author: KEATY, Judge.

text:
    Betty REEDER v. HARDTNER MEDICAL CENTER
    17-1028
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Paul H. Benoist, Benoist Law Offices, 329 Market Street, Natchez, Mississippi 39120, (601) 445-4148, Counsel for Plaintiff/Appellant: Betty Reeder
    Walter S. Salley, J. Martin Lattier, Lunn, Irion, Salley, Carlisle & Gardner, Post Office Box 1534, Shreveport, Louisiana 71165-1534, (318) 222-0665, Counsel for Defendants/Appellees: Hardtner Medical Center HSLI
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and Kent D. Savoie, Judges.
   KEATY, Judge.

In this workers' compensation case, the employee appeals a judgment rendered by the workers' compensation judge (WCJ) finding that she forfeited her right to receive workers' compensation benefits by deliberately making false statements in order to obtain such benefits. For the following reasons, we affirm the WCJ's decision.

FACTS AND PROCEDURAL HISTORY

On January 12, 2013, while in the course and scope of her employment as a Certified Nursing Assistant (CNA) employed by Hardtner Medical Center (Hardtner), Betty Reeder (Reeder) injured herself when she tripped and fell on a wheelchair. Indemnity and medical benefits were paid by the Louisiana Hospital Association Workers' Compensation Interlocal Risk Management Agency through its agent, HSLI, from January 15, 2013 through August 8, 2014, at a weekly rate of $308.30, based upon an average weekly wage of $462.45. The total temporary disability benefits paid to Reeder equate to $23,959.36. HSLI also paid Reeder's medical bills pursuant to the Louisiana Workers' Compensation Act's (LWCA's) reimbursement rate for dates of medical services rendered from January 16, 2013 through August 5, 2014.

La.R.S. 23:1020.1 -1415. The total medical benefits paid by HSLI equate to $64,780.05. HSLI subsequently terminated Reeder's indemnity and medical benefits on August 8, 2014, alleging that she made misrepresentations concerning benefit payments in violation of La.R.S. 23:1208.

The matter proceeded to trial on December 2, 2016, wherein Hardtner moved for a directed verdict following completion of the presentation of the evidence by Reeder. The WCJ took Hardtner's motion under advisement, and Reeder thereafter put on four rebuttal witnesses. Following trial, Reeder filed a memorandum in opposition to the oral motion for directed verdict as being improper in a non-jury context. Hardtner responded by filing a written motion for involuntary dismissal. The WCJ issued its oral reasons for judgment and written judgment on January 17, 2017, and March 13, 2017, respectively, and found that Reeder forfeited her right to receive workers' compensation benefits by violating La.R.S. 23:1208. As a result, the WCJ denied Reeder's request for workers' compensation benefits and dismissed the matter with prejudice. From that decision, Reeder appeals.

On appeal, Reeder asserts the following assignments of error:

1. The trial court committed manifest legal error by granting an involuntary dismissal pursuant to La. Code Civ. P. art. 1672.B without evaluating all evidence presented by Claimant to determine whether Claimant proved her case by a preponderance of the evidence, or failed to carry her burden of proof.
2. The trial court committed manifest error of fact by finding that Claimant met each of the requirements of Resweber v. Haroil Constr. Co. , 94-2708 (La. 9/5/95), 660 So.2d 7. There is no evidence of willfulness in Claimant's statements by which she seeks to obtain workers' compensation benefits. The leap made by Hardtner and the trial court is unsupported if all of the evidence is considered, and even if incorrect statements were made by Claimant, they are unrelated to the work injury sustained on January 12, 2013 and are inconsequential.

STANDARD OF REVIEW

The standard of review applicable in workers' compensation cases was discussed by this court in Foster v. Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citations omitted), as follows: "Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." "The determination of coverage is a subjective one in that each case must be decided from all of its particular facts." Jackson v. Am. Ins. Co. , 404 So.2d 218, 220 (La.1981). Thus, "great deference is accorded to the [workers' compensation judge's] factual findings and reasonable evaluations of credibility." Garner v. Sheats & Frazier , 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61. "Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Vidrine v. La-Tex Rubber & Specialties, Inc. , 07-157, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 146, 149.

DISCUSSION

I. First Assignment of Error

In her first assignment of error, Reeder contends the WCJ committed manifest legal error by granting an involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B) without evaluating all of the evidence presented by her to determine whether she proved her case by a preponderance of the evidence or failed to carry her burden of proof.

An involuntary dismissal under La.Code Civ.P. art. 1672(B) provides:

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.

"Provided that the plaintiff has completed the presentation of his case, an involuntary dismissal may be granted in a workers' compensation case." Dick v. B & B Cut Stone Co., L.L.C. , 40,441, p. 5 (La.App. 2 Cir. 12/14/05), 917 So.2d 1191, 1194.

In this case, the transcript reveals that Reeder's counsel offered into evidence multiple exhibits which the WCJ admitted. The transcript further reveals that after Reeder's counsel completed the presentation of the case, the following colloquy occurred:

THE COURT: Call your next witness, Mr. Benoist.
MR. BENOIST: That's it. We rest.
THE COURT: Claimant rest[s]. Call your first witness, Mr. Salley.

Thereafter, Hardtner's counsel responded: "At this point in time I would like to request a directed verdict. Her testimony is certainly fraud." As noted above, the WCJ took Hardtner's motion for directed verdict under advisement, and Reeder put on rebuttal witnesses. After trial and the filing of post-trial motions and briefs, the WCJ denied Reeder's claim for benefits and dismissed the matter with prejudice based upon its finding that she violated La.R.S. 23:1208, which provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
....
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.

As shown in subsection two below, all of the elements required to prove a violation of La.R.S. 23:1208 were satisfied following Reeder's presentation of evidence at trial. Accordingly, we find that the WCJ did not manifestly err in granting Hardtner's involuntary dismissal. This assignment of error is without merit.

II. Second Assignment of Error

In her second assignment of error, Reeder contends the WCJ committed manifest error of fact by finding that she met each of the requirements of Resweber v. Haroil Construction Co. , 94-2708, 94-3138 (La. 9/5/95), 660 So.2d 7. Reeder opines that there lacks evidence of willfulness in her statements by which she seeks to obtain workers' compensation benefits. Reeder argues that the leap made by Hardtner and the WCJ is unsupported if all of the evidence is considered. Reeder notes that even if she made incorrect statements, such statements are inconsequential because they are unrelated to the work injury at issue.

The Louisiana Supreme Court in Resweber , 660 So.2d at 16, addressed the proof required to prove fraud under La.R.S. 23:1208 :

By its plain words, Section 1208 requires only that 1) the claimant make a false statement or representation, 2) the statement or representation be willfully made, and 3) the statement or representation be made for the purpose of obtaining workers' compensation benefits.
The legislature has made a policy decision that willful and deliberate false statements made specifically for the purpose of obtaining workers' compensation benefits is an attempt to defraud the workers' compensation system and should be dealt with harshly. The legislature has shown a continued effort over recent years to make Section 1208 easier to enforce and to make its penalties stronger.

The Resweber court noted that the false representations must be made for the purpose of obtaining benefits and must be more than inadvertent or inconsequential statements, by stating:

It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. The statute imposes no requirement that the employer show prejudice. Id.

A decision to impose or deny forfeiture under La.R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp. , 41,957 (La.App. 2 Cir. 3/7/07), 954 So.2d 207, writ denied , 07-720 (La. 5/18/07), 957 So.2d 155. To reverse a fact finder's determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the trial court's finding and (2) the court must determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the fact finder was right or wrong, but whether its conclusion was reasonable. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

In finding that Reeder committed fraud in this case, the WCJ stated the following in its reasons for judgment:

This Court is unable to find the statements made by claimant during her deposition testimony to be inconsequential. The false statements are simply too numerous. They deal directly with the exact physical complaints claimant seeks to contribute to her injury. This Court also notes claimant was a certified nursing assistant. Thus, she is aware or should have been aware of the meaning of medical terminology such as symptoms and pre-existing conditions when she was questioned concerning her medical history. This court cannot believe claimant was able to forget a medical history extending beyond a decade and full of similar complaints during those periods.
The extensive list of pre-existing conditions reflective in the medical records and the far reaching statements reflecting a denial of pre-existing conditions to claimant's healthcare providers leads this Court with no other alternative but to find that claimant has indeed committed fraud.

At this juncture, we must review the medical records, deposition testimony, and testimony presented at trial and submitted into evidence to determine whether the WCJ's ruling was manifestly erroneous. In that regard, Reeder's Disputed Claim for Compensation (LWCA Form 1008) along with her testimony indicate that she sustained the following injuries following her workplace accident: headaches, neck pain, back pain, and leg pain. Reeder testified that the only pre-existing conditions that she suffered from were depression, hypertension, short-leg syndrome, and migraine headaches. However, the medical records, deposition testimony, and trial testimony in the record reveal Reeder failed to mention multiple pre-existing conditions that she suffered from prior to the accident and which are the same conditions that she claims resulted from the accident at issue.

Specifically, medical records from Reeder's family physician, Dr. Joan Brunson, dated October 15, 2008, advise that Reeder was involved in a motor vehicle accident on July 28, 2008, and was experiencing chest wall pain. Dr. Brunson treated Reeder for right neck and arm pain on December 18, 2006; right shoulder pain and leg pain on October 20, 2009; left sided neck pain on August 4, 2011; mid back pain on September 14, 2011; arm pain, left shoulder pain, and low back pain on January 26, 2012; and low back pain and arm pain on March 30, 2012, and June 29, 2012. Medical records from LaSalle General Hospital dated October 2, 2009, reveal that Reeder underwent an x-ray of her right shoulder wherein no significant abnormalities were noted. A medical record dated August 16, 2010, from LaSalle General indicates that Reeder presented for headaches and noted a history of right shoulder pain. A LaSalle General medical record dated August 11, 2011, indicates that right shoulder pain was listed under Reeder's medical history. Reeder's own trial testimony further reveals that she presented to LaSalle General on November 26, 2004, with complaints of low back pain.

Medical records from Reeder's cardiologist, Dr. Naseem Jaffraini, indicate that she presented to him on August 30, 2010, with joint pain, stiffness, and leg pain which worsened when she walked. Reeder again presented to Dr. Jaffraini on September 27, 2010, with chest discomfort, radiating neck pain, leg pain, and joint stiffness in her knees and feet. Dr. Jaffraini's medical record dated June 3, 2011, indicate chest pain, leg pain, neck pain, joint pain, and back pain. On September 23, 2011, Dr. Jaffraini noted complaints of chest pain, leg pain, joint pain, and back pain. According to Dr. Jaffraini's medical record dated June 3, 2012, Reeder also complained of muscle pain and loss of balance.

Reeder also presented numerous times from June 3, 2002 through December 29, 2011, to her chiropractor, Dr. Charles Clauss. During Reeder's June 3, 2002 appointment, she filled out a cervical examination form wherein she complained of constant head and neck pain and placed a check mark next to the phrase "low back pain." Dr. Clauss, according to his medical records, performed adjustments to Reeder's cervical spine and thoracic spine on June 4, 2002. Reeder again presented to Dr. Clauss on March 24, 2003, for head and neck pain and adjustments were performed on her cervical and thoracic spine. Dr. Clauss's medical records show that he rendered treatment numerous times throughout 2003, 2004, and 2006. A medical record dated June 1, 2007, reveals treatment rendered following Reeder's complaint that she fell on her right shoulder. Dr. Clauss's medical records reveal that Reeder filled out an accident questionnaire on August 1, 2008. According to the questionnaire, Reeder was involved in a motor vehicle accident on July 28, 2008, sustaining a sore and tight neck between the scapulas along with rib and chest pain. The questionnaire indicates that following the automobile accident, Reeder went home and then proceeded to a doctor's clinic where she received pain medicine and underwent x-rays. Dr. Clauss's medical records contain a lumbar examination form dated August 1, 2008, which reveals an onset of lower back pain beginning on July 28, 2008, following an accident. The form notes that Reeder was also suffering from low back and buttocks pain. Similarly, a cervical examination form dated August 1, 2008, reveals that Reeder was involved in an accident on July 28, 2008. The form notes that Reeder complained of neck pain, left arm pain, and hand pain. The form reveals that Reeder suffered from low back pain along with pain in the following areas: head, neck, left shoulder, arm, hand, fingers, and between scapulas. Numbness was noted in her arm, forearm, and fingers.

Testimony from Dr. Clauss's deposition taken on April 12, 2016, confirms his treatment of Reeder for her neck pain and headaches in 2002, 2003, 2004, and 2006. During this period, Dr. Clauss testified that he made multiple adjustments to Reeder's cervical and thoracic spine. He noted that on June 1, 2007, he treated Reeder for neck pain after she had fallen on her right shoulder and adjusted her lower cervical spine and upper thoracic spine, along with "range of motion stretching with the right shoulder." Dr. Clauss continued rendering treatment to Reeder in 2007 for neck tightness and headaches. He testified that on August 1, 2008, he performed a cervical examination after Reeder complained of neck pain that extended down between her shoulder blades, left arm, and hand. Dr. Clauss advised that the onset date of Reeder's pain was listed as July 28, 2008, on the cervical examination form and a check mark was placed next to the phrase lower back pain. Thereafter, Reeder was diagnosed with neck pain, mid back pain, and low back pain according to Dr. Clauss's testimony. He treated her multiple times for the remainder of 2008 for neck and back pain by performing adjustments and/or manipulations to her cervical, thoracic, and lumbar spine. Dr. Clauss testified that Reeder returned in 2010 and 2011 for neck and head pain.

The above medical evidence and testimony contradicts Reeder's deposition testimony of June 4, 2014, wherein she denied experiencing and seeking treatment for the following pre-existing conditions prior to the work accident at issue: back pain, neck pain, leg pain, and shoulder pain. The medical records and testimony in the record further contradict Reeder's deposition testimony that she could not recall receiving medical care following an automobile accident in July 2008, wherein she sustained a bruised chest. Specifically, medical records from LaSalle Family Medicine Clinic dated February 17, 2014, reveal that Reeder provided a history of pain in her legs, knees, and hands due to a motor vehicle accident years ago. Dr. Brunson's medical record dated October 15, 2008, indicates that Reeder was involved in a motor vehicle accident and experienced chest pain. Dr. Clauss's deposition testimony further indicates that he rendered treatment to Reeder after, and arising from injuries sustained in, the motor vehicle accident. This is evident in Dr. Clauss's deposition testimony, as follows:

Q. [T]here's a motor vehicle accident that takes place and she's in here basically in the August period of 2008 and going forward and you're treating that, right?
....
A. I don't remember if it was an auto-a motor vehicle accident or a-it was? Yeah, okay.

Interestingly, Reeder was present at Dr. Clauss's deposition and interjected the following: "Yeah, it was somewhere around July the 28th. I can remember that because it was right after my ..." Dr. Clauss's deposition testimony and medical records also contradict Reeder's trial testimony that she only sought treatment from him prior to the work accident at issue for migraines and hip adjustments.

At trial during direct examination, Reeder also denied suffering from pre-existing symptoms relating to right leg pain, left leg pain, lower back pain, mid back pain, neck pain, left shoulder pain, and right shoulder pain. On cross-examination, however, Reeder's testimony changed from a denial of those pre-existing conditions to not remembering suffering from those pre-existing conditions. She concluded her trial testimony by admitting to suffering from many of the pre-existing conditions that she denied suffering from on direct examination at trial.

Having reviewed the record before us, we can find no manifest error in the WCJ's findings of fact. The evidence in the record supports its conclusion that Reeder willfully made numerous false statements and representations for the purpose of obtaining workers' compensation benefits. These false statements alone are sufficient to uphold the WCJ's ruling. Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the decision of the workers' compensation judge is hereby affirmed. All costs of this appeal are assessed against Betty Reeder.

AFFIRMED.

      Hardtner's motion for directed verdict is mislabeled. A directed verdict can only be had in jury trials pursuant to La.Code Civ.P. art. 1810. This case was not a jury trial, but instead a bench trial. Hence, Hardtner's motion for directed verdict should have been a motion for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B).


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Timothy Deshun KELLY, Appellant
    No. 51,701-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    TIMOTHY D. KELLY, Pro Se
    JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, JASON W. WALTMAN, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, COX, and McCALLUM, JJ.
   BROWN, C.J.

On August 25, 2016, following a jury trial, defendant, Timothy Deshun Kelly, was convicted of third degree rape. On February 2, 2017, defendant was adjudicated a fourth-felony habitual offender and was sentenced to a term of life imprisonment without the benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence. For the following reasons, defendant's conviction and sentence are affirmed.

FACTS

On January 26, 2016, defendant, Timothy Deshun Kelly, was charged by bill of information with the third degree rape of L.H. on or about April 14, 2015. L.H., a developmentally disabled child, was 15 at the time of the offense, and the defendant was 35. Defendant provided L.H. with alcohol and cocaine, both of which she consumed. Defendant filed a motion for post verdict judgment of acquittal, arguing that the evidence was insufficient to convict.

The state filed a habitual offender bill of information alleging that defendant was a fourth-felony offender. The trial court denied defendant's motion for post verdict judgment of acquittal. Thereafter, the trial court sentenced defendant to 20 years at hard labor to be served without the benefit of parole, probation, or suspension of sentence.

On February 2, 2017, defendant's habitual offender hearing was conducted. The state provided evidence to prove defendant's prior felony convictions for the following: (1) a September 29, 1999, conviction for possession of cocaine; (2) a January 12, 2004, conviction for distribution of cocaine; and, (3) a September 29, 2010, conviction for distribution of cocaine. The trial court took judicial notice of defendant's August 25, 2016, conviction for third degree rape and adjudicated defendant a fourth-felony habitual offender. The trial court vacated defendant's 20-year sentence and resentenced him to serve a life sentence without the benefit of probation, parole, or suspension of sentence. Defendant has appealed.

DISCUSSION

Sufficiency of the Evidence

Defendant, in both his first counseled and only pro se assignment of error, alleges that the evidence was insufficient to convict him of third degree rape. Defendant concedes that he and L.H. had sexual intercourse, but he asserts that the acts were consensual. Defendant argues that the state failed to prove that L.H. was unable to consent to the sex acts due to "a stupor or abnormal condition of mind produced by an intoxicating agent or any cause" or "through unsoundness of mind." Defendant asserts that although there was testimony that L.H. was in special education classes, there was no expert testimony to establish that L.H. was incapable of understanding the acts. Furthermore, while there was evidence that L.H. had ingested cocaine, there was no evidence to establish "how" intoxicated she was at the time she had sex with defendant.

L.H., who was 16 at the time of trial, testified that she met defendant while walking her baby brother to a gym for food. Defendant pulled up next to her and asked for her phone number. He called while she was still walking with her brother and met up with her. L.H. got into defendant's car and placed her baby brother in the back seat. Defendant then engaged in vaginal sexual intercourse with L.H. At some point, L.H. asked defendant to stop and he did. Afterwards, L.H. took her brother and walked home.

Later that evening, defendant called L.H. but her mother answered. Defendant hung up and tried calling back several times, but L.H.'s mother kept answering so defendant kept hanging up.

Sometime later that same night, defendant called and L.H. answered. Defendant asked L.H. "where the F [she] was" and told her to hurry and come outside. L.H. got into defendant's car and he drove her to his "homeboy house" on Greenwood Road in Shreveport, Louisiana. Defendant instructed L.H. to go hide in some bushes while defendant took his friend and his friend's girlfriend somewhere. L.H. did as she was told and defendant returned shortly after and drove L.H. to a liquor store where he purchased vodka. Defendant drank some and told L.H. to finish the bottle. L.H. drank the alcohol, which she described as "strong" and then "felt dizzy."

The two returned to defendant's friend's house and had sex in one of the bedrooms. L.H. testified that she knew she was having sex with defendant, but stated that she did not want to do so. Afterwards, defendant's friend came upstairs and wanted to have sex with L.H. but she said "no." She then asked defendant to take her home. Defendant got some cocaine from his friend and gave it to L.H. He told her to sniff it and she did. She said it made her feel "dizzy."

Defendant then drove L.H. to his sister's apartment. L.H. slept on the floor of a bedroom. In the early morning, L.H.'s mother called defendant. L.H. overheard defendant telling her mother that L.H. was with his son and a girl named "Nalo." Defendant then dropped L.H. off near her stepfather's house. L.H. had no further contact with defendant. During cross-examination, L.H. admitted that she told defendant that her little brother was her child so that he would think she was older.

Brittany Hughes, a sexual assault nurse examiner ("SANE"), testified that she performed a sexual assault examination on L.H. at Willis-Knighton Medical Center. Hughes stated that it was obvious that L.H. was mentally delayed, a fact confirmed by L.H.'s mother, who said that L.H. operated on a third-grade level. Hughes took swabs of L.H.'s mouth, breasts, vagina, and anus; she also took blood and urine samples from L.H. Hughes took photographs of L.H.'s vagina which indicated a laceration and tears to her hymen and vagina. L.H.'s pants were stained red, and Hughes noticed blood coming from her vagina. None of L.H.'s injuries required suturing or pain medication.

Shreveport Police Detective Monique Robinson met L.H. at the hospital. Detective Robinson noticed that L.H. had difficulty describing certain things, failed to make complete statements, and could not pronounce words correctly; her mother confirmed to Detective Robinson that L.H. suffered developmental delays. Based on this information, Detective Robinson stopped questioning L.H., but allowed L.H. to give a statement regarding what had happened to her. Detective Robinson arranged for L.H. to be interviewed by a forensic interviewer at the Gingerbread House Children's Advocacy Center ("Gingerbread House").

Following L.H.'s interview at the Gingerbread House, she showed Detective Robinson two locations where she said defendant, whom she referred to as "Anthony," took her to have sex. L.H. identified a house off of Greenwood Road as defendant's "homeboy house." L.H. stated that she consumed a daiquiri before having sex with defendant at defendant's friend's house, and that defendant instructed her to sniff a white substance he referred to as "soft" while there.

L.H. then directed Detective Robinson to the Aspen Apartments on Baird Road in Shreveport. L.H. recalled that defendant took her to his sister's apartment, but she could not recall the specific apartment.

L.H. told Detective Robinson that when she first met defendant, while she was walking with her brother, he took her to Ford Park and had sex with her.

Later, L.H. identified the defendant in a photographic lineup as the man who had sex with her. Defendant was arrested and a sample of his DNA was collected and sent to the North Louisiana Crime Lab. His last known address was for an apartment at the Aspen Apartments. Defendant has an older brother named "Anthony." Detective Robinson testified that defendant's date of birth is August 20, 1979.

Alex Person, a forensic interviewer with a degree in Family and Child Studies and a minor in Child Development, testified that she conducted L.H.'s forensic interview at the Gingerbread House on April 20, 2015. Person identified a video recording of the interview, which was played in open court. In the recording, L.H. stated that she was walking her one-year-old brother when defendant drove up beside her in his car. He told L.H. that she was "pretty" and "fine" and asked for her phone number.

L.H. stated that she gave defendant her phone number, and he began calling her while she was still walking with her brother. L.H. answered and defendant drove back to see her. Defendant told L.H. to get in his car and she complied. L.H.'s little brother was in the back seat. Defendant then laid L.H.'s seat back, climbed on top of her, and put his "peginas" in her "private part." L.H. identified a "peginas" as a penis on an anatomical drawing of a male. She explained, using an anatomical drawing of a female, that defendant put his penis in her "private part" (vagina) until "nut" (semen) came out of his penis. He then dropped L.H. and her brother off on the same street where they had been walking.

L.H. stated that the next evening defendant called her and came to her house. He asked her "where the fuck she was" and told her to come outside and get in his car. L.H. said that she was afraid of defendant because he told her that if she "went with someone else that he would beat [her] to death." Defendant took L.H. to his "homeboy house," picked up his friend, and they all drove to a liquor store. Defendant bought alcohol and told L.H. to drink it, so she did. Then, defendant took L.H. back to his "homeboy house" and had sex with her. L.H. stated that she also "sucked his peginas." L.H. then told defendant to take her home, but he gave L.H. some cocaine and told her to sniff it. Defendant then drove L.H. to his sister's house where L.H. slept on the floor of a bedroom. The next morning, defendant had sexual intercourse with L.H. again. L.H.'s mother called defendant, and he hung up on her. Defendant then dropped L.H. off near her home. L.H. told Person that she had never had sexual intercourse with anyone before having sex with defendant.

Person stated that based on her interview of L.H., she believed that L.H. suffered from developmental delays and had an intellectual age closer to a 9- to 12-year-old. Person said that she had never heard a penis referred to as a "peginas."

Audra Williams, an expert in DNA analysis at the North Louisiana Crime Lab, testified that she received a reference sample from L.H. (a buccal swab and blood sample) and a physical evidence recovery kit ("PERK") containing oral swabs, breast swabs, neck swabs, female swabs, hair combings, and then external genitalia, perianal and anal swabs taken from L.H. by a sexual assault nurse on April 14, 2015. Williams discovered spermatozoa on the perianal swab. Further analysis allowed Williams to detect DNA from L.H. and an unknown male on the perianal and anal swab. Later, a buccal swab taken from defendant was sent to the crime lab for analysis and comparison. Williams testified that the results indicated that defendant's DNA matched the DNA found on the perianal swab taken from L.H. during the sexual assault examination.

Carla Colbert, an expert in toxicological analysis at the Louisiana State Police Crime Laboratory, testified that she received blood and urine samples taken from L.H. on April 14, 2015. L.H.'s urine sample indicated the presence of benzoylecgonine, an active cocaine metabolite.

L.H.'s foster mother, Shirley Webb, testified that L.H. had lived with her for approximately two months at the time of trial. L.H. was attending Doyline High School where she was enrolled in special education classes. Webb explained that L.H. often gets confused while doing everyday chores like getting dressed or taking care of her personal hygiene. Webb had to show her how to use the shower. Webb stated that she does not allow L.H. to cook because she's afraid she'll burn herself. L.H. will allow herself to be bossed around by Webb's other foster child who is the same age as L.H. L.H. is closer to Webb's granddaughter, a 12-year-old who helps L.H. with her homework.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2d Cir. 01/09/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2d Cir. 01/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So.3d 297.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Demery , 49,732 (La. App. 2d Cir. 05/20/15), 165 So.3d 1175, writ denied , 15-1072 (La. 10/17/16), 207 So.3d 1067. A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Demery , supra .

At the time of the offense, La. R.S. 14:43 provided, in pertinent part:

(A) Simple rape [third degree rape] is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity.
(2) When the victim, through unsoundness of mind, is temporarily or permanently incapable of understanding the nature of the act and the offender knew or should have known of the victim's incapacity.

The element of a stupor or abnormal condition of the mind produced by an intoxicating agent, such as alcohol, does not require an unaware victim with no capacity to resist, but rather an agent-influenced incapacity to effectively resist the advances of the perpetrator. See State v. Porter , 93-1106 (La. 07/05/94), 639 So.2d 1137, 1143. The degree of alcohol influence is for the jury to decide. Id. The provisions of La. R.S. 14:43 criminalize behavior which "takes advantage of a person who has had too much to drink and participates in an act to which he or she would not otherwise have consented." State v. Clark , 04-901 (La. App. 3d Cir. 12/08/04), 889 So.2d 471, 475.

With regard to the "unsoundness of mind" element of La. R.S. 14:43, courts have held that competency to testify is not the same as the capacity to understand the nature of the sexual act. State v. Peters , 441 So.2d 403 (La. App. 4th Cir. 1983), writ denied , 530 So.2d 560 (La. 1988) ; State v. Ward , 04-1295 (La. App. 5th Cir. 04/26/05), 903 So.2d 480, writ denied , 05-1718 (La. 03/17/06), 925 So.2d 533. There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual assault. State v. Peters , supra . In State v. McDowell , 427 So.2d 1346, 1350 (La. App. 2d Cir. 1983), this Court explained that the relevant inquiry regarding the victim's ability to consent in rape cases is whether the victim "understands and appreciates the nature of the act of sexual intercourse, its character and the probable and natural consequences which may attend it."

When viewed in a light most favorable to the prosecution, the evidence adduced at trial was sufficient to convict defendant of third degree rape. The medical and forensic evidence clearly establishes that defendant had vaginal sexual intercourse with L.H., a fact defendant does not dispute. The evidence was sufficient to support the jury's finding that L.H. was unable to consent to at least one of the sexual acts as she was under the influence of an intoxicating agent. L.H. testified, consistent with her Gingerbread House interview and her statement to Detective Robinson, that prior to having sex with defendant at his friend's house she consumed, at the defendant's instruction, "strong" alcohol which made her feel "dizzy." Although L.H. testified that she never lost consciousness, she explained that she did not want to have sex with defendant.

The evidence was also sufficient to support a finding that L.H. was unable to consent to any of the sexual acts because she was incapable of doing so through unsoundness of mind and defendant knew, or should have known, of her incapacity. The Gingerbread House video recording reveals that L.H. is not the average 15-year-old. During her interview and at trial, L.H. was distracted easily, used the term "peginas" to describe the defendant's penis, and did not seem to comprehend the significance of her first sexual experience. Person, an experienced forensic interviewer, testified that L.H. appeared to have an intellectual age of a 9- to 12-year-old and suffered obvious developmental delays. Likewise, Hughes and Detective Robinson both noticed immediately that L.H. suffers developmental delays. L.H.'s mother, J.H., confirmed as much and explained that L.H. operates at a third-grade level. L.H.'s foster mother, Webb, testified that at the time of trial L.H. was attending special education classes and had trouble taking care of her personal needs. Accordingly, this assignment of error lacks merit.

Excessive Sentence

Defendant argues that his life sentence is excessive. He notes that all of his prior convictions are drug offenses. He also points out that the trial court did not note any mitigating factors when imposing his original 20-year sentence.

The state counters that defendant's original 20-year sentence was vacated and thus the trial court's alleged failure to consider the sentencing factors provided in La. C. Cr. P. art. 894.1 is irrelevant. The state notes that defendant received the mandatory life sentence per La. R.S. 15:529.1(A)(4)(b).

Prior to sentencing defendant to the original sentence of 20 years, the trial court noted its review of the La. C. Cr. P. art. 894.1 sentencing factors and found that the following applied: (1) there was an undue risk defendant would reoffend if given a probated or suspended sentence; (2) defendant was in need of correctional treatment or a custodial environment; and, (3) a lesser sentence would deprecate the seriousness of defendant's crime. The trial court found no mitigating factors that applied to defendant's case.

On February 2, 2017, the trial court found defendant to be a fourth-felony offender, with two of the prior offenses being drug offenses punishable by more than a 10-year sentence, and the last felony being a sex offense with a victim under the age of 18. The trial court further noted that defendant's criminal record evidenced his intention to continue to reoffend and demonstrated that he is in need of correctional treatment. The trial court then sentenced defendant to a life sentence to be served without the benefit of parole, probation, or suspension of sentence.

A sentence violates La. Const. art. I § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 01/15/02), 805 So.2d 166 ;

State v. Small , 50,388 (La. App. 2d Cir. 02/24/16), 189 So.3d 1129, writ denied , 16-0533 (La. 03/13/17), 212 So.3d 1158.

The minimum sentences mandated by the habitual offender law are presumed to be constitutional. State v. Johnson , 97-1906 (La. 03/04/98), 709 So.2d 672. The legislature's determination of an appropriate minimum sentence should be afforded great deference by the judiciary. State v. Capers , 43,743 (La. App. 2d Cir. 12/03/08), 998 So.2d 885, writ denied , 09-0148 (La. 10/02/09), 18 So.3d 102. Courts have the power to declare a sentence excessive under La. Const. art. I, § 20 although it falls within the statutory limits provided by the legislature; however, this power should be exercised only if the court finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. State v. Johnson , supra ; State v. Lindsey , 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied , 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

At the time of defendant's underlying offense, La. R.S. 15:529.1 provided, in relevant part:

(A) Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
....
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
...
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq . when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Defendant fails to articulate any reason why his circumstances justify a departure from the mandatory life sentence. His criminal record demonstrates a likelihood of recidivism and the nature of his most recent offense-the rape of a young developmentally challenged girl-is particularly disturbing. The mandatory life sentence does not shock the sense of justice. This assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      In accordance with La. R.S. 46:1844(W), the victim and her mother will be identified by their initials only.

      Defendant waived the sentencing delay provided in La. C. Cr. P. art. 873.

      The transcript of the habitual offender/sentencing hearing indicates that defendant was provided verbal and written notice of his obligation to register as a sex offender; he was also advised of his right to seek post-conviction relief.

      L.H. testified that her birthday is February 26, 2000. L.H. identified a book, admitted into evidence as S-4, as her favorite book; the book is recommended for children ages 6 to 9.

      Person testified that she has completed over a thousand forensic interviews of children age 2 to 17.

      In 2015, the Louisiana legislature modified La. R.S. 14:43, changing the name of the offense from "simple rape" to "third degree rape." Any act in violation of R.S. 14:43 committed on or after August 1, 2015, was to be referred to as "third degree rape." Defendant's underlying offense was committed on or about April 14, 2015, but to avoid confusion and to maintain consistency with the record, this opinion will refer to defendant's crime as "third degree rape."

      The law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused. State v. Parker , 03-0924 (La. 04/14/04), 871 So.2d 317 ; State v. Mizell , 50,222 (La. App. 2d Cir. 11/18/15), 182 So.3d 1082.