abuse of discretion in the trial court’s ruling that allowed the admission of Mr. Brookes’ expert testimony at trial. Accordingly, the arguments raised by defendant in this assigned error are without merit.

SEVERANCE OF OFFENSES

In his second pro se assignment of error, defendant challenges the trial court’s denial of his motion to sever the offenses.

In the present case, the indictment charged defendant with two counts of second degree murder, one count of illegal possession of a firearm by a convicted felon, and one count of pandering. Prior to trial, defendant filed a motion to sever the offenses pursuant to La. C.Cr.P. Art. 495.1, and at the subsequent hearing on the motion, defendant specifically requested that the pandering charge be separated from the other offenses because it “has absolutely nothing to do” with the other offenses. Defendant argued that he would be prejudiced if the pandering charge was tried with the other offenses because the jury would be confused and would infer guilt based on defendant’s involvement in the pandering.

After considering the arguments of counsel, the trial court denied defendant’s motion, noting that severing the charges “would prohibit the State from telling the entirety of the investigation” and “juries are smart enough to | ^separate the charges.” The court further noted that it would “instruct [the jury] to consider all these charges separately and distinctly” and would provide “sufficient instructions to insure that.. .if there is any prejudice, that it is very slight.”

Defendant now contends that the trial court abused its discretion in denying his motion for severance of the offenses. He specifically contends that trying him on four offenses at the same time resulted in “prejudicial confusion” because the jury had trouble segregating the evidence as to each count. In addition, defendant alleges that the possession of a firearm by a convicted felon charge was extremely prejudicial because it informed the jury that he had been previously convicted of an armed robbery. Further, he argues that the join-der of the offenses allowed the jury to infer a criminal disposition and made the jury hostile to his defenses. We find no merit to these arguments.

La. C.Cr.P. Art. 493 permits the joinder of offenses if the offenses charged “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan” and the offenses are triable by the same mode of trial.

A defendant properly charged in the same indictment with two or more offenses pursuant to La. C.Cr.P. Art. 493 may nonetheless move for a severance of the offenses under La. C.Cr.P. Art. 495.1, which provides as follows:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In determining whether prejudice results from a joinder of offenses, the trial court must consider the following factors: whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a 117criminal disposition, and whether, considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Fontenberry, 09-127 (La.App. 5 Cir. 10/27/09), 27 So,3d 904, 909-10, writ denied, 09-2665 (La. 5/28/10), 36 So.3d 246. In addition, it must be considered that prejudice from the joinder of offenses can be mitigated by clear jury instructions and by an orderly presentation of evidence by the State. State v. Davis, 12-512 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, 84, writ denied, 13-1205 (La. 11/22/13), 126 So.3d 479.

A defendant alleging a prejudicial joinder of offenses has a heavy burden of proof. Motions to sever under La. C.Cr.P. Art. 495.1 are within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion. Factual, rather than conclusory, allegations are required when the defendant alleges prejudicial joinder of offenses on a motion to sever. State v. Fontenberry, 27 So.3d at 910. Finally, there is no prejudicial effect from joinder of offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. State v. Butler, 15-89 (La.App. 5 Cir. 7/29/15), 171 So.3d 1283, 1288, writ denied, 15-1608 (La. 10/10/16), 207 So.3d 408, 2016 WL 6238013.

Applying these principles to the present case, we find that defendant did not meet his heavy burden of proving prejudicial joinder. At trial, evidence of each crime was presented in a logical and orderly fashion. In addition, there is no indication that the jury was confused by the various counts, - or that defendant was confounded in presenting his defense. Moreover, the trial court charged the jury separately as to each' offense, explaining in detail what the State was required to prove with respect to each count. Accordingly, we find that these offenses did not |1Rwarrant a severance, and the trial court did not abuse its discretion in denying defendant’s motion to sever. This assigned error is without merit.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to La. C.Cr.P. Art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). We first note that the transcript indicates that the trial court failed to advise defendant of the two-year prescriptive period for filing an application for post-conviction relief as required by La. C,Cr.P, Art. 930.8. By means of this opinion, we correct this error and inform defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La, C.Cr.P. Arts. 914 or 922. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

Second, we note that the uniform commitment order incorrectly reflects that all four offenses were committed on December 30, 2013. While this is the correct offense date for the two counts of second degree murder, the record indicates that the offense date for the possession of a firearm by a convicted felon charge was on or between December 1, 2013, and December 30, 2013, and that the offense date for the pandering charge was January 1, 2014. In order to ensure an accurate record, we remand this case for correction of the uniform commitment order to reflect the correct offense dates. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Therefore, we direct the trial court to make the appropriate entries reflecting these changes and direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform 113commitment order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. La. C.Cr.P. Art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La. 9/16/06), 937 So.2d 846.

DECREE

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences and remand the matter for correction of an error patent as noted herein.

AFFIRMED AND REMANDED

      . The indictment also charged co-defendant, Jason L. Thomas, with two counts of second degree murder. The matter proceeded to trial before a twelve-person jury that found Thomas guilty as charged. On May 12, 2016, this Court affirmed his convictions and sentences. See State v. Thomas, 15-759 (La.App. 5 Cir. 5/12/16), 192 So.3d 291.

      . The trial court also ordered defendant to pay a fine of $ 1,000.00 on count three.

      . At trial, Dr. Marianna Eserman, a deputy coroner with Jefferson Parish, testified that she performed the autopsies on both victims. According to Dr. Eserman, Mr. Anderson sustained five gunshot wounds, and the cause of death was multiple gunshot wounds to the chest. Ms. Williams-Moss sustained four gunshot wounds, and the cause of death was from a gunshot wound that struck vital organs in her chest. Dr. Eserman testified that the location of these wounds was consistent with one or more shooters being positioned on the driver’s side of the vehicle and with the victims being seated in the vehicle.

      . Glenn Lemmon is referred to as "Ace” throughout the transcript,

      . At trial, testimony indicated that the last two calls made by the suspect phone utilized towers near the Mississippi River. In addition, the Automatic License Plate Recognition System placed the Dodge Avenger near the Mississippi River at the time of the last call.

      . At trial, Daintia Brock testified that on December 30, 2013, she spent time with defendant, Jason Thomas, and Glenn Lemmon at the Super 8 Hotel. At some point, she, Mr. Lemmon, and defendant’s girlfriend, Sheran-da, went to the McDonald's at 2916 Jefferson Highway. However, she testified that neither Mr. Thomas nor defendant went to McDonald’s with them. The State introduced the receipts from McDonald’s dated December 30, 2013, which indicated times at 5:27 and 5:31 a.m. The State also introduced a still photograph taken from the surveillance at McDonald’s that morning. Ms. Brock identified herself, Mr. Lemmon, and Sheranda in the photograph.

      . For the first time, defendant asserts on appeal that jurors Rice-Jackson and Taylor were struck on account of their race because another prospective juror, Lynn Adams, was retained on the petit jury despite offering an answer similar to Jackson and Taylor’s answer regarding their rating of the police. Also, for the first time on appeal, defendant argues that jurors Lomax, Edmond, and Chevalier were struck because of their race because another prospective juror, David Miner, was retained on the petit jury despite offering an answer similar to Lomax, Edmond, and Chevalier regarding their answer about mandatory life sentences. These assertions were not presented to the trial court, and therefore, defendant cannot now present them for the first time on appeal. See La. C.Cr.P. Art. 841; see also State v. Florant, 119 So.3d at 645.

      . Detective Gai, in his testimony, indicated that a witness, who had seen the suspect vehicle that was fleeing on the night of the murders, had informed the police that the vehicle was a Nissan Altima.

      . It is noted that defendant recently filed a pro se reply brief to the State’s opposition to his pro se supplemental appellate brief. Although defendant filed this reply brief after the case was submitted to this Court, we nonetheless considered the arguments presented therein prior to rendering this opinion.


author: THERIOT, J.

text:
    STATE of Louisiana, BY AND THROUGH its Attorney General James CALDWELL v. FOURNIER INDUSTRIE ET SANTE AND LABORATORIES FOURNIER, S.A., Abbott Laboratories, Abbvie, Inc.
    NO. 2015 CA 1490
    NO. 2015 CW 1353
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 22, 2016

      James D. “Buddy” Caldwell, Attorney General, Keetsie T. Gunnels, Nicholas J. Diez, Stacie Deblieux, Baton Rouge, Louisiana, John Alden Meade, New Orleans, Louisiana, Robert L. Salim, Natchitoches, Louisiana, James P. Ryan, Opelousas, Louisiana, Alejandro Perkins, Baton Rouge, Louisiana, Joseph F. Rice, Mt. Pleasant, South Carolina, Michael M. Buchman, Alex R. Straus, New York, New York, Allan Kanner, Conlee S. Whiteley, John R. Davis, New Orleans, Louisiana, T. Allen Usry, New Orleans, Louisiana, M. “Tony” Clayton, Port Allen, Louisiana, Jerald P. Block, Thibodaux, Louisiana, Counsel for Plaintiff/Appellant, State of Louisiana
    David Guerry, J. Wendell Clark, Baton Rouge, Louisiana, Chad J. Peterman, William F. Cavanaugh, George A. LoBiondo, New York, New York, Counsel for Defendants/Appellees, AbbVie, Inc. and Abbott, Laboratories
    BEFORE: McDONALD, McClendon, and theriot, jj.
   THERIOT, J.

lain this antitrust and unfair trade practices suit, the plaintiff-appellant, the State of Louisiana, by and through its Attorney General James D. “Buddy” Caldwell (“the State”), appeals a judgment rendered by the trial court in favor of the defendants-appellees, Fournier Industrie et Sante and Laboratories Fournier, S.A., Abbott Laboratories, and AbbVie, Inc., sustaining the defendants’ exception of prescription and peremption and ordering the dismissal of the State’s claims with prejudice. For the following reasons, we deny the State’s application for supervisory writ, maintain the appeal, vacate the trial court’s ruling sustaining the exception of prescription and peremption, and remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On March 5, 2015, the State filed suit against the defendants pursuant to the enforcement powers of the Attorney General as provided by various Louisiana laws and statutes, including, inter alia, the Louisiana Unfair Trade Practices Act (“LUT-PA”) and the Louisiana Monopolies Act (“LMA”). The defendants are corporate entities that developed and manufactured the cholesterol drug “TriCor.” The active pharmaceutical ingredient in TriCor is fe-nofibrate, a chemical used to treat high cholesterol.

The State alleged in its petition that between approximately 1997 and 2005, the defendants illegally engaged in an anti-competitive scheme to prevent or delay less expensive generic fenofibrate drugs from entering the market. The State specifically alleged the defendants had filed fraudulent patent applications with the United States Patent and Trademark Office, unlawfully listed unenforceable patents in the Food and Drug Administration |/‘Orange Book,” engaged in “product hopping,” and filed sham litigation against would-be competitors in order to prevent or delay market competition.

The State claimed that, as a result of the defendants’ unlawful and anticompetitive behavior, they were able to illegally maintain monopoly power in the fenofibrate pharmaceutical market in the United States for several years. The State averred that, during such time, the defendants sold more than $10,000,000,000.00 in TriCor and maintained the price of TriCor at supra-competitive levels. The State further claimed the defendants’ conduct had resulted in the State overpaying millions of dollars in reimbursements for TriCor prescriptions to patients through the Louisiana Medicaid program.

The State presented several claims for relief based upon the foregoing allegations. The State prayed that judgment be entered in its favor against the defendants for restitution in an amount to be determined at trial, treble damages, and reasonable attorney fees under the provisions of the LMA, La. R.S. 51:121, et seq. Second, the State prayed that judgment be entered in its favor against the defendants for restitution in an amount to be determined at trial, fees, attorney fees, costs, and expenses under the provisions of LUTPA, La. R.S. 51:1401, et seq. Third, and in the alternative, the State prayed that judgment be entered in its favor against the defendants for costs, expenses, and attorney fees under the concept of unjust enrichment as codified by La. C.C. art. 2298. Finally, the State presented a general prayer for relief requesting damages in the amount proven at trial, together with prejudgment interest, costs of the proceedings, fees, attorney fees, expenses, and any further relief as may be justified and to which the State may be entitled by law.

|Jn response to this suit, on May 8, 2015, the defendants filed exceptions of prescription and peremption, no right of action, and no cause of action, along with supporting memoranda. The State opposed these exceptions. The trial court heard arguments on the defendants’ exceptions. No evidence was accepted at the hearing on the exceptions. On August 3, 2015, in open court, the trial court sustained the defendants’ exception of prescription and per-emption. The trial court provided oral reasons for judgment. Thereafter, on August 11, 2015, the trial court signed a judgment in accordance with its oral ruling, granting the exception of prescription and peremption, pretermitting judgment on the alternative exceptions of no right of action and no cause of action, and ordering the dismissal of all claims brought against the defendants by the State. The State now appeals.

ASSIGNMENTS OF ERROR

The State presents two assignments of error on appeal:

1. The trial court erred in sustaining the defendants’ exception of prescription and peremption in this suit, which was brought solely in the name of the State of Louisiana, as the real party in interest, against which prescription does not run.
2. The trial court erred in sustaining the defendants’ exception of prescription and peremption, based upon the defendants’ incorrect assumption that the State of Louisiana is not the proper party in interest to bring the suit and/or that the Louisiana Department of Health and Hospitals has the sole right to assert these claims.

STANDARD OF REVIEW

The facts of this case are not in dispute. No evidence was introduced at the hearing on the defendants’ exception of prescription and peremption. |nThe trial court’s judgment raises a pure question of law for appellate review. In a case involving no dispute regarding material facts, but only the determination of a legal issue, the reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. See TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of Lafourche, 10-0685 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108.

The party urging the exception of prescription has the burden of proving facts to support the exception, unless the petition is prescribed on its face. Although evidence may be introduced to support or controvert the peremptory exception of prescription, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, with all allegations accepted as true. See Cichirillo v. Avondale Industries, Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 428. See also La. C.C.P. art. 931.

DISCUSSION

Louisiana Constitution, Article 12, Section 13, states: “Prescription® shall not run against the [Sjtate in any civil matter, unless otherwise provided in this constitution or expressly by law.” The State’s constitutional immunity from prescription is an established feature of Louisiana law. In fact, an identical provision was found in Article 19, Section 16, of the Louisiana Constitution of 1921; Article 193 of the Louisiana Constitution of 1913; and Article 193 of the Louisiana Constitution of 1898. See Terrebonne Parish Sch. Bd. v. Southdown, Inc., 03-0402 (La.App. 1 Cir. 7/14/04), 887 So.2d 8, 11. The constitutional exception is based upon the traditional doctrine of nullum tempus occurrit vegi, which means, “time does not run against the King.” See Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 878 (5th Cir. 2002).

According to the plain language of La. Const, art. 12, § 13, the benefits of the constitutional immunity from prescription inure in favor of the State. Thus, the constitutional immunity “has very generally been confined to actions brought by and in the name of the [S]tate itself.” Bd. of Com’rs of Port of New Orleans v. Toyo Kisen Kaisha, 163 La. 865, 113 So. 127, 128 (1927) (interpreting Article 19, Section 16, of the Louisiana Constitution of 1921). Municipal corporations and independent state agencies with a distinct legal existence separate from that of the State do not enjoy the benefits of the constitutional immunity from prescription. See e.g., State, Through Dep’t of Highways v. City of Pineville, 403 So.2d 49 (La. 1981); Town of Broussard v. Broussard Vol. Fire Dep’t., 357 So.2d 25 (La. App. 3 Cir. 1978); Lincoln Parish Sch. Bd. v. Ruston College, 162 So.2d 419 (La. App. 2 Cir.), writ denied, 246 La. 355, 164 So.2d 354 (1964); Haas v. Bd. of Com’rs of Red River, Atchafalaya & Bayou Boeuf Levee Dist., 206 La. 378, 19 So.2d 173 (1944).

In City of Pineville, 403 So.2d at 52, the Louisiana Supreme Court explained the importance of the distinction between actions brought by the State and actions brought by state agencies for purposes of the constitutional immunity from prescription:

[T]he “State,” for the purposes of the constitutional immunity from prescription, does not include a state agency which is a body corporate with the power to sue and be sued and which, when vested with a cause of action, is the sole party capable of asserting it. Regardless of its status as an instrumentality of the |fi[S]tate, such an agency remains a distinct legal entity subject to claims of prescription except where the law provides otherwise.

In the matter sub judice, the State brought suit against the defendants in the name of the State of Louisiana, by and through its Attorney General, pursuant to the enforcement powers of the Attorney General as provided by various laws regulating commerce in Louisiana, including, in pertinent part, LUTPA and the LMA. The State is the sole party plaintiff in this suit. The State did not file suit by or through any distinct or independent state agency or municipal corporation. No relevant provision of law provides for the running of prescription against the State in antitrust or consumer protection eases. Thus, this suit is precisely the sort of case to which the constitutional immunity from prescription has historically been confined. Cfi, Toyo Risen Kaisha, 113 So. at 128.

However, we cannot end our analysis at this point, since, under the facts of this case, the correctness of the trial court’s ruling sustaining the exception of ^prescription and peremption is dependent upon whether or not the State has a real and, actual interest in asserting each of the several claims against the defendants. Indeed, notwithstanding the fact that the State is the sole party plaintiff in this suit, the defendants maintain that the trial court correctly sustained the exception of prescription and peremption in their favor on the grounds that the State is not a real party in interest. The defendants aver that the asserted claims actually belong to an independent state agency, the Louisiana Department of Health and Hospitals (“DHH”), which does not enjoy constitutional immunity from prescription.

In light of the interconnected nature of the exception of prescription and peremption and the exception of no right of action, under the facts of this case, we find that the trial court erred in sustaining the exception of prescription and peremption and ordering the dismissal of all of the claims asserted by the State against the defendants without considering the more precise question of whether the State is a proper party in interest to pursue the several claims against the defendants under the controlling provisions of law. This latter question is more properly considered through the exception of no right of action, which exception was held in abeyance by the trial court, along with the exception of no cause of action, pending adjudication of the trial court’s ruling on the exception of prescription and peremption. Therefore, we find it necessary to vacate the trial court’s judgment sustaining the exception of prescription and peremption and remand this case to the trial court for further proceedings.

DECREE

For the foregoing reasons, we deny the State’s application for supervisory writ, maintain the appeal, vacate the trial court’s ruling sustaining the exception of prescription and peremption, and remand this case to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against the defendants-appellees, Fournier Industrie et Sante and Laboratories Four-nier, S.A., Abbott Laboratories, and Abb-Vie, Inc.

WRIT DENIED; APPEAL MAINTAINED; JUDGMENT VACATED; REMANDED.

      . On January 11, 2016, Buddy Caldwell was succeeded in office as the Attorney General of Louisianaby Jeffrey "Jeff” Landry.

      . In oral reasons for judgment, the trial court indicated it was unclear whether the State would need to seek review of the trial court’s judgment through an appeal or an application for supervisory writ. The State responsively filed an application for supervisory writ and sought and received a motion and order for devolutive appeal. On November 18, 2015, the State’s writ action was referred to the panel to which the merits of the State's appeal were assigned. Because the trial court's judgment sustaining the exception of prescription and peremption in favor of the defendants entirely disposed of the lawsuit against the defendants, the ruling constitutes a final and ap-pealable judgment, the merits of which are properly considered on appeal. Therefore, we deny the State's application for supervisory writ and maintain the instant appeal.

      . The same substantive analysis applies to the trial court’s judgment, regardless of whether the claims are subject to the exception of prescription or peremption, because peremption is a species of prescription for purposes of the constitutional immunity from prescription provided by La. Const, art. 12, § 13. See Wooley v. Lucksinger, 06-1140 to 06-1145, 06-1158 to 06-1163 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 456 n.86, rev'd on other grounds, 09-0571, 09-0584, 09-0585, 09-0586, (La. 4/1/11), 61 So.3d 507. See also Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La. 1978).


author: ISHEE, J.,

text:
    Kim Marie GWATHNEY, Appellant v. Gary Joe GWATHNEY, Appellee
    NO. 2015-CA-01276-COA
    Court of Appeals of Mississippi.
    01/10/2017

      TIMOTHY C. HUDSON, ATTORNEY FOR APPELLANT
    MARK ANDREW CLIETT, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Kim Marie Gwathney claims she was entitled to a divorce from Gary Joe Gwathney based on cruel and inhuman treatment. But the Clay County Chancery Court found that she did not present sufficient evidence. Kim appeals. Because the chancellor did not abuse his discretion, apply an erroneous legal standard, or render a decision that was manifestly wrong, we affirm his judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kim and Gary were married in February 2007. They were forty-five and fifty-eight years old, respectively. In June 2012, Kim filed for divorce based on allegations of habitual drunkenness and habitual cruel and inhuman treatment. Gary contested Kim’s claims.

¶3. At trial, Kim testified that Gary started physically abusing her shortly after their marriage. She said he assaulted her “at least fifteen times,” but the results were typically concealed by her clothes. According to Kim, Gary often locked her out of their house, forcing her to sleep in her car or on a picnic table. She estimated that Gary physically abused her between five and ten times during the year before she left their home in June 2012. Aside from generalizations, she presented more specific evidence of two incidents: one in December 2008, and another during the summer of 2011. The two incidents will be addressed in greater detail below.

¶ 4. In July 2015, the chancellor entered his final judgment. After discussing the evidence and his reasoning in great detail, the chancellor held that Kim presented insufficient evidence that she was entitled to a divorce. Kim appeals.

STANDARD OF REVIEW

¶5. “In domestic-relation cases, our review is limited to whether the chancery court’s findings were manifestly wrong or clearly erroneous, or the court applied the wrong legal standard.” Lomax v. Lomax, 172 So.3d 1258, 1260 (¶ 5) (Miss. Ct. App. 2015). If substantial evidence in the record supports the chancellor’s findings of fact, we will not disturb his decision. Id.

ANALYSIS

¶ 6. Kim argues that the chancellor erred when he denied her request for a divorce based on cruel and inhuman treatment. Kim bore the burden of proving, by a preponderance of the evidence:

Conduct that (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the offended party, or (2) is so unnatural and infamous as to make the marriage revolting to the offended spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Bodne v. King, 835 So.2d 52, 58 (¶¶ 19-20) (Miss. 2003). The conduct must be “more than mere unkindness, lack of affection, or incompatibility.” Lomax, 172 So.3d at 1260 (¶ 6). And it generally “must be routine and continuous.” Id. Still, “one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss. 1971). “[T]here is a dual focus on the conduct of the offending spouse and [its] impact ... on the offended spouse.” Harmon v. Harmon, 141 So.3d 37, 42 (¶ 16) (Miss. Ct. App. 2014). “This specific inquiry is subjective.” Id. “Instead of using an ordinary, reasonable-person standard, we concentrate on the conduct’s effect on the particular offended spouse.” Id. “Though a party alleging cruelty must generally corroborate his or her testimony, an exception is made where corroboration is not reasonably possible because of the nature of the accusation.” Id. The Mississippi Supreme Court has held that the standard of proof is high, but certainly not impossible to satisfy. Holladay v. Holladay, 776 So.2d 662, 677 (¶ 65) (Miss. 2000).

¶ 7. The chancellor’s judgment stated, “it is of concern to this Court that there are allegations of physical abuse over the course of the marriage of the parties, but no persuasive corroborating evidence to support said allegations.” The chancellor further noted that “Kim has stated that those episodes have been consistent over the years and frequent[;] [h]owever, she only testified to two instances, the first occurring in 2008 and the last in 2011.” The chancellor discussed the evidence in depth and continuously noted that Kim never produced any witness testimony from law enforcement, medical staff, or eyewitnesses. The only evidence she presented consisted of a neighbor verifying that Kim fled the-house on the night of the alleged 'abuse-in 2008, and a few pictures a friend took the day after the alleged abuse in 2011. The chancellor noted that some of the evidence presented suggested Kim pre-planned her actions after the 2008 incident, when she only went to the hospital for a blood-alcohol-content test to refute allegations that she was drunk during the abuse. Ultimately the chancellor found that there was not sufficient evidence presented to corroborate Kim’s allegations of abuse. The chancellor concluded:

The Court finds that the standards set by our law for the grant of a divorce on the grounds alleged have not been met. Numerous cases in this state summarize the standard needed to be proven by Kim to entitle her to divorce on this ground. In all the five years of marriage, there was no corroborating proof that Kim- spent the night elsewhere other than the periods of separation. She only sought medical care once and that was to disprove her use of alcohol[,] and took no legal action the day after her alleged abuse in 2011. No law[-]enforcement personnel, no police reports, nor any filings of criminal or civil charges took place until the filing of the divorce itself
This Court is of the opinion that [Gary’s alleged] conduct ... does not rise to the level or endangerment of life, limb or health!;] nor is there a reasonable apprehension of such danger. Further[,] there is no persuasive proof that the alleged conduct was so unnatural and infamous as to make the marriage revolting and render it impossible for Kim to discharge the duties of marriage ....

¶ 8. Citing Fulton v. Fulton, 918 So.2d 877 (Miss. Ct. App. 2006), Kim claims the chancellor erred when he found there was insufficient evidence to award her a divorce based on habitual cruel and inhuman treatment. In Fulton, this Court held:

Although [the wife] testified only to three specific instances of physical abuse on the part of [her husband], and only one instance occurred during the course of the parties’ marriage, her own testimony and her corroborating witnesses’ testimony demonstrated a pattern of abuse that enabled the chancellor to grant a divorce on the grounds of habitual cruel and inhuman treatment.

Id. at 881 (¶ 10). Although this Court held in Fulton that a chancellor had not abused his discretion when he awarded a divorce for habitual cruel and inhuman treatment under the circumstances of that case, it should not be interpreted as though a chancellor is required to grant a divorce under circumstances that are loosely related, at best. Three witnesses corroborated the wife’s testimony in Fulton. Id. at 880-81 (¶ 9). Here, it was within the chancellor’s discretion to find that there was inadequate corroborating evidence that Kim suffered cruel and inhuman treatment. The chancellor thoroughly articulated his reasoning, and he expressly noted that Kim did not call her sister as a witness to corroborate her claim that she had spent several nights with her after alleged altercations with Gary. And although there was evidence that Kim’s coworker, Lisa Read, took pictures of bruises the day after Gary allegedly physically abused Kim during an argument, the chancellor was not inherently obligated to find that single incident constituted sufficient proof of cruel and inhuman treatment.

¶ 9. “[A]s the trier of fact, [the chancellor] evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Holladay, 776 So.2d at 676 (¶ 62). We do not find that the chancellor was manifestly wrong or that he applied an erroneous legal standard. This opinion should not be construed as though a chancellor could never find cruel and inhuman treatment under the same or similar circumstances. Instead, we simply hold that it was within the chancellor’s discretion to consider the particular nuances of this case, weigh the evidence, and determine that the proof fell short of habitual cruel and inhuman treatment. To hold otherwise, we would have to improperly substitute our view for the chancellor’s. Because that would be beyond the scope of the standard of review, we affirm the chancellor’s judgment.

¶10. THE JUDGMENT OF THE CLAY COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . In Kumar v. Kumar, 976 So.2d 957, 960 (¶ 13) (Miss. Ct. App. 2008), this Court stated that "[t]he chancellor's determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law” that we review de novo. In so doing, we relied on Potts v. Potts, 700 So.2d 321, 322 (¶ 10) (Miss. 1997), and Reed v. Reed, 839 So.2d 565, 569 (¶ 13) (Miss. Ct. App. 2003). In Potts, the Mississippi Supreme Court cited Bland v. Bland, 629 So.2d 582, 586 (Miss. 1993), and held that a chancellor’s findings regarding whether a spouse’s “conduct rose to the level of habitual cruel and inhuman treatment ... is a determination of law, and is reversible where the chancellor has employed an erroneous legal standard.” Potts, 700 So.2d at 322 (¶ 10) (emphasis added). However, nothing in Bland appears to support the concept that a chancellor’s factual determination is a question of law. Instead, the Supreme Court stated that “[e]specially in the divorce arena, the chancellor’s findings will not be reversed unless manifestly wrong.” Bland, 629 So.2d at 587. And no portion of Bland addressed a chancellor’s conclusion regarding whether conduct qualified as cruel and inhuman treatment. Fully cognizant of our place in the hierarchy of Mississippi courts, we do not comment on the subject out of any form of criticism, but to note our awareness of the precedent, and to explain our reliance on the more unequivocal command that an appellate court is "required to respect the findings of fact made by a chancellor” where they are "supported by credible evidence and not manifestly wrong [-] ... particularly ... in areas of divorce.” See Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss. 1998) (quoting Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990)).


author: BARNES, J.,

text:
    Jason BOZEMAN a/k/a Jason Bozman Appellant v. STATE of Mississippi Appellee
    NO. 2015-KA-00934-COA
    Court of Appeals of Mississippi.
    01/17/2017
    OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SU-BER, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. On December 15, 2012, eight-year-old M.W. was spending the weekend with her grandmother, S.C. The child informed S.C. that Jason Bozeman, her uncle, had inappropriately touched her on several occasions in the past few months. Bozeman, who was in his thirties, lived in a camper on the same property where M.W. and her parents resided. S.C. immediately informed the child’s parents, who contacted the Tunica County Sheriffs Department. A forensic interview with the child took place January 24, 2013; no physical examination of the child was conducted.

¶ 2. Bozeman was indicted for one count of fondling and two counts of sexual battery in violation of Mississippi Code Annotated sections 97-5-23 and 97-3-95 (Rev. 2006). During the jury trial, M.W. testified that Bozeman had touched her with his hands and his “private parts.” Based on the details provided to her by the child, the forensic interviewer testified that her “findings were consistent with that of a child that had been sexually abused.”

¶3. Bozeman was convicted of count one, fondling, and sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended, with the sentence to run consecutively to any sentences previously imposed. He was found not guilty of the other two counts of sexual battery, and those charges were dismissed. Bozeman filed a motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial, which the circuit court denied. Finding no error, we affirm Bozeman’s conviction and sentence.

DISCUSSION

¶4. Bozeman’s sole argument on appeal is that, due to the State’s failure to provide any physical evidence that he touched the child inappropriately, the verdict is against the overwhelming weight of the evidence. He notes there was no medical examination of M.W. conducted to determine if the child had been molested. Therefore, Bozeman contends he is entitled to a new trial.

¶ 5. “[Mjatters regarding the weight of the evidence are within the province of the jury.” Jackson v. State, 154 So.3d 58, 62 (¶ 18) (Miss. Ct. App. 2014) (citing Stegall v. State, 765 So.2d 606, 610 (¶ 10) (Miss. Ct. App. 2000)). “A jury’s verdict will not be disturbed unless ‘it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Hernandez v. State, 137 So.3d 889, 893 (¶ 18) (Miss. Ct. App. 2013) (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005)). When asked at trial whether Boze-man had touched her “in places he shouldn’t have,” M.W. replied affirmatively-

Q. You said he touched you with what? Was it his hands or something else?
A. With his hands.
Q. Did he touch you in places he shouldn’t have touched you?
A. Yes, sir.
Q. Did he take anything besides his hand when he touched you? Did he use his private parts or anything when he touched you?
A. Yes, sir.

The forensic interviewer corroborated this testimony, explicitly stating:

Based on all the information that [M.W.] told me, that [Bozeman] put his mouth on her mouth, that he put his mouth inside her vagina, all of the sensory information that she was able to provide, the fact that she told me he put his penis and two fingers inside her buttocks, his penis on and inside her vagina, and that she had to play with his penis or touch his penis, my findings were consistent with that of a child who has been sexually abused.

¶ 6. Bozeman testified, however, that he never touched M.W. During his closing argument, defense counsel asserted that there was “no proof ” and that the State “didn’t have nothing but the words.” As the Mississippi Supreme Court has observed, however, “there is typically no physical evidence of fondling.” Derouen v. State, 994 So.2d 748, 752 (¶ 10) (Miss. 2008). In Derouen, the supreme court rejected a defendant’s argument that it was “merely [the victim’s] word against his and that there was no physical or eyewitness evidence of fondling.” Id. at (¶ 9).

This Court has found that “the testimony of a single uncorroborated witness is sufficient to sustain a conviction even though there may be more than one person testifying to the contrary.” Williams v. State, 512 So.2d 666, 670 (Miss. 1987). Further, ... “[t]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence.” Torrey v. State, 891 So.2d 188, 192 [ ](¶ 18) (Miss. 2004) [(overruled on other grounds)].

Derouen, 994 So.2d at 752 (¶ 9); see also Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss. Ct. App. 2002) (“[T]he absence of physical evidence does not negate a conviction where there is testimonial evidence.”). This Court has further found that “[p]hysical evidence is not required to sustain [a defendant’s] convictions of statutory rape, sexual battery, or gratification of lust.” Sims v. State, 127 So.3d 307, 313 (¶ 20) (Miss. Ct. App. 2013).

¶ 7. We do not find that the verdict was against the overwhelming weight of’ the evidence. Accordingly, the circuit court did not abuse its discretion in denying Boze-man’s motion for a new trial, and this issue is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS TO SERVE AND FOUR YEARS SUSPENDED, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, TO PAY A FINE OF $1,000, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J„ NOT PARTICIPATING.

      . Due to the victim's age and the sexual nature of the crime, initials are being used to protect the victim's identity.

      . Bozeman was M.W.'s uncle by marriage; he was married to the sister of M.W.’s father, and the couple was going through a divorce.