author: GENOVESE, Judge. AMY, J.,

text:
    STATE of Louisiana v. Walter URENA.
    No. 15-1065.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2016.
    Rehearing Denied May 25, 2016.

      Dmitre I. Burnes, Burnes, Burnes & Talley, LA, for DefendanVAppellant Walter Urena.
    Phillip Terrell, District Attorney—Ninth Judicial District, Monica D. Doss, Assistant District Attorney, Alexandria, LA, for Appellee State of Louisiana.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|, After remand for resentencing, Defendant, Walter Urena, is again before this court, appealing his sentence on two of five counts of aggravated incest of which he was convicted. He alleges excessive sentence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant was initially charged with six counts of aggravated incest (count one concerned alleged victim, J.U.; counts two through six concerned victim, S.L.). Defendant was acquitted of count one but convicted of the remaining five counts for sexually abusing his then five-year-old stepdaughter over a six-year period from 1998 through 2004.

At trial, the jury acquitted Defendant of count one, but convicted him of the remaining five counts as charged. He was sentenced to the maximum of twenty-year terms of imprisonment on counts two and three, to be served consecutively, and ten years on each of the remaining three counts, to be served concurrently with each other and with the two twenty-year terms, for a total sentence of forty years imprisonment. Defendant’s convictions were affirmed on appeal; however, while this court affirmed the sentences imposed on counts four, five, and six, this court vacated the sentences on counts two and three and remanded the matter to the trial court for resentencing. State v. Urena, 13-1286 (La.App. 3 Cir. 5/7/14), 161 So.3d 701, writ denied, 14-1603 (La.4/10/15), 164 So.3d 829.

12After remand, Defendant was resen-tenced to ten years as opposed to twenty years imprisonment at hard labor on each of counts two and three, to be served consecutively, but concurrently with the sentences imposed on counts four, five, and six, for a total sentence of twenty years imprisonment, with credit for time served. Defendant filed a “Motion to Reconsider Sentence on Remand Pursuant to C.Cr.P. ART, 881.1.” The trial court denied Defendant’s motion without a contradictory hearing, but with written reasons.

Defendant is now before this court only appealing the consecutive ten-year sentences on counts two and three, alleging that the total of twenty years imprisonment is constitutionally excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find no actionable errors patent.

ASSIGNMENTS OF ERROR

Defendant’s assignments of error culminate with the contention that all of his sentences should have been ordered to be served concurrently for a total term of imprisonment of ten years. He asserts that the trial court erred when it ordered the ten-year sentences imposed on counts two and three to be served consecutively and that the combined twenty-year sentence is constitutionally excessive. His argument is comprised of the following assertions: 1) the trial court erred when it imposed harsher punishment on counts two and three than the other counts when there was no distinction made among all five counts; 2) the trial court based the consecutive sentences on facts not in evidence; 3) the trial court made an improper ex post facto application of the law; 4) and the trial court improperly considered |3elements of the offense as aggravating factors to support the consecutive sentences in violation of State v. Vincent, 624 So.2d 1300 (La.App. 3 Cir.1993).

This court, in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, set forth the following standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In order to decide whether a sentence shocks this court’s sense of justice or makes no measurable contribution to acceptable penal goals, this court has stated:

[An] appellate court may consider sevei-al factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Louisiana Code of Criminal Procedure Article 883 provides, in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

“[I]n cases involving offenders without prior felony record, concurrent rather than consecutive sentences should be imposed, particularly where the convictions arise out of the same course of conduct.” State v. Brown, 627 So.2d 192, 199-200 (La.App. 3 Cir.1993), writ denied, 93-3101 (La.3/18/94), 634 So.2d 850 (citing State v. Jacobs, 383 So.2d 342 (La.1980); State v. Cox, 369 So.2d 118 (La.1979)).

Among the factors to be considered are the defendant’s criminal history, State v. Ortego, [382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980) ]; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the defendant’s apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987); the potential for the defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir. 1987); and whether the defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010.

|BIn State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917 (La.6/25/04), 876 So.2d 823 (citing State v. Pittman, 604 So.2d 172 (La.App. 4 Cir.1992), writ denied, 610 So.2d 796 (La.1/8/93)), the fourth circuit set forth the standard to be used when considering consecutive sentences for crimes arising out of the same scheme or plan, as follows: “[T]he trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.[Code Crim.P.] art. 894.1.”

In the instant case, at the resentencing hearing, defense counsel set forth his reasons why the original twenty-year sentences imposed on counts two and three should be reduced to ten years and ordered to be served concurrently with each other and with counts four, five, and six, for a total of ten years imprisonment. The sentencing range for an offense of aggravated incest was five to twenty years. La. R.S. 14:78.1. After hearing argument by defense counsel, the trial court gave an extensive ruling in open court, which addressed primarily its reasoning for ordering the consecutive ten-year sentences on counts two and three.

At the resentencing hearing, the trial court began by reading a portion of this court’s prior opinion which set out the facts of the case, as follows:

BY THE COURT:
S.L. was nineteen years old at the time of trial. She recalled that Defendant had moved in with her mother when she was five years old. Starting shortly thereafter, S.L. testified that he would touch her on the breast or vagina, over or under her clothes, or both. She stated it would happen either in her bed or on the couch in the living room. She testified it continued until junior high school; quote, “Sometimes multiple times a week.” End of quote. She stated that when he was in bed with her, she was aware of his erect penis.
Although the victim stated she had told a friend about what was occurring when she was fifteen years old, she never told her mother or |flher father, whom she saw every other weekend, about Defendant’s behavior. She testified that at first she did not say anything because she was afraid of where she and her mother would go. She explained that later, she knew what it was like not having a father around and was afraid if she complained, her baby brother would end up without a father also. She further explained that when she was older, she simply told him “no,” and he left her alone. Finally, after her mother and Defendant divorced, she never said anything because he was gone, and she no longer had to deal with him. She further testified that he never threatened her in any way not to tell.

After adopting by reference the factors considered at the original sentencing hearing, the trial court noted that Defendant was a first felony offender and stated:

However, having noted that, I have also noted and will reiterate that the Defendant was the juvenile’s stepfather at the time who used his position to prey on this young victim who was under his supervision and control when he committed the offenses. He, thus, violated his sacred obligation to protect and nurture her.
The court also specifically finds that the Defendant deliberately and repeatedly sexually abused the child, which has caused lasting emotional problems. Undoubtedly the victim will carry the scars of what he did to her throughout her life.... And whether she will be able to have a relationship with an adult male because of this, I’m certainly not in a position to answer. But if you look at the statistics, problems can and do occur repeatedly because of these type situations.
This sexual abuse occurred from 1998 through 2004 and started when she was five years old. These repeated acts reflected a propensity to prey on one unable to protect herself when so young and vulnerable and the incapacity of resistance given her young age when this started.

The trial court then discussed La.R.S. 14:81.2(C)(1), molestation of a juvenile, noting that “the reason I point this particular statute out is to point out that the legislature has recognized the seriousness, if you will, of the offense when it occurs over a period of time.”

The trial court continued:

In this ease, it was approximately a six-year period of time. And because of the psychological and emotional trauma, certainly repeated acts over this lengthy period of time causes that to endure and last, if [7you will. Plus, the egregiousness and gravity of the offenses, the vulnerability of the victim, the • harm done to the victim in the manner of psychological and emotional trauma and the duration of time over which these events occurred are all factors which have been considered by this court in imposing consecutive sentences. Moreover, notably the Defendant’s actions were not part of a single, isolated offense or occurrences nor can it be said that Defendant has accepted responsibility for his actions-at least of the time the pre-sentence was composed.
Now, I have carefully given the reasons why I think consecutive sentences are appropriate in this case. That having been said, with respect I have evaluated all of the factors of [the] guidelines, the mandates, whatever you wish to call them, given me by the court of appeal. And for that reason, I do find that some reduction in sentence is appropriate under the facts and circumstances of this individual case. But, that having been said, I will point out that I think any lesser sentence than the one to be imposed would deprecate the seriousness of the crime and I do find the Defendant is in need of custodial empowerment, [sic]

Excessiveness of the two ten-year sentences served consecutively.

Defendant argues that the total of twenty years imprisonment is constitutionally excessive, considering that defendants who committed much more egregious sexual acts against juveniles received less than twenty years imprisonment. He points out that this court, in its prior opinion which vacated and remanded the two consecutive twenty-year sentences, stated that the consecutive sentences were “excessive individually and consecutively under the circumstances of the case and in comparison with similarly situated defendants and offenses.” Urena, 161 So.3d at 712-13.

\R1. Imposition of harsher punishment on counts two and three by ordering them to be served consecutively when there was no distinct ion made among all five counts.

Defendant questions how counts two and three can be treated more harshly than counts four, five, and six, when there was no distinction between the charges. In the indictment, counts two through six each read:

IN THAT HE DID ON OR ABOUT AND BETWEEN THE 1ST DAY OF JANUARY, 1998 AND THE 31ST DAY OF DECEMBER, 2004, commit indecent behavior and/or molestation and/or sexual battery of a juvenile, S.L., DOB 12/17/93, to whom he is related, in violation of R.S. 14:78.1.

The trial court noted that the victim in this case described only touching on the breast and the vaginal area, both over and under her clothes, sometimes while sitting on the couch and sometimes in her bed. She also testified at trial that Defendant never threatened her.

At the time of the offenses of aggravated incest (La.R.S.14:78.1), the prohibited acts pertinent to this ease included: sexual battery (La.R.S.14:43.1), which involved a victim under the age of fifteen and the touching of the victim’s genitals using any part of the body of the offender; indecent behavior with a juvenile (La.R.S.14:81), which involved a victim under the age of seventeen and a lewd or lascivious act with the intention of arousing or gratifying the sexual desires of either party; and, molestation of a juvenile (La.R.S.14:81,2), which involved a victim under the age of seventeen, a lewd or lascivious act, and use of influence by virtue of a position of control or supervision over the victim.

The trial court did not, either at the first sentencing hearing or at the resentencing hearing, specify any instances which made counts two and three more onerous than the remaining three counts. While the trial court referred to the facts [9that Defendant was the victim’s stepfather, the duration of the acts, the victim’s youth, and the psychological harm the victim suffered, these factors could be found in any or all of the remaining counts. Defendant argues that there was no distinction made between any of the five offenses of aggravated incest in this case and that the five offenses constituted a common scheme or plan.

Though there was no specific “distinction” made between any of the five offenses of aggravated incest or any common scheme or plan, the record clearly reveals facts and circumstances in substantiation of the trial court’s ruling. Further, we find that the trial court’s reasons at resen-tencing fully support its discretion in imposing the consecutive sentences.

2. The trial court based the consecutive sentences on facts not in evidence.

Defendant argues that the trial court took facts not in evidence into consideration when it decided to combine two of the ten-year sentences. During the re-sentencing hearing, the trial court referred to the psychological harm the victim suffered because of Defendant’s acts. The trial court stated that “the victim will carry the scars of what he did to her throughout her life.... And whether she will be able to have a relationship with an adult male because of this, I’m certainly not in a position to answer.” Defendant argues that “there was absolutely zero evidence or testimony to support these comments by the court.”

However, the victim testified at trial that she did not reveal what was happening at the time because she was afraid of what would become of her and her mother. She further testified that once her baby brother was born, she was worried that if she told he would find himself without a father, and she knew what it was like not to have a father. She also testified that because of Defendant’s actions, she disliked him even hugging her affectionately.

holt is not required that the record show that the victim actually suffered specific psychological harm after having her childhood distorted by Defendant’s behavior. In State v. Brown, 27,182 (La.App. 2 Cir. 8/23/95), 660 So.2d 123, the defendant, who pled guilty to indecent behavior of a juvenile, appealed the sentence, which was an upward departure from the sentencing grid. The defendant argued the trial court used as an aggravating circumstance possible psychological harm to the victim. The second circuit noted:

The extent and duration of psychological injuries, unlike physical injuries, are often incapable of precise determination. Nevertheless, it is well known that child sexual abuse leaves lasting scars that often carry from one generation to the next. Significant permanent injury is a valid aggravating circumstance. La. S.G.[] § 209(B)(9). It is thus difficult to determine if this victim’s psychological injury is a valid circumstance because, to a large extent, such injury seems inherent in the offense.

Id. at 126.

In the instant case, the evidence in the record indicated that the victim’s childhood was difficult and traumatic, and testimony established that she suffered problems that should not have been in her young life. While the trial court was exuberant in its description of the victim’s emotional life following a childhood spent being sexually abused, the trial court did not err in considering the psychological harm to the victim.

3. An improper ex post facto application of the law.

Defendant contends that the trial court erred when it considered a punishment for an offense he was not charged with. He argues that “most important, is that of making an ex post facto application of law.” As noted above, while explaining why it was ordering consecutive sentences, the trial court pointed Into the punishment provision of the current statute on molestation of a juvenile (which was listed as one of the prohibited acts in the aggravated incest statute). Defendant argues:

This is extremely inappropriate in that URENA was not charged with violation of that statute specifically. Furthermore, those portions of the molestation statute which the trial court quoted concerning a punishment of incarceration of five to forty years were not enacted until Act 36 of the 2006 Legislative session, more than two years after the latest time mentioned in the Bill of Indictment.

At the time of the offenses, between January 1998 and December 2004, the statute pertaining to punishment for molestation of a juvenile, La.R.S. 14:81.2(D)(1), provided, in pertinent part:

Whoever commits the crime of molestation of a juvenile when the incidents of molestation recur during a period of more than one year shall, on first conviction, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not less than five nor more than fifteen years, or both.

Currently, La.R.S. 14:81.2(0(1) provides, in pertinent part:

Whoever commits the crime of molestation of a juvenile by violating the provisions of Paragraph (A)(1) of this Section, when the incidents of molestation recur during a period of more than one year, shall on first conviction, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not less than five nor more than forty years, or both.

The trial court specifically noted that it mentioned the increased punishment range to illustrate the Louisiana legislature’s growing concern regarding sexual offenses against children. The trial court was simply explaining its reasoning for ordering the two ten-year sentences to be served consecutively. Furthermore, the individual ten-year sentences did not exceed the maximum sentences that were in effect at the time of the crime. There was no ex post facto or legally impermissible application of law.

I iz4. The trial court improperly considered as aggravating circumstances facts that were elements of the offenses in violation of Vincent, 624 So.2d 1300.

Defendant argues that in order to justify the consecutive sentences, the trial court considered the facts of the victim’s youth and that Defendant was her stepfather. Defendant further argues that these factors are elements of the offense of aggravated incest and that using these factors to enhance the sentences by ordering them to be served consecutively was a violation of Vincent, 624 So.2d 1300, wherein the trial court used elements of the offense to justify imposing consecutive sentences.

In Vincent, 624 So.2d 1300, the defendant was convicted of five counts of indecent behavior with a juvenile. The trial court ordered the sentences for counts two and five to be served consecutively for a total sentence of eight years. The sentences on the remaining counts were one to three years and were ordered to be served concurrently with each other and with the two consecutive sentences. The recommended sentencing range at the time was fifteen to thirty months. The defendant appealed the trial court’s upward departure from the recommended sentencing range, asserting that “[t]he trial court erred in departing from the sentencing guidelines on the basis of ‘aggravating’ circumstances[.]” Id. at 1301. After discussing both state and federal guidelines for sentencing, this court noted:

In particular, the trial court found as aggravating circumstances that defendant knew the victims were especially vulnerable due to extreme youth, noting that the young girls were in the neighborhood of twelve years old at the time several of these offenses commenced; defendant used his position as stepfather of D.L. to facilitate the commission of the offense; the offenses resulted in significant permanent injury to the victims and their families; and the defendant was persistently involved in similar offenses not already considered as criminal history, noting that defendant had practiced the same perversions on his biological daughter, J.V.M.
|13[Federal Sentencing Guidelines] § 209(B)(2) and (9) list in part as aggravating circumstances that the offender knew or should have known that the victim was particularly vulnerable or incapable of resistance due to extreme youth and that the offense resulted in a significant permanent injury to the victim or his family. However, factors which constitute essential elements of the offense of conviction shall not be considered aggravating circumstances. FSG § 209(B).
In State v. Norrell, 614 So.2d 755 (La.App. 2d Cir.1993), defendant was convicted of two counts of oral sexual battery and molestation of a juvenile. In departing from the recommended sentencing range, the trial court found several aggravating circumstances, including (1) that the defendant knew or should have known that the victim (a fourteen year old boy) was particularly vulnerable or incapable of resistance due to his extreme youth and lack of experience in life, and (2) that defendant’s acts created a risk of grave harm to the boy as such acts could cause him to have perverted sexual orientations.
While affirming the sentences based on other grounds, the Second Circuit held that these factors should not have been considered as aggravating by the trial court. The Second Circuit explained that both oral sexual battery and molestation of a juvenile have as elements of the offense the youth of the victim. The court also explained that the grave risk of harm to the victim there was present in the “typical” case involving oral sexual battery and molestation of a juvenile. The court did state, however, that in some circumstances the age of the victim and the risk of harm posed to him or her may be more aggravated.
Likewise, we find that these factors should not have been considered as aggravating in the case now before us. The offense of indecent behavior with a juvenile necessarily has as an element the youth of the victim, and the victims’ ages were not so “extreme” as to allow consideration of this factor standing alone as aggravating. Also, while the record does support that the victims suffered and may continue to suffer due to the offenses committed against them, this suffering does not appear to be “atypical” of the offense of indecent behavior with a juvenile. Unfortunately, this type of harm is “typical” of the offense.

Id. at 1302-03. Ultimately, this court in Vincent, 624 So.2d 1300, found other appropriate aggravating factors to support the consecutive sentences that were not elements of the offense.

| i,tIn the instant case, the trial court considered elements of the offense, the psychological harm the victim suffered because of her youth, and the fact that Defendant, as her stepfather, was supposed to protect her, as aggravating factors to support the imposition of the two ten-year sentences for a total of twenty years imprisonment at hard labor. Accordingly, the issues before this court are whether the trial court erred when it used elements of the offense as aggravating factors in violation of Vincent, 624 So.2d 1300, and whether the total of twenty years imprisonment was excessive under the circumstances of this case.

As noted above, elements of the offense cannot be used to enhance a sentence of imprisonment by making two sentences run consecutively unless the specific element of the offense considered by the trial court is so egregious that it is not typical of the offense. In State v. Walker, 96-112 (La.App. 3 Cir. 6/6/96), 677 So.2d 632, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924, the defendant was convicted of aggravated oral sexual battery. He was sentenced to the maximum sentence of twenty years imprisonment, with the sentence to be served consecutively with two other sentences he was serving for aggravated crime against nature and oral sexual battery, a nine-year sentence and a five-year sentence to be served concurrently. The defendant argued that all the sentences should be served concurrently. He contended that the trial court erred when it considered as aggravating factors that the victim was particularly vulnerable because of her youth and that the offense was serious and caused a grave risk of harm to the victim. This court discussed what constituted sufficient aggravating factors upon which to base consecutive sentences, as follows:

In addressing defendant’s contention that the victim’s age is an element of the crime, we note that in State v. Vincent, 624 So.2d 1300 (La.App. 3 Cir.1993), this court affirmed the sentences. Citing State v. Norrell, 614 So.2d 765 (La. App. 2 Cir.1993), this court found that the age of the victims, ranging in age from eleven to sixteen years old, and the harm caused to them should not have been considered as aggravating factors:
The offense of indecent behavior with a juvenile necessarily has as an element the youth of the victim, and the victims’ ages were not so “extreme” as to allow consideration of this factor standing alone as aggravating. Also, while the record does support that the victims suffered and may continue to suffer due to the offenses committed against them, this suffering does not appear to be “atypical” of the offense of indecent behavior with a juvenile. Unfortunately, this type of harm is “typical” of the offense.
Vincent, 624 So.2d at 1303.
In Norrell, 614 So.2d 755, the defendant was convicted of two counts of oral sexual battery and molestation of a juvenile. In departing from the recommended sentencing range, the trial judge found several aggravating circumstances, including: (1) that the defendant knew or should have known that the victim, a fourteen year old boy, was particularly vulnerable or incapable of resistance due to his extreme youth and lack of experience in life, and (2) that defendant’s acts created a risk of grave harm to the boy as such acts could cause him to have perverted sexual orientations.
While affirming the sentences based on other grounds, the second circuit, citing Federal Sentencing Guidelines, § 209(B), held that “[fjactors which constitute essential elements of the offense of conviction or separate offense(s) for which defendant was convicted and sentenced shall not be considered aggravating circumstances.” Id. at 757. The second circuit also explained that the grave risk of harm to the victim was present in the “typical” case involving oral sexual battery and molestation of a juvenile. The second circuit did state, however, that in some circumstances the age of the victim and the risk of harm posed to him may be more aggravating.
In State v. Brown, 27,182, pp. 4-5 (La.App. 2 Or. 8/23/95); 660 So.2d 123, 126, the second circuit revisited its prior holding in Norrell, 614 So.2d 755:
In this case, the victim was only ten years old. Common experience tells us that there is a vast difference in the mental and physical maturity of an adolescent teenager, as in the Nor-rell case, and a pre-adolescent child like the victim in this case. Whether technically an ^aggravating factor or not, the instant child’s tender age is an appropriate consideration for the trial court.
The present case is more analogous to this court’s holding in Brown, 627 So.2d 192, in that this victim is under the age of twelve. Although this factor is an element of the crime, the trial court considered it as an aggravating factor. Because of this victim’s tender age, the risk of harm posed to her is more aggravated than in the typical case. Thus, we find that the trial court’s consideration of the age of the victim and the harm caused her, though not technically aggravating factors, was not improper.

Id. at 536-57 (alterations in original).

In the instant case, Defendant argues that the victim’s “youth” was an element of the offenses and therefore cannot be considered as an aggravating circumstance. He further argues there was no evidence of physical harm and points out that there was no testimony that the victim suffered any actual psychological harm. However, the trial court discussed at resentencing the psychological harm done to the victim. The trial court noted that the acts of sexual abuse occurred over a long period of time and that the Louisiana legislature recently chose to increase the range of punishment for sexual offenses against children that last longer than a year, indicating that long term sexual abuse merits a harsher punishment.

Considering the trial court’s articulation of the vulnerability of the victim due to her youth, since she was five when the abuse started, and the fact the abuse continued until she was twelve years old, which added to the inevitable psychological harm inflicted by her stepfather, we find these factors were “atypical” and, as such, were justification for imposing the two ten-year sentences, for a total of twenty years imprisonment. Accordingly, we affirm the sentences as imposed by the trial court.

| ^DISPOSITION

Defendant’s sentences are affirmed.

AFFIRMED.

AMY, J., concurs and assigns separate reasons.

AMY, J.,

concurring.

I agree with the majority that an affirmation is appropriate in this case. However, I further note that La.Code Crim.P. art. 883 orders that the terms of imprisonment for convictions for “two or more offenses based on the same act or transaction ... shall be served concurrently unless the court expressly directs that some or all be served consecutively.” (Emphasis added.) In this case, the defendant was convicted of separate offenses that occurred over a multi-year span. Notwithstanding the trial court’s articulation of the circumstances of the offenses, I find that application of Article 883, alone, supports the trial court’s order that the sentences be served consecutively. Simply, the offenses were not “based on the same act or transaction.” Id.

      . The offenses of ‘‘incest” and "aggravated incest,” La.R.S. 14:78 and La.R.S. 14:78.1, were repealed, but incorporated with "crimes against nature” and "aggravated crimes against nature," La.R.S. 14:89 and La.R.S. 14:89.1. 2014 La. Acts No. 177, effective August 1, 2014 and 2014 La. Acts No, 602, effective June 12, 2014.

      . The initials of the victims are used in accordance with La.R.S. 46:1844(W).

      . Louisiana Sentencing Guidelines.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Robert Lee HEARD, Jr.
    No. 15-873.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2016.
    Jeff Landry, Attorney General, Matthew H. Long, Colin Clark, Assistant Attorneys General, Baton Rouge, LA, Earl Taylor, District Attorney, Twenty-Seventh Judicial District, Jennifer M. Ardoin, Assistant District Attorney, Twenty-Seventh Judicial District, Opelousas, LA, for Appellant, State of Louisiana.
    Edward J. Marquet, Louisiana Appellant Project, Lafayette, LA, for Defendant/Appellee, Robert Lee Heard, Jr.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and DAVID KENT SAVOIE, Judges.
   PETERS, J.

|)The State of Louisiana appeals the trial court’s grant of a motion to quash the grand jury indictment filed against Robert Lee Heard, Jr., in which the trial court found that La.R.S. 14:30(A)(11) is unconstitutionally vague as applied to the defendant. For the following reasons, we reverse the trial court’s judgment and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On November 20, 2012, the St. Landry Parish Grand Jury returned a true bill of indictment against Robert Lee Heard, Jr. (hereinafter referred to as “the defendant”), charging him with first degree murder, a violation of La.R.S. 14:30. Specifically, the indictment charged that “[o]n or about September, 14, 2012,” the defendant “did commit first degree murder of Demetra Doyle, in violation of La.R.S. 14:30[.]” The defendant entered a plea of not guilty to the offense on January 24, 2013, and slightly over a month later, the State of Louisiana (herein after referred to as “state”) informed the defendant and the trial court that it would not pursue the death penalty in its prosecution efforts.

On November 25, 2013, the defendant filed a motion to quash the indictment based on the argument that it was “defective because it fails to set out any underlying enumerated offenses the [sic] must be present in order for a defendant to be charged with FIRST DEGREE MURDER.” Sometime thereafter, the state informed the defendant that the prosecution would be pursuant to La.R.S. 14:30(A)(11), which provides:

First degree murder is the killing of a human being:
la(ll) When the offender has a specific intent to kill or inflict great bodily harm and the offender has previously acted with a specific intent to kill or inflict great bodily harm that resulted in the killing of one or more persons.

At the April 10, 2015 hearing on the motion to quash, the defendant acknowledged that the state had informed him of the applicable provision of La.R.S. 14:30. He stated that he now intended to challenge the prosecution based on La.R.S. 14:30(A)(11) being unconstitutionally over-broad and vague; and based on the use of a juvenile’s record as the aggravating circumstance. The state responded to the latter statement by informing the defendant and the trial court that it did not intend to use the defendant’s juvenile record against him. Instead, it stated that it intended to present live testimony to establish the prior act required under La. R.S. 14:30(A)(11).

Thereafter, on April 22, 2015, the defendant filed a second motion to quash the indictment, this time asserting that the indictment should be quashed because La. R.S. 14:30(A)(11) is “unconstitutionally vague and/or overbroad.” After a July 13, 2015 hearing, the trial court provided extensive oral reasons for granting the motion to quash the indictment. On July 21, 2015, the trial court supplemented its oral reasons with written reasons, wherein it concluded “that Louisiana Revised Statute 14:30 A.(11) is unconstitutional as applied to this defendant, Robert Lee Heard, Jr.” However, the written reasons did not expand on the oral reasons previously rendered. Instead, the trial court incorporated the oral reasons of July 13, 2015, into its written reasons by attaching a copy of those reasons to the written reasons.

The state timely appealed the ruling, and in its appeal, asserted two assignments of error, worded as follows:

1) Was the Defendant’s constitutional claim in his Motion to Quash sufficiently particularized in that written pleading? The trial |scourt erred by granting Defendant’s Motion to Quash because the unconstitutionality of the statute was not properly particularized in the written Motion to Quash. Additionally, the trial court granted the Motion to Quash on a ground not specified in the Motion.
2) Did the trial court err in finding La. R.S. 14:30(A)(11) vague as applied to a defendant who killed another person when he was a juvenile? The trial court erred in finding that La. R.S. 14:30(A)(11), specifically the word “killing,” is unconstitutionally vague as applied to a defendant who killed another person as a juvenile.

OPINION

Jurisdictional Statement

While La.Code Crim.P. art. 912(B)(1) provides that the state may appeal a judgment or ruling on a motion to quash to the proper appellate court, La. Const, art. 5, § 5(D) provides that in a case where a law or ordinance has been declared unconstitutional, that “case shall be appealable to the supreme court[.]” However, where the law or ordinance is declared unconstitutional as applied rather than unconstitutional on its face, an appeal to the appellate court rather than the supreme court is proper. See State v. Trosclair, 11-2302 (La.5/8/12), 89 So.3d 340. Thus, we find the state’s appeal to this court to be proper.

Assignments of Error

While the state’s brief asserts only two assignments of error, the argument on those assignments of error is divided into several subsections. In reversing the trial court ruling that La.R.S. 14:30(A)(11) is unconstitutional as applied to the defendant, we need only consider the first of these several subsections.

Failure to Particularize the Vagueness Claim in the Motion to Quash

The defendant’s April 22, 2015 motion to quash reads as follows:

This statute is unconstitutionally vague and/or overbroad in violation of the defendant’s constitutional right to due process under the law as guaranteed by the Fifth and Fourteenth Amendments, as well as jury trial guarantees of the Sixth Amendment to the United States’ (sic] Constitution. The statute is overbroad in that it makes no ^distinction regarding the circumstances giving rise to the previous killing. Specifically, it would include previous killings by police officers in the course of their lawful duties, soldiers in combat, killings considered to be justifiable homicide; or, specifically, it gives no consideration as to the age of the defendant at the time of the previous killing.
Additionally, it is anticipated the State will argue that it has a right to present live testimony that Mr. Heard had killed a person prior to the killing he is accused of in this case. The defendant asserts that the State is attempting to circumvent the protections that were afforded to him as a juvenile. La Ch.C. Art. 412 contains provisions for maintaining the Confidentiality of juvenile records. La. C.E. Art. 609.1 F bars the use of evidence of juvenile adjudications of delinquency to attack the credibility of a witness, (except for use in proceedings brought pursuant to the habitual offender law, R.S. 15:529.1 which has been found to be unconstitutional by the Louisiana Supreme Court in State v. Brown, No. 2003-K-2788, 879 So.2d 1276, (7/6/04)). Furthermore, the live testimony the State intends to introduce was derived from the adjudication proceedings obtained from the State of California; and, therefore the testimony should be disallowed by the Court. If the State is allowed to introduce live testimony of the previous killing, the defendant will be required to defend himself against to [sic] separate and distinct alleged act [sic].

The defendant ended the motion to quash with the following prayer for relief:

WHEREFORE, mover prays that his MOTION TO QUASH THE INDICTMENT ON THE GROUNDS THAT LA.R.S. 14:30 A. (11) IS UNCONSTITUTIONALLY VAGUE AND/OR OVERBROAD be deemed good and sufficient; and, after due proceedings this Court should declare the statute unconstitutional; and, that any evidence of a prior killing, sought to be introduced by use of live testimony by the District Attorney in this matter, be ordered suppressed in its entirety; and, that the State be prohibited from introducing same or making reference to any and all such evidence during the course of the [t]rial of this matter.

The trial court obviously found that both the vagueness and overbroad issues were sufficiently particularized, as it ultimately ruled on both issues. With regard to the overbroad issue, the trial court rejected the defendant’s police and military examples, as well as his argument on that point. The defendant did not appeal the trial court’s ruling on this constitutional argument and, therefore, that issue is not |fibefore us. The remaining issue is whether the vagueness claim was sufficiently particularized for the trial court to grant the relief as it did.

At the hearing on the motion to quash, and in his responsive brief to this court, the defendant intertwined his arguments that La.R.S.14:30(A)(11) is unconstitutional with his argument that evidence of the prior killing should be excluded based on statutory grounds. However, the trial court did not address these statutory grounds in rendering its ruling that La. R.S. 14:30(A)(11) was unconstitutional and, therefore, any argument that the previous killing should be excluded on statutory grounds is not properly before us.

The state’s focus at the hearing on the motion was that the jury needed to know of the defendant’s violent propensities and the fact that he had killed or attempted to kill in the past. That, according to the state, was why La.R.S. 14:30(A)(11) was enacted, and it argues that the prejudice to the defendant in introducing the killing in California is outweighed by the probative value of that evidence. While asserting that there exists no statutory authority for excluding the California juvenile adjudication, the state argued that the introduction of the adjudication would not be an issue in this prosecution because it had no intention of introducing the adjudication. Instead, the state asserted that it planned to use an eyewitness to the California killing to establish the aggravating circumstances element of La.R.S. 14:30(A)(11). The state asserted that any issues raised by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), should not be an issue in the prosecution, because once the death penalty was taken off the table, the | ^sentence for first and second degree murder was the same-life at hard labor without the benefit of probation, parole, or suspension of sentence. La.R.S. 14:30(0(2); La. R.S. 14:30.1(B). The state argued to the trial court that a statute is presumed to be constitutional, and in this case, the legislative intent in enacting La.R.S. 14:30(A)(11) was obviously “to look at somebody with dangerous propensities.”

The trial court found La.R.S. 14:30(A)(11) unconstitutionally vague for a number of reasons. First, the trial court concluded that when the legislature amended La.R.S. 14:30(A) to add section 11, it did so to address serial killer prosecution. Specifically, the trial court asserted that its understanding of the legislative action was “based on situations where we have multiple deaths and there’s some connexity in the form of either a modus opencindi, maybe a particular type of victim, maybe a particular method of killing, but it’s to get those separate offenses tied together[.]” The matter before us, by the trial court’s analysis, was not that type of case.

Second, the trial court compared La.R.S. 14:30(A)(11) to similar statutes in other states and found the other state statutes “were more specific than the Louisiana statute in that they seem to require a conviction or at least a murder[.]” That being the case, the trial court reasoned, La.R.S. 14:30(A)(11) does not reach that degree of specificity.

Next, the trial court found problems with the application of La.R.S. 14:30(A)(11) where the previous killing was a juvenile act, particularly in this case where there is no evidence of the defendant having been given his rights in the prior proceeding pursuant to Boykin, 395 U.S. 238, 89 S.Ct. 1709. Further, the trial court seemed to be concerned that La.R.S. 14:30(A)(11) did not sufficiently differentiate between an adult offender and a juvenile offender. In making this point, the trial court quoted Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2467, 183 L.Ed.2d 407 (2012).

In furtherance of its position concerning whether a juvenile should be subject to the provisions of La.R.S. 14:30(A)(11), the trial court also concluded that the statute was vague as applied to the defendant because the trial court had no information before it to determine whether the prior prosecution was a juvenile adjudication or a conviction. Without that information, the trial court reasoned it could not be determined whether the legislature intended to take such a scenario into consideration, The trial court suggested that this lack of information “presents a dilemma for this court as to how this trial is going to go and how we have to instruct the jury.”

Next, the trial court determined that problems existed with the application of La.R.S. 14:30(A)(11) to the defendant because the statute does not specify a time limit associated with the previous killing as do other states’ statutes. The trial court concluded that “it just doesn’t seem right to be able to go back as far as the |sState is attempting to go back in this case, particularly when you cross back over into that juvenile area. It seems there should be a limit.” Without such limits, the trial court concluded, La.R.S. 14:30(A)(11) is unconstitutional as applied ;to the defendant.

The trial court also concluded that the application of La.R.S. 14:30(A)(11) to the defendant would circumvent other eviden-tiary rules that would otherwise protect him. The trial court concluded that the legislature essentially created an exception to La.Code Evid. art. 404(B) by eliminating the balancing test of prejudicial effect versus probative value found under that article. While asserting that in enacting La.R.S. 14:30(A)(11), the legislature left the trial court without sufficient guidance as to how to proceed, the trial court still asserted that “the basis of my ruling is more the fact that I find it is vague as applied to this defendant because of the problems with the fact that the predicate, or the aggravating circumstance, was a juvenile act.” The trial court reached this conclusion by relying primarily on the supreme court’s ruling in State v. Brown, 03-2788 (La.7/6/04), 879 So.2d 1276, cert. denied, 543 U.S. 1177, 125 S.Ct. 1310, 161 L.Ed.2d 161 (2005), which it quoted as “[t]he provision in the habitual offender law that qualified prior adjudication of delinquency as the predicate offense for purposes of enhancing subsequent offenses was unconstitutional as applied.” If a prior delinquent adjudication could not be used for the purposes of the habitual offender law, La.R.S. 15:529.1, the trial court reasoned it could not be used to support a conviction under La.R.S. 14:30(A)(11).

Notwithstanding the trial court’s extensive reasoning, on appeal the state asserts that the trial court erred in finding La.R.S. 14:30(A)(11) unconstitutional 19because none of the reasons relied upon by the trial court were sufficiently particularized by the defendant in his motion to quash. The need for particularization was set forth by the supreme court in State v. Hatton, 07-2377, pp. 13-16 (La.7/1/08), 985 So.2d 709, 718-20, (footnotes omitted) (citations omitted), as follows:

As an initial matter, before determining whether the trial court was correct in granting defendant’s Motion to Quash and declaring La. R.S. 14:81.3(C)(3) unconstitutional, we must first decide whether the issue of constitutionality was properly raised below. It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. Although this court generally possesses the power and authority to decide the constitutionality of the provisions challenged in a defendant’s motion to quash, it is not required to decide a constitutional issue unless the procedural posture demands that it do so. A corollary of these principles is that courts are generally reluctant to address the constitutionality of legislation unless required by the particular case and issue before them.
Statutes are generally presumed to be constitutional and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. Unlike the federal constitution, a state constitution’s provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people of a state, exercised through its legislature. Therefore, the legislature may enact any legislation the state constitution does not prohibit. Moreover, this Court has consistently held that legislative enactments are presumed valid and their constitutionality should be upheld when possible. Accordingly, as a result of this presumption, if a party wishes to challenge the constitutionality of a statute, the pai’ty must do so properly. We now consider the proper procedure for challenging the constitutionality of a statute.
While there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. This Court has expressed the challenger’s burden as a three step analysis. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. The opportunity to fully brief and argue the constitutional issues provides the trial court with thoughtful and complete arguments relating to the | tissue of constitutionality and furnishes reviewing courts with an adequate record upon which to consider the constitutionality of the statute.
The final step of the analysis articulated above requires that the grounds outlining the basis of the unconstitutionality be particularized. This Court has thoroughly considered the standard for particularizing the constitutional grounds. The purpose of particularizing the constitutional grounds is so that the adjudicating court can analyze and interpret the language of the constitutional provision specified by- the challenger. This basic principle dictates that the party challenging the constitutionality of a statute must cite to the specific provisions of the constitution which prohibits the action.
In addition to the three step analysis for challenging the constitutionality of a statute, the specific plea of unconstitutionality and the grounds therefor must be raised in a pleading.
Thus, in light of the foregoing jurisprudential rules, in order to properly confect a constitutional challenge, a party must raise the constitutional issue in the trial court by raising the unconstitutionality and the grounds outlining the basis of the alleged unconstitutionality in a pleading. With these principles in mind, we consider each step of the three part analysis separately under the circumstances presented by the matter before us.

Addressing the specifics of the Hatton defendant, the supreme court found that he satisfied the first two steps of the analysis by setting forth his constitutional challenge in his motion to quash filed in the trial court; and that he satisfied the third requirement (particularizing the grounds that are the basis of the unconstitutionality claim) as to two constitutional grounds, but that the trial court ruled the statute unconstitutional based on grounds not raised by him. Noting that the purpose of the three-step analysis is to give the parties an opportunity to brief and argue the constitutional grounds and to prepare an adequate record for review, the supreme court found that these purposes are not satisfied when a trial court relies on grounds not properly raised by the party challenging the constitutionality. Id.

Further, we note that this situation is similar to those instances in which a trial court sua sponte declares a statute unconstitutional when its unconstitutionality has not been placed at issue by one of the lnparties in a pleading. A judge’s sua sponte declaration of unconstitutionality is a derogation of the strong presumption of constitutionality accorded legislative enactments. In the instant matter, the trial court’s basis for its ruling was on constitutional grounds not before it and, similar to those instances in which a trial court sua sponte rules on a constitutional issue not raised by the parties, such ruling is improper.

Id. at 721 (citations omitted).

Finally, the supreme court in Hatton found that additional grounds raised by the defendant in a supplemental memorandum should not have been considered by the trial court since a memorandum does not constitute a pleading.

Subsequently, in State v. Overstreet, 12-1854 (La.3/19/13), 111 So.3d 308, the supreme court discussed the Hatton three-step analysis and concluded that the defendant in that case failed to sufficiently particularize any basis for finding the statutes at issue unconstitutional. The defendant challenged the constitutionality of certain aspects of the Louisiana sex-offender registration statutes based on the argument that his underlying plea was not guilty by reason of insanity and, therefore, he was not a convicted sex offender. In raising his claim of unconstitutionality of the requirement that he register as a sex offender, and in attempting to particularize his claim, the defendant asserted that:

[T]he provisions of R.S. 15:541(7) and R.S. 15:542, as applied, are unconstitutional and violate the United States Constitution, Fourteenth Amendment (Due Process of Law and Equal Protection of the Law) and also violate the Louisiana State Constitution, Article I, Sections 2, 3, 5, 20, and 24 (Due Process of Law, Equal Protection and Individual Dignity, Right to Privacy, Right to Humane Treatment and Other Unenumerated Rights).

Id. at 310.

The trial court found that the statutes unreasonably applied to persons who were found not guilty by reason of insanity and, therefore, violated the defendant’s 1 frights to individual dignity and humane treatment under La. Const, art 1, §§ 2 and 20.

The state in Overstreet argued that the defendant insufficiently particularized the grounds of his constitutional claim by presenting no argument in his original motion and by providing only citations to constitutional provisions. The supreme court agreed:

At best, respondent merely claimed the law was “arbitrary, capricious and makes no sense” because he was not convicted of a crime, but instead pled not guilty by reason of insanity. He seemed to be claiming an equal protection violation, but never explained the basis of that claimed violation. As a result of this lack of particularization, the state was afforded insufficient opportunity to brief and argue in response.

Id. at 816-17 (footnote omitted).

Ultimately, the supreme court found that the trial court’s ruling was based on constitutional grounds not properly raised by the defendant, and accordingly it reversed the trial court’s decision. Id.

In the present case, the state asserts that like in Hatton and Overstreet, the trial court relied on grounds not particularized by the defendant in finding La. R.S. 14:30(A)(11) unconstitutionally vague as applied to the defendant. We agree.

The defendant’s sole claim of unconstitutionality for vagueness is set forth in the first sentence of his motion to quash, which states that “[t]his statute is unconstitutionally vague and/or overbroad in violation of the defendant’s constitutional right to due process under the law as guaranteed by the Fifth and Fourteenth Amendments, as well as jury trial guarantees of the Sixth Amendment to the United States’ [sic] Constitution.” Not only does this sentence not particularize the reasons for the constitutional argument of vagueness, but it does not even particularize which constitutional protection applies to which argument, vagueness versus over breadth. Additionally, while the defendant also asserts that 113he sufficiently particularized the vagueness issue through aggressive argument at the hearing on the motion, we are reminded of the holding in Hatton, which held that the grounds for a constitutional attack on a statute must be raised in the motion to quash and cannot be raised for the first time in argument.

Because none of the grounds upon which the trial court relied to find La.R.S. 14:30(A)(11) unconstitutionally vague as applied to the defendant were particularized by the defendant in his motion to quash, the trial court erred in reaching the constitutional issue on those grounds. Thus, we find that the trial court erred in declaring La.R.S. 14:30(A)(11) unconstitutional as applied to the defendant for the reasons stated.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment declaring La.R.S. 14:30(A)(11) unconstitutional as applied to Robert Lee Heard, Jr. and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Louisiana Revised Statutes 14:30(A) contains twelve numbered paragraphs that set forth the manner in which first degree murder can be committed, and the indictment filed against the defendant did not designate the paragraph at issue in this offense.

      . While the statutory defenses were not made a part of the motion to quash, the defendant’s counsel referenced them at the beginning of his argument at the hearing on the motion by referring to a memorandum on those issues he had submitted on July 13, 2015. That memorandum, which the trial court allowed to be introduced into the record, did not discuss the constitutionality of La.R.S. 14:30(A)(11). Instead, it presented the argument that a killing that occurs when a defendant is a juvenile cannot be the underlying killing referenced in La.R.S. 14:30(A)(11), because a minor cannot be held fully responsible for the consequences of his immaturity and because the statute was intended to apply to closely related murders.

      . The trial court quoted Miller v. Alabama, 567 U.S. 460, 132 S.Ct, 2455, 2467, 183 L.Ed.2d 407 (2012), however the quote should properly have read:
      Of special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the "mitigating qualities of youth.” Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Everything we said in Roper [v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)] and Graham [v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ] about that stage of life also appears in these decisions. As we observed, "youth is more than a chronological fact.” Eddings [v. Oklahoma], 455 U.S. [104, 115], 102 S.Ct. 869 [71 L.Ed.2d 1 (1982)]. It is a time of immaturity, irresponsibility, "impetuousness[,] and recklessness.” Johnson, 509 U.S., at 368, 113 S.Ct. 2658, 125 L.Ed.2d 290. It is a moment and "condition of life when a person may be most susceptible to influence and to psychological damage.” Eddings, 455 U.S., at 115, 102 S.Ct. 869. And its "signature qualities” are all "transient.” Johnson, 509 U.S., at 368, 113 S.Ct. 2658. Eddings is especially on point. There, a 16-year-old shot a police officer point-blank and killed him. We invalidated his death sentence because the judge did not consider evidence of his neglectful and violent family background (including his mother’s drug abuse and his father’s physical abuse) and his emotional disturbance. We found that evidence "particularly relevant”—more so than it would have been in the case of an adult offender. 455 U.S., at 115, 102 S.Ct. 869. We held: "[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered” in assessing his culpability. Id. at 116, 102 S.Ct. 869.

      . The language quoted by the trial court is actually from a Westlaw synopsis of the case, not language located in the actual opinion.


author: GENOVESE, Judge.

text:
    Victoria DAUZAT, et al. v. DOLGENCORP, LLC, et al.
    No. 15-1096.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2016.

      Peter J. Wanek, Trevor G. Davies, Lou Anne Milliman, McCranie, Sistrunk, Anzel-mo, Hardy, McDaniel & Welch, LLC, New Orleans, LA, for Defendants/Appellants, DG Louisiana, LLC and Amanda Poarch.
    Laura Bishop Knoll, Jerold Edward Knoll, The Knoll Law Firm, LLC, Marks-ville, Louisiana, for Plaintiffs/Appellees, Victoria Dauzat and Phyllis Jeansonne.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¶ Defendants/Appellants, DG Louisiana, LLC, doing business as Dollar General (hereafter Dollar General), and Amanda Poarch, suspensively appeal an adverse judgment following a bench trial on Plaintiffs’ claims of defamation and false imprisonment. The trial court awarded $20,000 in general damages to each Plaintiff. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 14, 2014, Plaintiffs, Victoria Dauzat and Phyllis Jeansonne, claimed to have been wrongly accused of shoplifting at a Dollar General store located in Marks-ville, Louisiana. On October 6, 2014, Plaintiffs filed suit against Dollar General and Ms. Poarch, the employee who accused Plaintiffs of shoplifting. Plaintiffs sought damages for defamation and false arrest. Defendants answered the petition, denying all allegations and asserting immunity for reporting possible criminal activity.

A bench trial was held on June 24,2015. At the close of Plaintiffs’ ease-in-chief, Defendants moved for an involuntary dismissal. The trial court took | ¿the matter under advisement with post-trial memoranda submitted by the parties. On August 5, 2015, the trial court rendered lengthy written Reasons for Judgment. In that judgment, the trial court denied Defendants’ motion for involuntary Isdismissal and found that Defendants had defamed and falsely imprisoned Plaintiffs and set their general damages at $20,000 each. Judgment was signed August 26, 2015. Defendants have filed a suspensive appeal.

ASSIGNMENTS OF ERROR

Defendants submit the following errors for our review:

1. The trial court erred in finding Dollar General and [Ms.] Poarch liable for defamation, because merchants are entitled to immunity from suit for reporting a suspected crime to police, and there is no evidence that Ms. Poarch’s statements to police were made with malice or reckless indifference as to their truth or falsity. There also is no evidence that the report was communicated to anyone other than police.
2. The trial court erred in finding [Defendants] liable for false imprisonment, because no Dollar General employees ever touched [Ms.] Dau-zat or [Ms.] Jeansonne, told them they could not leave, or blocked them from leaving the store.
3. The trial court erred in applying an evidentiary presumption in favor of [Plaintiffs due to missing video footage, where there was no evidence that the evidence was intentionally destroyed in order to deprive them of its use.
4. There was no evidence of damage, or, in the alternative, trial court’s award of $20,000 to each [P]laintiff ■was excessive, where [there is] no evidence that the detention or defamation harmed their reputations or adversely affected their lives or health.

STANDARD OF REVIEW

The standard of review we are bound to employ was recently reiterated by this court in Dietz v. Dietz, 14-1164, pp. 19-20 (La.App. 3 Cir. 5/6/15), 165 So.3d 342, 357-58, writ denied, 15-1504 (La.10/23/15), 179 So.3d 604:

It is well settled that a trial court’s findings of fact are reviewed on appeal pursuant to the manifest error—clearly wrong standard of review. Snider v. La. Med. Mut. Ins. Co., 13-579 (La.12/10/13), 130 So.3d 922.
Under the manifest error standard of review, a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). There is a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the issue to be resolved by a reviewing court is not whether the trier-of-fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.
Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.
Id. at 938.

See also Purvis v. Grant Parish Sch. Bd., 13-1424 (La.2/14/14), 144 So.3d 922. Therefore, it is our function to apply the manifest error standard of review to the factual findings of the trial court. In order to reverse the trial court, we must find that no reasonable factual basis exists for its findings on the entire record, and also that based on the record, those findings were manifestly erroneous.

ASSIGNMENT OF ERROR NUMBER ONE

The first assignment of error relates to the finding of fault for defamation. Defendants argue that Ms. Poarch’s statements were protected by a qualified privilege, were not made with malice or reckless indifference, and were not communicated to anyone other than the police.

Plaintiffs contend that the trial court rightly concluded that Ms. Poarch’s report to the police was a complete fabrication; thus, her statements were not protected by any privilege. Plaintiffs argue that the indisputable security camera |Kvideo supports the trial court’s finding that Ms. Poarch defamed Plaintiffs when she reported seeing something she could not have seen and, thus, recklessly disregarded the truth. Plaintiffs contend that because other shoppers witnessed them being questioned and because one of the police officers reported their names and the reason they were being investigated over his radio, members of their tight-knit community overheard details via in-home police scanners. • As a result of their ordeal, Plaintiffs testified that they suffered great anguish from the gossip which reached members of their workplace and their church.

Defamation claims require proof of “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 4 (La.7/10/06), 935 So.2d 669, 674 (citing Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129). Jurisprudence generally refers to fault “as malice, actual or implied.” Id. Words which are defamatory are either “defamatory per se and those that are susceptible of a defamatory meaning.” Id. at 675. Words are considered defamatory per se when they “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or cir-cumstancesf.]” Id.

When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Costello, 03-1146 at 14, 864 So.2d at 140. Injury may also be presumed. Id. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Id.

Id.

[T]he effect of the assertion of the conditional or qualified privilege is to rebut the plaintiffs allegations of fault and shift the burden to plaintiff to establish abuse of the privilege. Smith [v. Our Lady of the Lake Hasp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.] In other | ¿words, once the privilege is established, it becomes incumbent on the plaintiff to come forward with rebuttal evidence establishing abuse.

Id. at 687.

Included in Plaintiffs’ evidence was surveillance video of Ms. Poarch observing Plaintiffs before she called the police. Plaintiffs argued against the application of a privilege on the basis that Ms. Poarch alerted the police knowing her statements were false. The trial court agreed declaring: “There is no evidence whatsoever on the surveillance video to implicate [PJlain-tiffs with the illegal activity of theft of goods.” The trial court decided that Ms. Poarch’s statements were defamatory per se and that it was her intent to cause Plaintiffs’ damage. The burden then shifted to Defendants to rebut this presumption, and Defendants clearly failed in that effort. Ms. Poarch did not even appear at trial, and Defendants presented no evidence whatsoever.

After thoroughly reviewing the evidence in the record, being mindful of the standard of review, we find that the factual conclusions that Plaintiffs proved their claim of defamation are reasonably supported by the evidence. Plaintiffs’ testimonies were deemed veracious and accepted by the trial court. Thus, we find no manifest error in the trial court’s factual findings relative to the defamation cause of action and find no merit in Defendants’ assignment of error addressing this cause of action.

ASSIGNMENT OF ERROR NUMBER TWO

The second assignment of error relates to the finding of fault for false imprisonment. Defendants argue that the evidence is insufficient to prove false imprisonment because Plaintiffs were not touched or blocked from leaving by Defendants. Further, Defendants argue that the trial court was in error in rejecting |7its argument that Kennedy, 935 So.2d 669, is factually analogous and legally applicable to defeat Plaintiffs’ false imprisonment cause of action.

Plaintiffs contend that the trial court rightly rejected Defendants’ arguments and, instead, applied Thomas v. Schwegmann Giant Supermarket, Inc., 561 So.2d 992 (La.App. 4 Cir.1990), to the facts herein. Plaintiffs cite the application of La. Code Crim.P. art. 215(A)(1) in Thomas, 561 So.2d 992, as the defining differentiation between the instant case and Kennedy, 935 So.2d 669. Plaintiffs contend that the trial court was correct in finding that the evidence did not show that Ms. Poarch had reasonable cause to report a theft in progress, thereby effectuating Plaintiffs’ detention. We agree.

False imprisonment claims require proof of: “(1) detention of the person; and (2) the unlawfulness of the detention.” Kennedy, 935 So.2d at 690 (citing Tabora v. City of Kenner, 94-613 (La.App. 5 Cir. 1/18/95), 650 So.2d 319, writ denied, 95-402 (La.3/30/95), 651 So.2d 843). “[T]he tort of false imprisonment ] occurs when one arrests and restrains another against his will and without statutory authority.” Id. (citing Kyle v. City of New Orleans, 353 So.2d 969 (La.1977)).

Relative to Plaintiffs’ false imprisonment claims, the trial court’s written Reasons for Judgment state, in pertinent part:

The facts of the Kennedy case are clearly distinguishable from the instant case. In the case at bar, the wrongful detention of [Plaintiffs occurred in response to baseless allegations of theft made by Amanda Poarch, an employee of [Defendant, DG Louisiana, LLC. Law enforcement officers would not have been at [t]he Dollar General |sStore concerned[ ] but for the call made by Amanda Poarch. The detention that occurred in these proceedings happened at [t]he Dollar General Store. The unlawful detention was precipitated by the reckless actions of Amanda Poarch when she reported the alleged shoplifting/theft to authorities without any evidence to support such charges. On the other hand, the Kennedy case involves a justified call to police; the case at bar involves a baseless call to police of allegations unsupported by evidence. Not only did Amanda Poarch make a baseless report to law enforcement officers, but the record of the case reflects an absolute untruth from her mouth when she yelled out the following in the presence of customers to the [Pjlaintiffs as they were departing the store after exoneration: “I am not the one that called the cops.”

We find the trial court’s discussion of Kennedy, 935 So.2d 669, to be accurate and its reliance upon Thomas, 561 So.2d 992, and its application of La.Code Crim.P. art. 215(A)(1) to the matter herein to be appropriate.

After thoroughly reviewing the record, we find that the evidence supports the trial court’s ruling. Plaintiffs were the only witnesses to testify at the trial of this matter and to present evidence. Defendants only rebutted with argument. As evinced by the detailed written Reasons for Judgment, the trial court assessed Plaintiffs’ truthfulness and candor. The trial court was in the position of directly hearing all of the evidence, and it made factual findings based upon the evidence and credibility determinations. Strict deference is given to a trial court’s credibility determinations. Melder v. Brookshire’s Grocery Co., 14-669 (La.App. 3 Cir. 12/10/14), 154 So.3d 781. The trial court’s reliance on Plaintiffs’ testimonies is certainly reasonable and justified and in accordance with the rule relative to two permissible views of the evidence. The trial court’s choice between two permissible views of the evidence can never be manifestly erroneous. Sharbeno v. Allstate Ins. Co., 14-670 (La.App. 3 Cir. 12/10/14), 153 So.3d 576. Therefore, we find the trial court’s conclusions reasonable. At the very least, the trial court’s conclusions were based on a permissible view of the evidence. We find that a reasonable factual basis exists in the evidence before the trial court, and, although |9one may view these facts differently, the trial could was not clearly wrong. Therefore, we must not substitute our view of the evidence for that of the factfinder. See Purvis, 144 So.3d 922.

ASSIGNMENT OF ERROR NUMBER THREE

In the third assignment of error, Defendants assert that the trial court erred by imposing an adverse presumption for spoliating evidence. On appeal, Defendants dispute Plaintiffs’ entitlement to an adverse presumption under the theory of spoliation of evidence claiming:

The store’s CCTV system retains footage for approximately one and a half months and then footage is automatically recorded over. Before ..: receiving] [Plaintiffs’ discovery requests in November 2014, the footage was automatically recorded over. Defendants would have likely benefitted from the surveillance footage had it been available at the time the lawsuit commended. Thus, [Plaintiffs were not entitled to an adverse presumption under the theory of spoliation of evidence.

Defendants argue that Plaintiffs were not entitled to a presumption in their favor because there was no evidence that the subject video footage was intentionally destroyed for the purpose of depriving Plaintiffs of its use at trial.

“Louisiana jurisprudence holds that when a litigant destroys, conceals, or fails to produce evidence within his or her control, it gives rise to an adverse presumption that had the evidence been produced, it would have been detrimental to the litigant’s case.” Allstate Ins. Co. v. Ford Motor Co., 00-710, p. 4 (La.App. 3 Cir. 11/2/00), 772 So.2d 339, 342. “The appellate standard of review for a trial court’s evidentiary ruling on [the] issue [of spoliation] is whether the trial court abused its broad discretion.” Carter v. Hi Nabor Super Market, 13-529, p. 9 (La. App. 1 Cir. 12/30/14), 168 So.3d 698, 704-05, writ denied, 15-190 (La.4/17/15), 168 So.3d 399.

|1ftAt trial, Plaintiffs presented evidence suggestive of the fact that Defendants allowed for spoliation of video evidence. Defendants failed to presérve video camera footage after 3:00 p.m.; thus, Plaintiffs contend that this constituted spoliation of the evidence.

The trial court made its pronouncement relative to spoliation of evidence within the context of its ruling on Plaintiffs’ false imprisonment claims:

[Defendant, [Dollar General] knowledge of the pending claims, failed to preserve the surveillance video reflecting the events that unfolded after 12:31 o’clock p.m. on the day in question. It is this unexplained spoliation of evidence (i.e. the destruction of surveillance video depicting events occurring after 12:31 o’clock p.m.), coupled with the fact that Amanda Poarch failed to appear at trial to explain and/or justify the 911 call made by her that causes great concern to the trial court.

The record reflects that Defendants acknowledge receipt of Plaintiffs’ letter dated April 15, 2014, This letter requested a copy of the video camera’s surveillance footage from April 14, 2014. Defendants admitted that Plaintiffs were given a compact disc which contained footage from April 14, 2014; however, it was for a two and a half hour period not inclusive of 3:00 p.m. and what occurred afterwards. Defendants contend that the closed circuit television system retains footage for one and a half months, and, when Plaintiffs’ discovery requests were received in November 2015, the footage had been automatically recorded over.

Plaintiffs assert -that Defendants produced footage of only part of the incident in response to Plaintiffs’ request. According to Plaintiffs, because Defendants knew of their impending lawsuit and failed to produce video evidencing the entire time Plaintiffs were being interrogated, the application of the spoliation presumption against Defendants was warranted. We agree.

We find no abuse in the trial court’s broad discretion in applying the adverse evidentiary presumption under the theory of spoliation of evidence against | ^Defendants herein. The trial court’s ruling is based in part on the fact that Dollar General failed to preserve the surveillance video. The trial court was also critical of Ms. Poarch’s absence at trial. Given these circumstances, we do not find that the trial court abused its broad discretion in applying the presumption herein.

ASSIGNMENT OF ERROR NUMBER FOUR

In the fourth and final assignment of error, Defendants argue that the evidence fails to establish that Plaintiffs sustained any injuries. In the alternative, Defendants contend that the trial court’s general damage awards were excessive. We find no merit in either of these arguments.

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La.Civ.Code art. 2315(A). When assessing general damages, “much discretion must be left to the judge[.]” La.Civ.Code art. 2324.1. The role of an appellate court when reviewing general damage awards is to review the trial court’s exercise of discretion, it is not the role of an appellate court to decide what it considers to be an appropriate award. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Melder, 154 So.3d 781.

Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn, 623 So.2d at 1261, See also Jeansonne v. City of Marksville, 15-298 (La. App. 3 Cir. 11/25/15), 180 So.3d 608. Since the trial court is in the best position to evaluate witness credibility and see the evidence firsthand, it is afforded much discretion in independently assessing the facts and rendering an award. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693; McCarthy v. Entergy Gulf States, Inc., 11-600 (La.App. 3 Cir. 12/7/11), 82 So.3d 336, writ denied, 12-72 (La.3/9/12), 84 So.3d 553.

The trial court articulated that the damages awarded to Ms. Dauzat and Ms. Jeansonne were for “injuries to reputation, personal humiliation, embarrassment, mental anguish and suffering.” The evidence reflects that Plaintiffs suffered overwhelming stress both during and after this incident. According to Plaintiffs, the experience continued long after the day of the incident due to gossip within their community. Plaintiffs described feelings of shame, anxiety, and anger. The trial court accepted Plaintiffs’ testimonies. We give deference to the trial court’s credibility assessment, and we find no merit in Defendants argument that Plaintiffs sustained no injury.

Finally, relative to the amount of the trial court’s awards, we cannot say-that under these facts, the trial court abused its vast discretion in awarding $20,000 to each Plaintiff. It is evident from its written Reasons for Judgment that the trial court made a thorough examination of relevant jurisprudence to establish reasonable awards for the injuries Plaintiffs suffered due to Defendants defamation and false imprisonment. We find no abuse of discretion in the amount of damages awarded by the trial court. Accordingly, the judgment of the trial court is affirmed in its entirety.

DECREE

For the foregoing reasons, we affirm the trial coui*t judgment in favor of Plaintiffs, Victoria Dauzat and Phyllis Jeansonne, and against Defendants, DG Louisiana, LLC, and Amanda Poarch. We assess all costs of this appeal to DG Louisiana, LLC, and Amanda Poarch.

AFFIRMED.

      . DG Louisiana, LLC, was incorrectly identified as Dolgencorp, LLC. Since the parties refer to this defendant as Dollar General, we will do likewise.

      . Plaintiffs are sisters.

      . Ms. Poarch did not appear at trial.

      . Louisiana Code of Civil Procedure Article 1672(B) governs a motion for involuntary dismissal:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
      We find it noteworthy that after Plaintiffs rested, counsel for Defendants declared, "I just have motions for involuntary dismissal. I can present those, I’m not going to present any evidence!)]” Trial ended after argument relative to the motion for involuntary dismissal.

      . The trial court paraphrased the evidence adduced at trial as follows, in pertinent part:
      As confirmed by security video footage from the store, both [P]laintiffs entered Dollar General at 11:49 o'clock a.m. and were initially looking at merchandise on a discount rack. Of particular importance is [Plaintiffs' trial testimonies that confirm the presence of shoppers in the store who[,] among others[,] were church members with [P]laintiff, Victoria Dauzat.
      The security camera footage is without question most probative in reconstructing the events at the Dollar General Store and confirms that Amanda Poarch, [DJefendant-[E]mployee for the Dollar General Store commenced observation of surveillance footage in the store's office at 11:56 o’clock a.m, on the day in question. Her call to police to report an alleged "theft in progress” was made shortly thereafter at 12:04 o’clock p.m. She advised law enforcement in this call that she was presently watching [P]laintiffs steal several items from the store.... However, at trial, a review of the security tape does not support a finding of any criminal activity of theft by either Victoria Dauzat or Phyllis Jeansonne. Further, from the surveillance video presented at trial, it is clear that [PJlaintiffs were asked to leave the check-out line by law enforcement officers at approximately 12:09 o’clock p.m. The trial evidence further supports a finding that the [P]laintiffs were then and there administered their Miranda rights by law enforcement..., The video evidence presented at trial further supports a finding that the questioning of both [PJlaintiffs continued in the office at the back of the store and lasted until 12:31 o'clock p.m.[,J at which time the security footage stops without explanation or documentation, Plaintiffs' testimonies contend that the questioning lasted for an extended period of time and much longer than one (1) hour; [DJefendants failed to produce video footage after 12:31 o’clock p.m. contending that it was not available and did not exist. In this regard, it must not be overlooked that video footage had been requested by [PJlaintiffs' counsel on April 15, 2014, one day after the incident ...; the preservation of the video security tapes were vital [to] the determination of legal issues pending before this [cjourt.
      Unique to this case and of concern to this trier of fact is that the detention of [PJlain-tiffs continued beyond this first round of questioning described above. Both [PJlain-tiffs were instructed to return to [tjhe Dollar General Store for further inquiiy into this matter at 3:00 o'clock p.m. on the same day. Plaintiffs' testimonies reflect that after leaving the Dollar General Store, they went immediately to the home of Phyllis Jean-sonne. Their trial testimonies recall the afternoon in question and confirm that neither [Ms.] Dauzat nor [Ms.] Jeansonne felt free and[,J despite their actual innocence, both feared the threat of imminent charges for a crime that they had not committed. Their trial testimonies support a finding that both were justifiably angry and humiliated at having to return to [tjhe Dollar General Store. Both [PJlaintiffs suffered stress, anxiety, and humiliation, not knowing what would ultimately happen to them relative to the baseless charges of theft. This [c]ourt is further convinced that both [P]laintiffs were humiliated, embarrassed and publicly shamed by tire events that occurred. Both were humiliated and concerned that others in their community had received word of the unfounded accusations of theft against them. Their trial testimonies further support a finding that their worst fears had become a reality as the rumors of theft had in fact reached the work place of Phyllis Jeansonne and the church of Victoria Dauzat. Both [Pjlaintiffs felt that their reputations were damaged.

      . Louisiana Code of Criminal Procedure Article 215(A)(1) provides:
      A peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time, not to exceed sixty minutes, unless it is reasonable under the circumstances that the person be de-tamed longer, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The merchant or his employee or agent may also detain such a person for arrest by a peace officer. The detention shall not constitute an arrest.