author: KEATY, Judge.

text:
    Dareth Champlin DELHOSTE v. Robin G. DELHOSTE
    16-983
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017

      Brandy McClure, Attorney at Law, Post Office Box 665, Jonesville, Louisiana 71343, (318) 339-7337, Counsel for Plaintiff/Appellee, Dareth Champlin Delhoste (mother)
    James R. Boyd, Attorney at Law, Post Office Drawer 1464, Ferriday, Louisiana 71334, (318) 757-3000, Counsel for Defendant/Appellant, Robin G. Delhoste (father)
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

|,Defendant/Appellant, Robin G. Del-hoste, appeals the trial court’s judgment denying his Rule for Contempt, Change of Custody, and Change in Visitation. For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Robin G. Delhoste (hereinafter “the father”) married Plaintiff/Appellee, Dareth Champlin Delhoste (hereinafter “the mother”), in 1999. Four children were born of the marriage: Chloe Amanda Delhoste, born June 12, 2000; Peyton Edward Del-hoste, born April 2, 2004; Sawyer Champ-lin Delhoste, born April 2, 2004; and Mollie Pearl Delhoste, born April 27, 2007. On April 21, 2014, the couple divorced. A Stipulated Judgment entered into between the parties, rendered on January 6, 2014, and signed by the trial court on January 21, 2014, granted the mother sole custody of the children. The father was granted visitation with the three younger children “every other Saturday and Sunday, during the day.” He was granted visitation with the oldest child, Chloe, “based on the recommendation of the minor child’s counselor.”

There have been multiple filings in this matter. At issue herein is the father’s Rule for Contempt, Change of Custody, and Change in Visitation, which he filed on October 30, 2015. Therein, he asked for visitation every other weekend, from 6:00 p,m. on Friday until 6:00 p.m. on Sunday. He asked to “be allowed to visit with the children one (1) weeknight from after school until 8:00pm [sic] on the weeks where he does not exercise his weekend visitation.” He sought custody of Chloe, with weekend visitation in favor of the mother. The father asked the trial court to hold the mother in contempt of court for violating various court orders and stipulations.

1 ;>The rule was heard on January 7, 2016. After taking testimony, the trial court took the matter under advisement and gave the parties time to file rebuttal briefs. The trial court instructed the mother to provide all medical records pertaining to Chloe’s mental health, including those from the Office of Community Services (OCS) and Darla Gilbert, Chloe’s mental health counselor. On April 5, 2016, the trial court rendered and signed a judgment denying all provisions of the father’s rule. It ordered the provisions of the Stipulated Judgment remain in full force and effect. The father appealed.

On appeal, the father asserts the following assignments of error:

1. The trial court clearly erred in not finding a change of material circumstance necessary to change custody relating to the minor child, Chloe Delhoste.
2. The trial court clearly erred by [not] finding that a change of custody and increase in visitation was in the best interest of the minor children.
3. The trial court clearly erred by not finding Defendant-in Rule/Appellee, Dareth Champlin Delhoste, in contempt of court.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). In child custody disputes, “ ‘[t]he trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse.’ ” Deason v. Deason, 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir. 1988)). The primary consideration and prevailing inquiry is whether the custody arrangement is in the [Sbest interest of the child. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731.

DISCUSSION

I. Material Change of Circumstances

In his first assignment of error, the father contends the trial court erred in not finding a change of material circumstance necessary to change custody regarding Chloe. In his second assignment of error, the father alleges the trial court erred by not finding a change of custody and increase in visitation was in the children’s best interest. Given the overlapping assignments, we will discuss the trial court’s factual findings supporting its conclusion that there was no material change of circumstances which would warrant modification of the custody arrangement as it relates to all four children.

The custody arrangement at issue, resulted from a Stipulated Judgment. In order to modify custody, the father must prove, “ ‘(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.’ ” Tracie F. v. Francisco D., 15-1812, p. 10 (La. 3/15/16), 188 So.3d 231, 239-40 (quoting Evans, 708 So.2d at 738). In Prather v. McLaughlin, 16-604, p. 5 (La.App. 3 Cir. 11/2/16), 207 So.3d 581, 585, this court noted:

Some courts have held that for a material change of circumstances to be “sufficient to alter the custody plan ... the material change of circumstances ‘must be of a substantial and continuing nature to make the terms of the initial decree unreasonable.’” Tarver v. Tarver, 15-219 (La.App. 3 Cir. 10/7/15) [2015 WL 5837655] (unpublished opinion) (citing LINDA D. ELROD, CHILD CUSTODY PRACTICE AND PROCEDURE § 17:4 (database updated 2015)).

pin his rule for modification, the father argued a material change in circumstances occurred because the parties cannot agree as to the time in which he can exercise visitation and that discussions regarding visitation have become “contemptuous.” The father noted Chloe was admitted to an inpatient mental health facility by her mother on June 5, 2015, and “that he was not informed of this hospitalization or any current health problems until his daughter was already admitted into the facility.” The father noted other situations wherein the mother allegedly failed to contact him regarding “important medical conditions involving the children.” He noted the mother “exchanges information with him by having one of the minor children contact him about important dates and events.” He stated the mother “has punished the minor children when they have informed him of events going on in their lives.” However, when asked at the hearing to state the material circumstances which had occurred in order to warrant modification, the father responded: “I made a mistake.” He explained: “I’m not the same person I was then. I’m not grieving over my marriage, and everything, loosing [sic]—I’ve moved on with my life and I want my kids to be part of my life.”

Nevertheless, with respect to visitation, the Stipulated Judgment grants the father “every other Saturday and Sunday, during the day.” At the hearing, the father argued visitation was interrupted during an LSU football game which occurred on a Saturday wherein Chloe was given the opportunity to cheer. He said the problem arose following the game when the mother allegedly did not allow Chloe to ride with him back home to Jonesville because it was “unhealthy.” On cross-examination, however, the father admitted that he and the other children went to the football game that day and he was able to see all of his children. In that regard, the mother testified that the father had “exercised his visitation earlier; | sit ended at 6 that afternoon.” The father testified another incident occurred where he allowed Chloe to attend a movie with her mother during his weekend. On cross-examination, however, he admitted that the mother subsequently and during her scheduled time with the children allowed him to “meet Chloe at the movie theater and .sit .in the movie with her.”

The mother further testified that the father’s weekend visitation normally occurred on Saturdays, from 8:00 a.m. to 6:00 p.m.-, and on Sundays, froto after church to 5:30 p.m. The mother stated that the arrangement was working out-fine and that she often gave the father extra time with the children by-revealing: “He has called and asked or texted for extra time. The -kids have asked if they could get extra time[,] and then I let them set that up.” The foregoing testimony contained in the transcript of the hearing indicates that the father exercised visitation pursuant to the Stipulated Judgment.

With respect to Chloe’s medical issues, the father testified that he was not informed prior to Chloe being admitted to an inpatient mental health facility on June 5, 2015. According to his testimony, the mother called him after Chloe was admitted and explained that “it happened late the night before, that everything got worked out and that they brought her down there that morning[ ]” to be commit-r ted. At the hearing, the mother testified that the hospitalization occurred because Chloe was exchanging inappropriate pictures with an eighteen-year-old person. The mother revealed that after discussing the texting incident with Chloe’s counselor, Ms. Gilbert, another healthcare provider, and an investigator, they concluded Chloe was in imminent danger. The mother’s testimony indicates she was advised by “the professionals and doctors” not to tell anybody that Chloe was going to be committed prior to her admittance in order to facilitate a smooth transition into the | ^psychiatric' hospital. The mother stated that she made an informed decision when seeking treatment for Chloe.

Ms. Gilbert, a' licensed professional counselor specializing in mental health, marriage and family therapy, was accepted at the hearing as the mother’s expert witness. Ms. Gilbert testified that she had been treating Chloe, who was diagnosed as bi-polar, for approximately four years. Ms. Gilbert testified that she recommended Chloe be hospitalized in the New Orleans inpatient mental facility because Chloe “was a danger to herself because of her erratic and acceleratingly dangerous behavior.” Ms. Gilbert considered Chloe a flight risk and was concerned that she would run when addressed about her behavior.

The. mother stated that she discusses issues with the father regarding the children although she occasionally gets “so wrapped up in parenting four kids that [she] forget[s] to let him know something,” She revealed the children “enjoy telling him what’s going on in their life. I don’t stop that,” She indicated that, Chloe is fifteen years old, the boys are eleven years old, and Molly is eight years old. She stated that the children communicate with their father via telephone.

With, respect to the children’s health and safety in general, the-father testified that the mother and children were involved in a minor automobile accident. He said no one sustained injuries and that he was informed of the accident from one of his children. The father testified that he should have learned of the accident, immediately from the mother to -ensure that his children were safe. In response, the mother testified that, ,“[i]t’s kind of hard to let him know when I’m outside talking to the cop writing me the ticket and Chloe’s on the phone with him. So I can’t be the first person in that case.” When asked whether the mother keeps himjjinformed regarding the children, the father responded: “She has recently in the past month, yes. Things have been better.”

Finally, the father alleged in the rule for modification that the mother punished the children when they informed him of events in their lives. At the hearing, he stated: “I believe that Chloe is punished. I do not really believe the other three are.” The father testified the mother took away Chloe’s cell phone following an incident which occurred over the holidays when Chloe was working. The father explained that he picked up Chloe, brought her to lunch, and returned her to work, which encompassed approximately thirty minutes. He believes Chloe was punished by the mother for having lunch with him by having her cellular phone taken away, resulting in his inability to reach her for three days. On cross-examination, however, he admitted the foregoing testimony was based on his conversations with Chloe and not on personal experience. Notably, he stated: “I’m not [at their house] so ... I do not have personal experience.”

On the other hand, the mother testified that Chloe was not punished for having lunch with the father. The mother stated that she previously told Chloe not to leave work as she “was still responsible for” her. The mother indicated she took Chloe’s phone away for breaking that rule.

Based on the above testimony and evidence, we find that the father’s alleged material change of circumstances is not substantial and continuing in nature to make the terms of the Stipulated Judgment unreasonable. Accordingly, the trial court did not abuse its discretion in this regard.

II. Best Interest of the Child

In ⅛ geCond assignment of error, the father contends the trial court erred by not finding that an increase in visitation was in the children’s best interest. To ^determine whether a modification of visitation was in the children’s best interests, the trial court considered the following relevant factors listed in La.Civ.Code art. 134, including “[t]he love, affection, and other emotional ties between each party and the child[,]” La.Civ.Code art. 134(1); “[t]he capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child[,]” La.Civ. Code art. 134(2); “[t]he length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment[,j” La. Civ.Code art. 134(4); “[t]he permanence, as a family unit, of the existing or proposed custodial home or homes[,]” La.Civ. Code art. 134(5); “[t]he moral fitness of each party, insofar as it affects the welfare of the child[,]” La.Civ.Code art. 134(6); and “[t]he mental and physical health.of each party[,]” La.Civ.Code art. 134(7).

In that regard, the mother testified that she maintains “a healthy motherly relationship with the children.” She revealed that she gives the children love, affection, and spiritual growth, noting they attend church with her every Sunday. She indicated the children have lived with her in her current home since Chloe was approximately two years old. She testified that the children regularly attend school where she transports them every day. The mother stated that she is mentally and physically able to care for the children. She noted that she has also been the children’s primary caretaker since their birth.

The mother agreed that she is willing to facilitate, encourage, and foster the relationship between the children and their father. She testified that the father, however, fails to discuss issues with her concerning Chloe or the other children. In that regard, the father testified that communication between the parents is important, although he does not communicate with the mother. He contradicted 19himself by also testifying that he has communicated with the mother. The father indicated the mother “does not want to communicate with” him. We note there is no obligation on a sole custodian to confer with the other parent about anything. Robert C. Lowe, 1 la. prac. divorce § 7:62. Regardless, the trial court indicated its concern regarding the lack of communication between the parents with respect to the children. We find that the transcript supports the trial court’s conclusion.

The third factor addresses “[t]he capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.” La.Civ.Code art. 134(3). The twelfth factor addresses “[t]he responsibility for the care and rearing of the child previously exercised by each party.” La.Civ.Code art. 134(12). With respect to this issue, the transcript shows the father’s failure to financially care for the children given his acknowl-edgement of a September 30, 2015 judgment ordering him to pay the mother $22,478.00, which included money owed for past-due child support. The mother’s testimony also shows that she provides food, clothing, medical care, and other material needs of the children, including Chloe. At the hearing, the father was unable to provide the names of Chloe’s medications despite his testimony that it is important to know the identity of his children’s medication. When asked whether he knew what Chloe was diagnosed with, he responded, “No.”

In that regard, Ms. Gilbert agreed it was important for the parent retaining physical custody of Chloe to be aware of her diagnosis and have constant communication with her physicians. Ms. Gilbert noted the father contacted her only two times over a four-year period regarding Chloe’s mental health. Ms. Gilbert expressed concern if Chloe would live with her father because he treats Chloe like a spouse or peer and is “emotionally dependent” on her. Ms. Gilbert | insaid such a relationship is unhealthy because a father “should not rely on his daughter. Daughters should be able to rely on her father, be protected by her father, not the other way around.” Ms. Gilbert noted that Chloe “has a history of very serious dangerous behavior and some of it is sexual in nature. She has to be very, very closely monitored because there have been episodes that are quite severe.” Ms. Gilbert said Chloe’s mental disorder requires strict boundaries, which the mother maintained. On the other hand, Ms. Gilbert was unsure whether the father implemented strict boundaries and opined that Chloe “will not maintain stability” if her father is given custody. Ms. Gilbert testified that maintaining custody in favor of the mother is “critical for Chloe’s welfare[.]”

The ninth factor notes “[t]he reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.” La.Civ.Code art. 134(9). The father testified that Chloe’s preference was to live with him. On the other hand, the mother testified that Chloe’s preference was to remain living at home, in the mother’s custody, as long as things would “be different.” The mother explained Chloe wanted things to change at home because “she hates to do her laundry and she hates to do certain chores but as a 15 year old she needs those.” There is nothing in the transcript indicating the trial court specifically addressed the relevancy of this factor. Although a child’s age and preference is taken into consideration, we find this factor is not relevant given Chloe’s immaturity based upon Ms. Gilbert’s testimony regarding Chloe’s erratic behavior.

Based on the above, the trial court determined that a modification of visitation was not in the children’s best interest. Considering the record as a whole, we cannot say that the trial court abused its discretion in this regard.

hiHI. Rule for Contempt

In his third assignment of error, the father contends the trial court erred by not holding the mother in contempt for failing to abide by the Stipulated Judgment which requires the parents to inform each other regarding the children’s health and education. The father alleges the mother violated the judgment by failing to inform him of an automobile accident and by placing Chloe in an inpatient psychiatric institution without his knowledge. We have previously addressed these alleged violations. The father also asserts the mother violated the visitation provision in the Stipulated Judgment by not allowing the children to spend all day Sunday with him because she does not trust him to take them to church.

Constructive contempt is defined as the “[wjilful disobedience of any lawful judgment, order, mandate, writ, or process of the court[.]” La.Code Civ.P. art. 224(2). In this case, the Stipulated Judgment executed by the trial court on January 21, 2014, failed to specify an exact time for weekend visitation; it only specified visitation “every other Saturday and Sunday, during the day.” The testimony indicates the father exercised weekend visitation in accordance with that judgment. Approximately two years later at the January 7, 2016 hearing at issue, the parties voluntarily agreed to an exact time regarding weekend visitation. The mother’s actions which the father claims constituted contempt, however, occurred prior to the January 7, 2016 hearing, when a time period was not specified. Thus, the mother cannot be in contempt.

Accordingly, the trial court did not manifestly err in this regard, and the father’s assignment of error is without merit.

jy^DECREE

The trial court’s judgment denying the Rule for Contempt, Change of Custody, and Change in Visitation filed by Defendant/Appellant, Robin G. Delhoste, is affirmed. All costs of this appeal are assessed to Defendant/Appellant, Robin G. Delhoste.

AFFIRMED.


source: Caselaw Access Project

author: Cooks, J.

license: Public Domain

text:
    Harley MITCHEM v. Lester SOILEAU and Janella Soileau
    17-51
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017

      Guy O. Mitchell, Mitchell Law Offices, 225 Court Street, Ville Platte, LA 70586-4492, ATTORNEY FOR PLAINTIFF/APPELLANT: Harley Mitchem
    C. Brent Cored, 128 Young Street, P.O. Drawer 450, Ville Platte, LA 70586, ATTORNEY FOR DEFENDANTS/APPEL-LEES: Lester Soileau, Et Ux
    Court composed of Sylvia R. Cooks, Billy .H, Ezell and Van H. KLyzar, Judges.
   Cooks, J.

|, FACTS AND PROCEDURAL HISTORY

Harley Mitchem (Mitchem) filed a possessory action against his neighbors, Lester and Janella Soileau (Soileaus). The Soileaus and Mitchem are contiguous land owners whose respective tracts of land are bordered in part by a drainage ditch/canal (canal) maintained by the Evangeline Parish Police Jury (Police Jury). Although aware that he did not own any part of the canal, which he admits is located entirely on the Soileaus’ property, Mitchem requested the Police Jury perform necessary maintenance of the canal after his property was flooded. Mitchem attributed the flooding to the poor maintenance of the drainage canal.

Without contacting the Soileaus the Police Jury began cleaning the canal and deposited the spoil dirt on Mitchem’s property as he requested. The Soileaus contacted the Police Jury and eventually agreed to allow it to continue dredging the canal with the understanding that the same amount of dirt removed from their property would be replaced on their adjoining property by the Police Jury at no cost to them. The Soileaus also hired J. Ronald Landreneau & Associates, Civil Engineers and Land Surveyors (Landreneau) to resurvey their property and re-mark their property line after the work on the canal was completed by the Police Jury. The land was last surveyed in 1994 by Landreneau. Landreneau placed survey markers on a line east of the canal, approximately two feet from the edge of the canal, between the canal and Mitchem’s hurricane fence that ostensibly marks the edge of Mitchem’s property. Mitchem, believing the survey markers to be ^improperly placed on his property, and thus interfering in his peaceful possession of the disputed triangular piece of property, filed this action to be restored to peaceful possession of what he claims is his property acquired by thirty-years acquisitive prescription.

The trial court found Mitchem’s petition for possession to be without merit. It also found the Soileaus “were in fact in possession of the disputed property within the year prior to the filing of these proceedings and up to the date of trail [sic].” Accordingly, the trial court dismissed Mit-chem’s suit with prejudice and cast all costs on Mitchem. Mitchem appeals asserting two assignments of error:

1. The District Court committed legal error when it misapplied the burden of proof by a preponderance of the evidence; it being obvious that the plaintiff proved his case by a preponderance of the evidence.
2. The District Court committed manifest error when it relied almost exclusively on the testimony of the surveyor, J. Ronald Landreneau, and further misinterpreted the testimony of Mr. Landreneau and virtually ignored other testimony and evidence presented by the plaintiff.

ANALYSIS

We review the trial court’s ruling in a possessory action applying the manifest error standard of review. After a full review of the record we cannot say the trial court manifestly erred in concluding that Mitchem failed to carry his burden to prove that he and his ancestors in title had uninterrupted, quiet and peaceful possession of the disputed tract of land, to the boundary he claims, for over a year before his alleged possession was disturbed by Landreneau’s placement of survey stubs.

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A twotiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Allen v. Belgard, 05-1284, pp. 10-11 (La. App. 3 Cir. 4/5/06), 925 So.2d 1275, 1282.

Based on our review of the record we find the trial court’s findings of fact are reasonably supported by the record. This court is Belgard set forth Louisiana law applicable in a possessory action:

The Louisiana Code of Civil Procedure and the Louisiana Civil Code address the possessory action through various articles which provide in pertinent part as follows:
La.Code Civ.P. art. 3655. Possessory action
The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.
La.Code Civ.P. art. 3656. Same; parties; venue
LA plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and ’ one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.
The possessory action shall be brought against the person who caused the disturbance....
La.Code Civ.P. art. 3662. Same; relief which may be granted successful plaintiff in judgment; appeal
A judgment rendered for the plaintiff in a possessory action shall:
(1) Recognize his right to the possession of the immovable property or real right therein, and restore him to possession ... or maintain him in possession ..,;
(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory ...; and
(3) Award him the damages to which he is entitled and which he has prayed for.
La.Code Civ.P. art. 3658. Same; requisites
To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.
|fiLa.Code Civ.P. art. 3659. Same; disturbance in fact and in law defined Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law.
A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly. ...
A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein. ...
La.Code Civ.P. art. 3660. Same; possession
A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and'possesses for himself, whether in good or bad faith, or even as a usurper.
La.Code Civ.P. art. 3661. Same; title not at issue; limited admissibility of evidence of title
In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.
La.Civ.Code art. 3424. Acquisition of possession
To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.
Additionally, our jurisprudence provides that the type of possession required for a possessory action is identical to that required to commence the running of acquisitive prescription. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). In Phillips v. Fisher, 93-928 (La. App. 3 Cir. 3/2/94), 634 So.2d 1305, writ denied, 94-0813 (La. 5/6/94), 637 So.2d 1056, we summarized the law of adverse possession of thirty years acquisitive prescription:
1 (¡Immovable property may be acquired through thirty years acquisitive prescription without good faith or just title. The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to support it. A possessor will only be considered as possessing that part of property over which he exercises actual, adverse, corporeal possession which is continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds. He must also prove that he intended to possess as owner, adverse to the actual owner, for the required thirty years.

Id. at 1307 (citations omitted) (Emphasis added).

Moreover, in the landmark case of Hill, 221 La. 402, 59 So.2d 434, the court articulated that where ownership is claimed by possession, without proof of title, the claimant must show adverse possession by enclosure, and his claim will not extend beyond such enclosure. In other words, there must be some markers or boundaries, either artificial or natural, evincing an intention on the claimant’s part of the extent and area of land over which he asserts his possession. The term “enclosures” is not limited to fences and walls, but such marks or bounds must be visible and sufficient to denote the location, area, and extent of the land over which possession is alleged. Belgard, 925 So.2d at 1282-84 (emphasis added) (footnote omitted).

The parties presented only one survey performed by an expert, Landreneau. He had previously surveyed the property and his testimony did nothing to support Mit-chem’s claims regarding possession to an old fence which was no longer on the property. Photographs submitted in. evidence show that the property was not being maintained by Mitchem, or anyone, for quite some time prior to the disturbance, i.e. Landreneau’s placement of new survey markers on the same line that he says he placed markers: on after his 1994 survey. Additionally, Mitchem’s witnesses provided no assistance in establishing his possession of the disputed two-foot deep strip of land running along the canal admittedly owned by the Soileaus. In fact, they corroborated Mitchem’s representation that he removed the old fence many years prior to the recent disturbance thus establishing by his own evidence that he 17could not have possessed the disputed strip within a fenced enclosure for many years, and certainly not for the necessary one-year period prior to the most recent disturbance. For the reasons stated, we affirm the trial court’s ruling and assess all costs of these proceedings against Mitchem.

AFFIRMED.

      . "The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” La. Code Civ.P. art. 3655.


author: SAVOIE, Judge.

text:
    John LASALLE v. CITY OF LAKE CHARLES, et al.
    WCA 17-32
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017

      Christopher E. John, Assistant City Attorney, P.O. Box 900, Lake Charles, LA 70602-0900, (337) 491-1523, COUNSEL FOR DEFENDANT/APPELLANT: City of Lake Charles
    Jason R. Bell, Cox, Cox, Filo, Camel & Wilson, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: John LaSalle
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

|,An employer appeals the workers’ compensation court’s judgment finding that its employee’s injuries to his right knee were causally related to a work-accident. For the following reasons, we reverse and render judgment in favor of the employer.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2007, John LaSalle fell off of a trash truck in the course and scope of his employment with the City of Lake Charles (“the City”). He injured his left knee and underwent a left knee replacement. The City paid medical benefits relating to his left knee injuries, as well as indemnity benefits.

On May 20, 2014, Mr. LaSalle sought treatment from Dr. Brett Cascio, complaining of pain in his right knee. Dr. Cascio provided Mr. LaSalle with a steroid injection and ordered an MRI. The City declined to cover the cost of the MRI.

Mr. LaSalle then saw Dr. David Drez on June 26, 2014, for a second medical opinion regarding his right knee. Dr. Drez’s report concluded that no diagnostic studies or further treatment were necessary, other than over-the-counter anti-inflammatory medication. The City again declined to cover expenses related to treatment to Mr. LaSalle’s right knee.

On August 20, 2014, Mr. LaSalle filed a disputed claim for compensation seeking medical benefits related to alleged injuries to his right knee, as well as penalties and attorney fees for the City’s alleged arbitrary and capricious handling of the claim.

Mr. LaSalle saw Dr. Cascio again on September 18, 2014. Dr. Cascio’s report noted a “small effusion” in the right knee and that Mr. LaSalle was provided [gwith another steroid injection. Dr. Cascio ordered an MRI, and the City again declined to the cover the cost.

The City filed an Answer on October 7, 2014, admitting that a work-related accident occurred on August 20, 2007, and that Mr. LaSalle sustained injuries to his left knee arising from that accident. It otherwise denied allegations concerning Mr. La-Salle’s right knee.

On April 10, 2015, the workers’ compensation court signed an order appointing Dr. Thomas Ford to perform an independent medical examination (“IME”) in connection with the disputed medical issues. On May 28, 2015, Dr. Ford completed the IME. His report stated in part (emphasis added):

It is my opinion that Mr. LaSalle’s right knee complaints are from degenerative osteoarthritis of his knee. I do not think these complaints were caused by his on the job injury. While his increased use of the right leg during recovery of his left TKA may have hastened the degeneration in his knee, there is noth-tag to make one believe there is a cause and effect relationship.

The matter was called for trial on June 21, 2016. The parties submitted documentary evidence including Mr. LaSalle’s medical records, and they otherwise agreed to submit the matter on briefs. Post-trial briefs were ordered and submitted.

On September 23, 2016, the workers’ compensation court signed an order adopting its oral reasons given on that day as the written reasons of the court. The oral reasons concluded that Mr. LaSalle’s injuries to his right knee were not causally related to the work accident. However, the oral reasons were not certified or sent to the parties until November 7, 2016.

In the meantime, on November 1, 2016, the workers’ compensation court signed a judgment in this matter finding that Mr. LaSalle’s injuries to his right [sknee were in fact causally related to the work accident and ordering the City to pay related medical benefits. This judgment was designated final and appealable.

The City appeals asserting that “[t]he trial court erred by concluding that right knee injuries in 2014 were causally related to the August 20, 2007 work-related accident.” The City argues that Mr. LaSalle “failed to prove by a reasonable medical preponderance that his right knee injuries were work-related[.]”

ANALYSIS

As we stated in Bollich v. Family Dollar, Inc., 05-1459, pp. 4-5 (La.App. 3 Cir. 6/21/06), 934 So.2d 249, 252:

An appellate court’s review of factual findings in a workers’ compensation case is governed by the manifest error or clearly wrong standard of review. Smith v. La. Dep’t of Corr., 93-1305 (La. 2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630 So.2d 733. Further, “[t]he issue of causation is an issue of fact.” Langley v. Larco Envtl. Servs., Inc., 01-304, p. 8 (La.App. 3 Cir. 10/3/01), 798 So.2d 1097, 1102. In order to reverse a factual determination, the appellate court (1) must find that a reasonable factual basis does not exist in the record for the finding and (2) must further determine that the finding is clearly wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).
In a workers’ compensation case, the claimant must establish a causal link between the work-related accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). To aid the employee in meeting this burden:
[t]he employee’s workplace accident is presumed to have caused or aggravated his disability when [he] proves that; (1) before the accident, [he] had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee | ¿establishes the presumption of a [causal] relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
Tate v. Cabot Corp., 01-1652, p. 6 (La. App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La. 11/22/02), 829 So.2d 1044 (quoting Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La. 2/16/96), 667 So.2d 1058 (citations omitted)). However, “[i]f the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof.” Courville v. Premier Abrasive Prods., 01-840, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 598, 601.

In the instant matter, the court-appointed medical examiner, Dr. Ford, concluded that there was no causal connection between the August 20, 2007 work-accident and the degenerative osteoarthritis of Mr. LaSalle’s right knee. Dr. Ford’s report is “prima facie evidence of the facts therein stated.” La.R.S. 23:1123. While an IME’s report is given significant weight, it is not conclusive,

and the workers’ compensation judge must evaluate all of the evidence presented in making a decision as to the claimant’s medical condition.'.As a general rule, while the trier of fact is required to weigh the testimony of all medical witnesses, the testimony of the treating physician should be . accorded greater weight than that of a physician who examines a patient only once or twice.

Richardson v. Lil' River Harvesting, 09-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419-20 (citations omitted).

Mr. LaSalle argues that the trial court’s judgment is correct because it properly gives more weight to Mr. LaSalle’s treating physician Dr. Cascio’s conclusion that Mr. LaSalle’s injuries to- his right knee were caused by Mr. LaSalle having to overcompensate as a result of injuries to his left knee sustained in the work-related accident. However, contrary to Mr. LaSalle’s suggestion, we fail to see where Dr. Cascio provided an opinion as to the cause of any injuries to Mr. LaSalle’s right knee.

LThe record includes two separate reports from Dr. Cascio. The first is related to an examination on May 28,. 2014, The report notes that Mr. LaSalle complained of right knee pain on that date and that Mr. LaSalle told Dr. Cascio that “due to him favoring his left knee, his right knee has been bothering him.” While Dr. Cascio concluded, following examination, that there was a “right knee meniscal tear,” Dr. Cascio’s conclusions are silent as to what caused the right knee injpries. Similarly, Dr. Cascio’s report from an examination of Mr. LaSalle on September 18, 2014, does not provide an opinion regarding whether Mr. LaSalle’s injuries to his right knee were caused by the work-accident that occurred seven years prior.

Therefore, because the only medical evidence in the record concerning the cause of Mr. LaSalle’s right knee injuries is Dr. Ford’s conclusion that the injuries were not causally related to the August 20, 2007 work-accident, we conclude that the workers’ compensation court was manifestly erroneous in rendering judgment in favor of Mr. LaSalle.

CONCLUSION

For the reasons stated above, the workers’ compensation court’s judgment in favor of Plaintiff-Appellee, Mr. LaSalle, is hereby reversed, and judgment is hereby entered in favor of Defendant-Appellant, City of Lake Charles, dismissing Mr. LaSalle’s action. Costs of this appeal are assessed against Mr. LaSalle.

REVERSED AND RENDERED.

      . We note that no judgment was prepared in accordance with the court’s reasons for ruling; therefore, there are no conflicting judgments in this case. We also note that the workers' compensation court did not provide any reasons supporting the judgment actually rendered.


author: BLEICH, J. (Pro Tempore)

text:
    STATE of Louisiana, Appellee v. Peter E. HALEY, Appellant
    No. 51,256-KA
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 2017
    Rehearing Denied June 15, 2017

      PETER E. HALEY, Pro Se
    LOUISIANA APPELLATE PROJECT, By: Paula Corley Marx, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee

      MONIQUE YVETTE METOYER, MEKISHA S. CREAL, ERICA JEFFERSON, Assistant District Attorneys
    Before GARRETT, STONE, and BLEICH (Pro Tempore), JJ. '
   BLEICH, J. (Pro Tempore)

It This appeal arises out of the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Peter E. Haley, was convicted by a jury of one count of possession of pornography involving juveniles in violation of La. R.S. 14:81.1. Haley was subsequently sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served, to run concurrent with any other sentences. Haley did not file a motion to reconsider sentence and now appeals his conviction. For the following reasons, Haley’s conviction and sentence are affirmed, and this matter is remanded to the trial court for compliance with the sex offender registration requirements.

FACTS

On August 24, 2011, William Tuggle, supervising agent at the Louisiana Department of Corrections Division of Probation and Parole, received a voicemail message from an anonymous male caller indicating that Haley had been sending inappropriate text messages of a sexual nature to the caller’s mother. The caller indicated that the matter was serious enough that he and his mother were going to seek a restraining order against Haley. Agent Tuggle informed Haley’s parole officer, John Du-pree at the Caddo Parish Sherriff s Office, of the voicemail. Haley was contacted through his employer and asked to meet on the following morning. He arrived at the probation office around 7:00 a.m. on August 25, 2011. Agent Tuggle | ¡.testified that Haley was not under investigation when he arrived but was called simply to discuss the voicemail and determine if the complaint was well founded.

Agent Tuggle and Ofc. Dupree asked Haley about the text messages, and, according to both, Haley admitted he was acquainted with the woman and communicating with her via text messages. However, Haley was evasive about the content of the text messages and did not believe he had messaged anything inappropriate. Agent Tuggle asked to see Haley’s cellphone, and Haley told him that it was in the visor of his truck parked outside the building. Haley provided the keys to his vehicle, and Ofc. Dupree went to retrieve the cellphone while Agent Tuggle continued speaking with Haley. Officer Dupree returned to the office with Haley’s cellphone and laptop computer. He then handed the cellphone to Agent Tuggle and opened the laptop.

At trial, Ofc. Dupree testified that the laptop was in plain view inside Haley’s vehicle and was retrieved by him because laptops can also be used to send messages and text communications. He further testified that Haley voluntarily entered the passcode to allow access to the laptop. Officer Dupree stated that he clicked on the “pictures” icon, which revealed a “pornographic image that appeared to be a juvenile engaged in a sex act.” After seeing a couple of these images, Ofc. Dupree arrested Haley, who was advised of his Miranda rights and handcuffed. According to Ofc. Dupree’s testimony, the pictures on the laptop were observed before any incriminating information was located on the cellphone.

laFollowing Haley’s arrest, the U.S. Marshal’s Service and Bossier City Marshal’s Office were contacted to assist in the investigation. Sergeant Randal Thomas, a deputy marshal at the Bossier City Marshal’s Office Cyber Crimes Unit, advised that a search warrant should be obtained to further search the laptop. The warrant was secured based on the affidavit of Agent Tuggle, which allowed for the dismantling and copying of the laptop’s hard drive. In addition, later in the afternoon on August 25, 2011, a warrantless search of Haley’s residence was conducted to check for other parole violations, and a box of CDs was seized. The CDs were turned over to the Bossier City Marshal’s Office Child Internet Crimes Task Force, and found to contain several images that resembled child pornography.

Haley was charged by bill of information with one count of pornography involving juveniles. Counsel from the Indigent Defender Office was appointed to represent him, and Haley entered a plea of not guilty that same day. Haley filed both pro se and counseled motions to suppress evidence, and both motions were denied. A supplemental counseled motion to suppress was subsequently filed, and also denied following a hearing. The subject of each of the motions was the evidence obtained from Haley’s cellphone and laptop. Haley also filed a motion to exclude the testimony of pediatrician Dr. Margaret Ann Springer, which was denied following a Daubert hearing. Trial commenced on March 16, 2016, |4and the following day, the jury found Haley guilty as charged. Motions for new trial and for post-verdict judgment of acquittal were denied. Haley was sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served, to run concurrent with any other sentence. Haley filed a motion to appeal and the Louisiana Appellate Project was appointed as counsel. This appeal followed.

DISCUSSION

A counseled appeal brief has been filed on Haley’s behalf by the Louisiana Appellate Project, but additionally Haley has filed a supplemental pro se brief submitting seven assignments of error for review.

Motion to Suppress

In one of his assignments of error, Haley challenges the trial court’s denial of his motions to suppress the images obtained from his cellphone and laptop. Haley argues that the seizure of his laptop violated his Fourth Amendment protections, because the officers’ reasonable suspicion of a possible probation violation concerned only text messages on his cellphone. He submits that Ofc. Dupree’s clicking on the “picture’s icon” and looking at photographs on his laptop was outside the scope of any search that would Rhave confirmed the existence of inappropriate sexual text messages on his cellphone. Accordingly, Haley argues that the search of the laptop was illegal and, thus, all evidence seized from that illegal search should have been suppressed. We disagree.

An appellate court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Monroe, 49,365 (La.App. 2 Cir. 11/19/14), 152 So.3d 1011, 1015. The appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress, and should not overturn a trial court’s ruling unless the trial court’s conclusions are hot supported by the evidence, there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. Id.

An individual on probation does not have the same freedom from governmental intrusion into his affairs as does the ordinary citizen. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); State v. Malone, 403 So.2d 1234 (La. 1981). While a warrantless search is generally unreasonable, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under La. Const. art. I, § 5. State v. Angel, 44,924 (La.App. 2 Cir. 01/27/10), 31 So.3d 547. This reduced expectation of privacy allows reasonable warrantless searches of their person and residence by their probation or parole officer. State v. Malone, supra. That reduced expectation of privacy evolves from a probationer’s conviction and agreement to allow a probation officer to investigate his activities in order to confirm compliance with the provisions of his probation. State v. Angel, supra; State v. Drane, 36,230 (La.App. 2 Cir. 09/18/02), 828 So.2d 107, 111, writ denied, 2002-2619 (La. 03/28/03), 840 So.2d 566. This is to further the purposes of probation, rehabilitation of the convicted individual and protection of society and is a standard condition of probation that the probationer allow the probation officer to visit his home at the option of the officer. State v. Malone, supra; State v. Vailes, 664 So.2d 778 (La. App. 2 Cir. 1990).

While the decision to search must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search. State v. Malone, supra, State v. Odom, 34,054 (La.App. 2 Cir. 11/01/00), 772 So.2d 281. However, a probationer is not subject to the unrestrained power of the authorities. State v, Angel, supra. Even though warrantless searches by a probation or parole officer are allowed, a search to which a probationer is subjected may not serve as a subterfuge for a police investigation, but instead, must be conducted when the probation officer believes such a search is necessary in the performance of his duties and must be reasonable in light of the total atmosphere in which it takes place. Id., citing State v. Vailes, supra.

The Louisiana Supreme Court adopted the factors from Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447, 481 (1979), to determine if a warrantless search of a probationer’s home violated the probationer’s constitutional rights. The factors include: (1) the scope of the particular intrusion; (2) the manner in which it was conducted; (3) the justification for initiating it; and, (4) the place in which it was conducted. State v. Malone, supra at 1239.

17An “electronic textual communication” means a textual communication made through the use of a computer online service, internet service, or any other means of electronic communication. La. R.S. 14:81.3(D); State v. Green, 49,741 (La.App. 2 Cir. 04/15/15), 164 So.3d 331; see State v. Smith, 2015-1359 (La.App. 4 Cir. 04/20/16), 192 So.3d 836 (where communication with victim was reported as “text messages,” but actually occurred over an unidentified social media platform, rather' than mobile text messaging).

Relevant to the instant issue is the paroie agreement signed by Haley in Utah, wherein he agreed to obey all state, federal and municipal laws. He further agreed that he would “permit officers of adult probation and parole to search my person, residence, vehicle, or any other property under my control without a warrant at any time, day or night, upon reasonable suspicion.” The record reveals that in 2005 Haley completed the necessary paperwork to transfer his supervised parole to Louisiana, and the transfer was approved; thus Haley came under the supervision of the Louisiana Department of Corrections. Haley then signed a Louisiana probation and parole agreement, in which he waived his right to the same Fourth Amendment protections afforded other citizens and expressly waived his right to object to warrantless searches of his person, residence and belongings while under supervision. Accordingly, the issue herein- is simply whether there was a reasonable suspicion that Haley was violating his parole such that the search and seizure of his cellphone and laptop was proper.

The evidence presented at the hearings on the motions to suppress established that the officers had reasonable suspicion that Haley may have violated the'terms of his probation by sending inappropriate text messages of |Ra sexual nature making the search and seizure of his céllphone and laptop proper. Notably, the two parole agreements previously signed by Haley clearly state that he specifically agreed to searches of his person, residence, and belongings “for the purpose of ensuring compliance with the conditions of [his] parole.” At the time of the search, Haley voluntarily provided his car keys and assisted Ofc. Dupree in accessing his laptop, thus further consenting to the search. Haley maintains that the forensic analysis of his laptop indicated that no password was needed to gain access. Additionally, the state stipulated that no password was required. A close reading of the testimony makes clear that when the login screen appeared, Ofc. Dupree handed the laptop to Haley, who voluntarily did what was necessary to allow access—thereby consenting to the search of his laptop. However, his consent is not the only consideration since reasonable suspicion was already established, and Haley, as a parolee, had a lower expectation of privacy.

Additionally, Haley left his cellphone and laptop in plain view inside his vehicle. Both, the cellphone and laptop could have been utilized to send inappropriate electronic communications, as the term “text messages” encompasses many different types of textual electronic communications and is not limited to mobile text messaging, The trial court heard arguments twice on this motion and both times concluded that the officers were justified in conducting the search by reasonable manner and within a reasonable scope. Based on this record and the jurisprudence explaining the reduced expectation of privacy of probationers and parolees, the trial court was clearly within its discretion in denying the motion to suppress, and in finding that the officers had reasonable suspicion to search both the cellphone and laptop. This assignment of error is without merit.

| Sufficiency of the Evidence

In his second and fifth assignments of error, Haley submits that the evidence adduced at trial was insufficient to prove he committed the offense of possession of pornography involving juveniles. Haley also urges that due to the program malfunctions during Sgt. Thomas’s analysis of the laptop’s hard drive and cellphone the evidence recovered from the laptop is unfit to support a criminal conviction. Finally, Haley argues that the offensive photos found on his phone were “loaded” onto his phone on August 25, 2011, around 1:01 p.m., while his phone was in the officers’ custody.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the 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, 2001-1658 (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. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (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, 2005-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913.

An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299.

Where there is conflicting testimony concerning factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2 Cir. 09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La. 03/28/03), 840 So.2d 566 and 2002-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Baker, 49,175 (La.App. 2 Cir. 08/27/14), 148 So.3d 217. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ward, 50,872 (La.App. 2 Cir. 11/16/16), 209 So.3d 228.

_JjjAccording to Louisiana law, it is unlawful for a person to possess pornography involving juveniles. La. R.S. 14:81.1(A)(1). “Pornography involving juveniles” is any photograph, videotape, film, or other reproduction, whether electronic or otherwise, of any sexual performance involving a child under the age of seventeen. La. R.S. 14:81.1(B)(7).

On appeal, Haley argues that the evidence used to convict him was altered or fabricated. During the trial, Sgt. Thomas testified to establish the chain of custody of the cellphone and laptop recovered by Ofc. Dupree from Haley’s vehicle. A copy of Sgt. Thomas’s training and qualifications in computer forensics was entered into evidence along with his report and copies of the forensic data he recovered from Haley’s cellphone and laptop. During his testimony, Sgt. Thomas explained the process of analyzing confiscated electronics and showed a photograph to the jury of each step of this process taken during the analysis of Haley’s laptop. However, he did explain how the programs he uses to ensure electronic information is not altered, which include write-blocker and Cellebrite, sometimes malfunction or become outdated as technology progresses. He further explained the process he must then go through to accommodate for those instances when newer cellphones, like Haley’s cellphone was at the time of the investigation, are capable of holding more data than the Cellebrite program can process at one time.

Sergeant Thomas testified that some of the images recovered from Haley’s laptop and cellphone appeared to be pornography involving a juvenile. The jury was removed from the courtroom several times during the trial in order to accommodate Haley’s objections and claims that he had not previously viewed the images the state was attempting to enter into | ^evidence. Haley expressed concern that the browser history report showed that pornography websites were accessed while the phone was in officer custody. The report entered into evidence containing Haley’s web browser history from his cellphone does appear to show that some websites were visited while Sgt. Thomas was analyzing the cellphone. During his testimony, Sgt. Thomas explained that sometimes this can happen when he is attempting to extract data from a phone.

The record also indicates that Haley questioned Sgt. Thomas about the first page of an incomplete Cellebrite report which showed the program failed. Sergeant Thomas explained that the report page in question was from a Cellebrite report he tried to run, but could not finish, and he stated, “That’s one thing that is not great about Cellebrite, that if you see right here it says: Skip due to failure. So on here it shows that there were two failures. In order to get the full data for me to do anything with it the report has to finish.” Haley then asked Sgt. Thomas if the report ever finished, and he responded, “once I got back to the lab, and I tried different things.”

The fact finder, in this case the jury, must weigh the credibility of the witnesses when no contradiction exists between the direct evidence presented and the testimony of the witness. Here, Sgt. Thomas explained why these program failures occurred. Haley attempted to use the failed program printouts to show that evidence must have been fabricated. However, it was for the jury to determine if it was more probable that the inconsistencies in the reports existed, because, as Sgt. Thomas explained, it sometimes takes a couple of attempts to get information off of an electronic device.

| iaIn this matter, the evidence was sufficient to sustain the .conviction for possession of pornography involving a juvenile. The evidence indicated several attempts were made by Sgt. Thomas to recover the information from Haley’s cellphone and laptop,, but he was eventually successful in retrieving the images. The jury’s finding that Haley was in possession of child pornography was not unreasonable based on the direct evidence presented. This assignment of error is without merit.

Daubert Challenge

In Haley’s second counseled assignment of error, he asserts that the testimony, of the state’s expert, Dr. Springer, failed to meet the reliability standard set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Haley argues that the trial court erred in allowing Dr. Springer’s opinion because of her reliance on the Tanner stages in her analysis of the photographs in this case. We disagree.

Louisiana C.E. art. 702 provides that'a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert’s scientific, technical, or other' specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and, (4) the expert has reliably applied the principles and methods to the facts of the case, Pratt v. Culpepper, 49,627 (La.App. 2 Cir. 02/27/15), 162 So.3d 616. Before an expert’s testimony is admitted, the trial court is required to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is, not only relevant, but reliable.” Pratt v. Culpepper, supra, citing Daubert, supra.

This “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony. Pratt v. Culpepper, supra, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The Daubert nonexclusive list of factors by which to assess the reliability of an expert’s opinion include: (1) the “testability” of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and, (4) whether the methodology is" generally accepted in the scientific community. Pratt, supra at 626.

In Cheairs v. State ex rel. Dep’t of Transp. & Dev., 2003-0680 (La. 12/03/03), 861 So.2d 536, the Louisiana Supreme Court further specified that admission of expert testimony is proper only if all three of the following things are true: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and, (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Cheairs, supra at 542.

| ifiLouisiana R.S. 14:81.1(G) provides as follows:

In prosecutions for violations of this Section, the trier of fact may determine, utilizing the following factors, whether or not the person displayed or depicted in any photograph, videotape, film, or other video reproduction introduced in evidence was under the age of seventeen years at the time of filming or recording:
(1) The general body growth, bone structure, and bone development of the person.
(2) The development of pubic or body hair on the person.
(3) The development of the person’s sexual organs.
(4) The context in which the person is placed or the age attributed to the person in any accompanying video, printed, or text material.
(5) Available expert testimony and opinion as to the chronological age or degree of physical or mental maturity or development of the person.
(6) Such other information, factors, and evidence available to the trier of fact which the court determines is probative and reasonably reliable.

During the Daubert hearing, Dr. Springer testified that she'is a pediatrician at the clinical facility at Louisiana State University Hospital in Shreveport and has worked in pediatrics since 1991. Dr. Springer prepared a report in September 2012 after being presented with seven photographs provided to her by the Caddo Parish District Attorney’s office. In her report she specifically discussed three of the photographs: the first was described as an Asian female with a. sexual maturity level of Tanner II or III based on the size and contour of the developing female breasts; the second was described as depicting an erect male penis entering the vulva of a female child; and, the third was described as showing another female with breast development comparable to Tanner stages II to III. During the hearing, referencing the 11f,second photograph described (labeled picture 5), Dr. Springer was questioned:

Q: In your determination that is a female child, that wouldn’t actually have anything to do with the Tanner scale; is that correct?
A: No, sir. This is just what a baby girl looks like.
Q: So it’s just based off your expertise in pediatric medicine?
A: Yes, sir..

Dr. Springer stated she analyzed the photographs. at issue, in part, by applying the Tanner stages, which she explained are sexual maturity scales widely recognized as- a tool for determining normal growth patterns in children and adolescents. She further testified that the Tanner stages were devised by a British physician in the 1980s to aid in preventive medicine in pediatrics by statistical analysis of large numbers of children whose development was assessed, norms were determined, and a bell-shaped curve delineated the average development within an approximate age range. Dr. Springer went into great depth describing the five levels of Tanner stages in female development, with the first stage ending at the beginning of breast development and visible signs of puberty, which is considered Tanner II. She explained that growth rates vary based on nutrition,. social considerations, and ethnicity, but in the United States, female adolescents reach Tanner II between the ages of 9 to 13. According to Dr. Springer, Tanner III covers basically ages 13 to 14, and Tanner IV is the last stage before mature female, usually marked by the beginning of menstruation and the outer signs of puberty as the body becomes ready for childbearing, denoting Tanner V, the mature female stage.

| i7Pr. Springer clarified that the Tanner stages could not be used to pinpoint the specific chronological age of a female adolescent, but served to aid in the determination of a possible age range for a specific child based on identifiable signs of development. She also stated that she was unaware of any exact test regarding Asian females specifically. At the conclusion of the Daubert hearing, the trial court ruled that the methodology used by Dr. Springer to reach her conclusions—ie., the Tanner stages and her years of experience examining children—met the acceptable standard for reliability.

During the jury trial, Dr. Springer was accepted as an expert in pediatric medicine with no objection from Haley. She testified that, in addition to consulting the Tanner stages, she used “my expert knowledge of the way children grow and develop into teenagers and into adults” to arrive at her opinion that at least two of the photographs were images of children or adolescents and, thus, depicted child pornography. Dr. Springer was candid in her testimony, stating that she could not make an opinion as to the other five photographs due to various factors. However, she was clear that one of the photographs depicted a post-pubescent male penis, with pubic hair, and an open vulva of a child of less than school age based on the stage of development of the female genitalia. In another photograph, Dr. Springer noted that the young female was only as tall as the male’s waist and was “an elementary schooler probably.” In her trial testimony regarding these two photographs, Dr. Springer did not specifically reference the Tanner stages and was simply testifying from her vast experience in viewing and evaluating growing children.

Haley’s sole argument regarding this assignment of error is that the Tanner stages, one of the tools utilized by Dr. Springer in reaching her | ^conclusion regarding the sexual maturity, or lack thereof, of the girls in the images was unreliable under Daubert. Dr. Springer was admitted as an expert; therefore, it is permissible for her to given an opinion based on her own knowledge and experience. She described the Tanner stages as an “aid” devised by accumulated statistics in child development. Further, in accordance with La. R.S. 14:81.1(G), the jury is permitted to make determinations based on its own knowledge of the general development of sexual organs and body growth whether a juvenile under the age of 17 is depicted in the images in question. Nothing in the record shows that Dr. Springer based her opinion solely on the Tanner stages; therefore, Haley’s argument that the Tanner stages are not to be used for age determination in a criminal court is without merit. The trial court did not commit reversible error in concluding that Dr. Springer’s expert testimony met the reliability standard for admissibility in this matter.

Spoliation and Tampering with Evidence

In the first pro se assignment of error, Haley argues that Agent Tuggle either fabricated or spoliated evidence by not retaining a recording of the voicemail in which the caller complained of the inappropriate text messages that spawned this investigation.

Spoliation of evidence occurs when a litigant destroys, conceals or fails to produce evidence within his or her control. Grantham v. Eldorado Resort Casino Shreveport, 49,474 (La.App. 2 Cir. 11/19/14), 152 So.3d 1028, writ denied, 2014-2654 (La. 03/06/15), 160 So.3d 1290. This gives rise to an adverse presumption that had the evidence been produced, it would have been unfavorable to the litigant. Id.; Rodriguez v. Northwestern Nat’l Ins. Co., 358 So.2d 1237 (La. 1978); Acadian Gas Pipeline Sys. v. Nunley, 46,648 (La.App. 2 Cir. 11/02/11), 77 So.3d 457, writ denied, 2011-2680 (La. 02/10/12), 80 So.3d 487. The law is settled, however, that when the failure to produce the evidence is adequately explained, the presumption does not apply. Id.

Agent Tuggle testified that there was no recording made of the anonymous voice-mail message. Haley has failed to show that Agent Tuggle intentionally destroyed evidence. Further, Agent Tuggle provided a reasonable and adequate explanation as to why the voicemail was not recorded: the department of probation and parole gets numerous phone calls daily, and the officers do not routinely record them. Therefore, an adequate explanation was given as to why the voicemail message was not produced, and, as a result, there was no presumption in Haley’s favor.

Voir Dire

Following supplementation of the record with the jury voir dire, Haley’s appellate counsel filed a supplemental brief arguing that the trial court erred in denying challenges for cause as to two jurors: Jordan E. Young, who was a child victim of a sex offense, and Holly Fleming, who Haley claims exhibited a bias in child pornography cases. Haley’s pro se brief also sets forth assignments of error that appear to be connected to the voir dire process; namely, he questions whether the trial judge can speak to jurors and that one of the jurors should have been dismissed because of a bias concerning prior sexual abuse. We disagree with these arguments.

Louisiana Const. art. I, § 17(A) guarantees a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. Both the defendant and the state are given 12 peremptory challenges in trials of offenses punishable by death or necessarily by | apimprisonment at hard labor. La. C. Cr. P. art. 799. In addition to his constitutionally guaranteed peremptory challenges, a defendant may challenge a juror for cause on several grounds set forth in La. C. Cr. P. art. 797, which include, inter alia:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; or
(4) The juror will not accept the law as given to him by the court.

In a challenge for cause, the challenging party has the burden of showing that a prospective juror should be excluded based on one or more of the grounds in La. C. Cr. P. art. 797. State v. Hampton, 50,561 (La.App. 2 Cir. 05/18/16), 195 So.3d 548, 557. When a defendant must utilize a peremptory challenge to correct an error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana Constitution, is affected. Id.; see also State v. Monroe, 366 So.2d 1345 (La. 1978). In such instances, prejudice is presumed and automatic reversal of the conviction results. Id. citing State v. Campbell, 2006-0286 (La. 05/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). To warrant a reversal of a conviction and sentence, the defendant need only show: (1) the trial court erred in refusing to sustain a challenge for cause; and, (2) the defendant exhausted all of his peremptory challenges. La. C. Cr. P. art. 800; State v. Mickelson, 2012-2539 (La. 09/03/14), 149 So.3d 178.

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Tucker, 2013-1631 (La. 09/01/15), 181 So.3d 590, cert. denied, - U.S. -, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016), reh’g denied, - U.S. -, 137 S.Ct. 16, 195 L.Ed.2d 888 (2016). A trial court’s evaluation of the attributes required to qualify a prospective juror is entitled to great weight; accordingly, his exercise of the wide discretion that determination requires will not be set aside unless it is arbitrary and unreasonable. State v. Hampton, supra. A trial court’s refusal to disqualify a prospective juror is not an abuse of discretion or a reversible error if the perceived bias or impartiality of the prospective juror is properly remedied through rehabilitation. State v. Mickelson, supra. A prospective juror can be rehabilitated if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. State v. Hampton, supra.

Challenged Juror No. 1: Jordan Young

During general questioning, Young indicated that she had been a victim of a sexually related crime. During individual voir dire, Young informed the court that when she was “little” she was molested and was unsure of what happened legally to her abuser. Despite her experience, Young advised the court that it would not keep her from being fair, and she agreed that she could afford Haley the presumption of innocence. In denying Haley’s challenge for cause to Young, the trial court explained:

122The court does believe in the totality of her answers, I really think Ms. Young can be fair and impartial. I think that she was very matter of fact about having been the victim of an assault. She did not describe it as involving a pornographic recording of her or anything like that. And she showed really no inappropriate, profound or significant emotional response. She seemed very sincere that she can be fair. There’s simply nothing in her answers, the text or the words that she said that would make me believe she’s impartial (sic), and there was nothing in her demeanor that makes me think that she was being anything other than frank with the court, with the lawyers and with Mr. Haley. So while I can understand some concern I do not see any grounds to excuse Ms. Young for cause.

The individual voir dire transcript reveals a thoughtful and thorough questioning of Young by the trial court; thus denial of Haley’s challenge was clearly not arbitrary or unreasonable. The trial court was in the best position to view Young’s demeanor and tone while evaluating the potential for concern due to her childhood experience. Further, the trial court found no indication that Young was biased, impartial, or unwilling to be a fair juror. The transcript wholly supports the trial court’s ruling.

Challenged Juror No. 2: Holly Fleming

During questioning, Fleming advised the court that a high school friend was sexually victimized by a teacher who was later found not guilty. The trial court noted familiarity with the case that Fleming was referencing as one involving a high school coach allegedly having inappropriate sexual relations with students. Fleming stated that pornography depicting children is “sensitive and highly offensive material” to her.' The trial judge questioned Fleming as follows:

The Court: [D]o you think that you could separate however traumatic that experience may have been having a friend go through that, do you think that you could set aside that experience and focus on the evidence that you heard in this case as a juror?
Fleming: Yes.
| aaThe Court: Because I was a little concerned. You said based on that experience ... you said you couldn’t be fair because of that experience.
Fleming: Yes, I • did say that. And I guess it’s because even though they’re different, it seems like they’re different situations, it really boils down to me, power, using that power of adult/child. And that’s where I may have a problem where it gets blurry.
The Court: If I told you that, one, you would need to set aside that past experience, but two, that the State’s burden in this case is to prove again beyond a reasonable doubt simply the possession, not necessarily the manufacture, but the possession of something that they allege is pornography involving juveniles, could you force them to prove to you before you’d be willing to consider a guilty verdict that it was a knowing and intentional possession and that the materials were, in fact, pornography involving juveniles? In other words, what you’re telling me sounds like something that would be an issue in a case involving an allegation of creating or manufacturing that type of material as opposed to an issue of possession.
Fleming: I see, yes.

In denying the challenge for cause to Fleming, the trial court relied on her supplemental responses to questioning that indicated that she was fully capable of setting aside her' experience and focusing on the evidence presented at trial. The trial court noted Fleming’s calm demeanor and stated it heard nothing that indicated Fleming could not be a fair and impartial juror. Based on the totality of her answers, we find the trial court did not manifestly error in its ruling.

After a complete review of the supplemental transcript containing the jury voir dire, we find the trial court did not abuse its discretion in denying the challenges for cause to jurors Young and Fleming. Thus, these assignments of error are without merit.

| ^Closing arguments and the failure to transcribe

Haley has also complained that the district attorney made comments during closing arguments that were intended to “elicit an emotional response from the jury to attain a guilty verdict.” Specifically, Haley submits that the district attorney used Dr. Springer’s opinion as “fact” in the closing argument and referred to the “picture of that baby 15 to. 20 times” to evoke emotion in the jurors. He argues that it was improper for the district attorney to appeal to the conscious of the jury in closing argument. We, disagree.

The district attorney is afforded considerable latitude in making argument to the jury. State v. Wilson, 50,589 (La.App. 2 Cir. 05/18/16), 196 So.3d 614, 624. Further, a trial court has broad discretion in controlling the scope of closing arguments. Id., citing State v. Casey, 1999-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Even in the case of a prosecutor exceeding the bounds of proper argument, a reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict. Id.

The appellant must request transcription of that portion of proceedings necessary for review in light of the assignments of error to be urged or the issues are not renewable on appellate review. State v. Mims, 524 So.2d 526 (La. App. 2 Cir. 1988), writs denied, 531 So.2d 267 (La. 1988) and 569 So.2d 970 (La. 1990).

The record on appeal does not contain the transcript of the closing argument in question. By order of the First Judicial District judges, opening and closing arguments are not included in the record for appeal purposes, and Haley failed to request transcription of those arguments. However, |2HHaley refers to the emphasis placed on Dr. Springer’s testimony by the state in its closing argument and to statements he believes were intended to mislead the jury. It is assumed these allegations are based on his memory of the closing argument as those arguments have not been made a part of this record. Accordingly, this issue was not preserved for review.

ERRORS PATENT

The record reveals two errors patent. First, the trial court failed to provide Haley with verbal or written notice of his obligation to register as a sex offender. The defendant’s conviction for pornography involving juveniles is a sex offense as defined by La. R.S. 15:541 and therefore carries the requirements of sex offender notification and registration under La. R.S. 15:542 and 15:543. This record does not show that the trial court provided Haley with the forms or oral advice to which he is entitled. The matter is remanded solely for the purpose of compliance with these statutes. See State v. Hough, 47,308 (La. App. 2 Cir. 08/01/12), 103 So.3d 477, writ denied, 2012-1936 (La. 03/08/13), 109 So.3d 357.

Second, the penalty provision of La. R.S. 14:81.1, in effect in 2012, provided for a mandatory fine of not more than $10,000.00. Although the trial court’s failure to impose a mandatory fíne results in an illegally lenient sentence, this Court is not required to remand for imposition of a mandatory fine. State v. Dock, 49,784 (La. App. 2 Cir. 06/03/15), 167 So.3d 1097. The state has not urged the error, and Haley is not prejudiced by the trial court’s failure to impose the fine.

^CONCLUSION

For the reasons herein, the conviction and sentence of Peter E. Haley are affirmed. The case is remanded for the trial court to provide appropriate written notice to the defendant of all sex offender registration requirements and for a minute entry confirming that proceeding.

AFFIRMED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, MOORE, GARRETT, STONE and BLEICH, JJ.

Rehearing denied.

      . In accordance with La. C. Cr. P. 881.1(E), failure to make a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal; thus, Haley is precluded from appealing his sentence here.

      . At the time these events took place, Haley was on parole from convictions in the State of Utah for first degree rape and first degree forcible sodomy involving a juvenile.

      . It is probation office policy for offenders to leave cellphones in their vehicles during office visits.

      . Haley represented himself at trial with stand-by counsel, and he has raised no issue concerning his self-representation. Both the Louisiana and federal constitutions guarantee a criminal defendant's right to the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Campbell, 2006-0286 (La. 05/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Brooks, 452 So.2d 149 (La. 1984). A defendant may elect to represent himself if the choice is knowingly and intelligently made and the assertion of the right is clear and unequivocal. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Yates, 44,391 (La.App. 2 Cir. 07/01/09), 15 So.3d 1260.

      . In his final assignment of error, Haley argues that the trial court erred by speaking to jurors during deliberation but has not briefed or explained this assignment; thus it is incomplete and considered abandoned. URCA Rule 2-12.4(B)(4).

      . Haley sought supervisory review of the denial of his motion to suppress and this Court denied writs in No. 49,089-KW.

      . Use of the Tanner scale, developed by British pediatrician Dr. James Tanner in the 1980s", is acceptable in formulating an expert opinion as to the age of a child, as long as it is only one of a number of factors taken into account when reaching the expert opinion. See U. S. v. Pollard, 128 F.Supp.2d 1104, 1123 (E.D. Tenn. 2001); Henry F. Fradella, et al., The Impact of Daubert on Forensic Science, 31 Pepp. L. Rev. 323, 344 (2004).

      . This Court affirmed Haley’s previous conviction and sentence for failure to register as a sex offender in State v. Haley, 50,022 (La. App. 2 Cir. 06/24/15), 169 So.3d 804.