author: WICKER, J.

text:
    STATE of Louisiana v. Joshua LUCKEY
    NO. 16-KA-494
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Shannon K. Swaim, Sloan Abernathy
    COUNSEL FOR DEFENDANT/APPELLANT, JOSHUA LUCKEY Bruce G. Whittaker

      DEFENDANT/APPELLANT, JOSHUA LUCKEY In Proper Person
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   WICKER, J.

[ iDefendant, Joshua Luckey, appeals his convictions and sentences for two counts of sexual battery upon a known juvenile under the age of thirteen, in violation of La. R.S. 14:43.1. The district court granted defendant’s motion for appeal, and defendant’s appeal followed. Defendant has also filed a pro se supplemental brief. For the following reasons, we affirm defendant’s convictions and his sentences. Finding two errors patent reflected in defendant’s commitment order, we remand for correction of the commitment.

STATEMENT OF THE CASE

On April 3, 2013, the State charged defendant by bill of information with the sexual battery of a known juvenile, E.D. (D.O.B. 9/22/2005), in violation of La. R.S.14:43.1 (count 1) and with the sexual battery of a known juvenile, A.B. (D.O.B. 7/18/2008), in violation of La. R.S. 14:43.1 (count 2). The bill of information alleged that defendant committed both offenses on or between November 1, 2011 and February 3, 2013, when the juveniles were, at most, seven years old and four years old, respectively. Defendant was arraigned on these charges and entered a single plea of not guilty. Following a jury trial, the jury rendered a verdict of guilty on both counts on November 14, 2014. On February 9, 2015, the district court sentenced defendant to “[twenty-five] years on each count, those sentences to run consecutive to each other.”

On March 6, 2015, defendant filed a “notice of appeal” “from the final judgment entered by this Court on February 9th, 2015 [sic],” the date of defendant’s sentencing. Defendant did not indicate that he sought to appeal his conviction, which occurred on November 14, 2014. Several months later, defendant filed a pro se writ of mandamus with this Court because the district court had not yet granted him an appeal. This Court granted defendant’s writ of mandamus and | ^instructed the district court to enter an order granting defendant an appeal. The district court’s subsequent order reflects that defendant “sought to appeal his convictions and sentences, imposed February 9, 2015.” Although defendant did not explicitly seek review of his convictions in his March 6, 2015 notice of appeal, defendant’s sole counseled assignments of error and his three pro se assignments of error pertain only to his convictions, not to his sentences. Nevertheless, the Louisiana Supreme Court has recognized that appeals are favored in the law and has disapproved of the dismissal of appeals on “hypertechnical” grounds. State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271, 274 (citing State v. Bunnell, 508 So.2d 55 (La. 1987)). Accordingly, we will address defendant’s assignments of error concerning his conviction and will conduct a full errors patent review.

FACTS

After meeting on a dating website, the victims’ mother, B.B., and defendant became romantically involved in November 2011. According to B.B., who identified defendant in open court, the couple had plans to marry. In December 2011, defendant moved into B.B.’s aunt’s house in Marrero with B.B. and her children, L.D., E.D., A.B., and A.W. They then moved to another home in Marrero where they lived for approximately six months. Thereafter, defendant, B.B, and the children moved into a two-bedroom apartment on Barata-ría Boulevard. In this apartment, all of the children slept in one room on the opposite side of the apartment from the bedroom in which B.B. and defendant slept. The kitchen and the bathroom separated the two bedrooms.

Although B.B. acknowledged that defendant could be harsh with the children in terms of discipline, B.B. testified that the children loved him and that he would babysit them when she had something to do. She denied ever seeing | .¡defendant abuse the children, and she never observed any strange behavior that might suggest any issues with defendant and her children. B.B. testified that, in the weeks leading up to the day when the allegations came to light, she felt like defendant was hiding something from her and maybe was cheating on her.

According to B.B., on February 3, 2013, at about 7:30 a.m., she woke up, went into the kitchen of the Barataría Boulevard apartment, and saw defendant putting frozen fruit in a cup for her oldest daughter, E.D., who was seven years old at the time. When B.B. asked defendant “what was [E.D.] getting that for,” defendant responded that E.D. “had cleaned up the dog’s mess on the floor.” B.B. testified that, at the time, she thought nothing of it. Later that morning, as she cooked breakfast, her oldest son, L.D., helped her with the dishes. According to B.B., L.D. commented to her that “[E.D.] was a lucky bird because she always got all the hugs and kisses.” B.B. testified, “[T]hat set an alarm off in my head.” B.B. then approached E.D. to ask her if anything was wrong: “[S]he told me that Josh had been coming in her room at night and that she wasn’t getting any sleep and that he had been touching her. So I grabbed her by the arm, and I went into the room. And I grabbed my cell phone, and I dialed 911.”

Among the police officers who responded to B.B.’s call was Deputy Thelma Hill. Deputy Hill testified that, after speaking with B.B. who reported that E.D. told her “that Josh comes into their room at night and talks and feels on her,” she spoke with E.D., who explained to her that Josh comes in her room at night when she’s asleep and touches her on her vagina and sometimes places his finger in there.”. E.D. told Deputy Hill that the last time defendant came into her room was the previous night and that defendant agreed to give her a frozen treat if she agreed to hug him. E.D. explained to Deputy Hill that she complied but that defendant did not want to let her go when she wanted to leave. Deputy Hill testified that she also spoke with B.B.’s son, L.D., who told her that defendant comes into the children’s | .(bedroom at night “all the time” and talks “very low” to E.D. When Deputy Hill asked E.D. whether she had ever seen defendant’s private area, E.D. responded affirmatively, adding that “he shows it to her all the time.” E.D. reported to Deputy Hill that defendant has “some types of scars or designs on [his penis].” Thereafter, Deputy Hill confirmed with B.B. that defendant has “some type of implants or something on his penis.”

Detective Ronald David Ray, Jr., the lead investigator in this matter, also testified that E.D. reported to him at the scene that “Joshie had been touching her in what she termed her tu-tu.” When Detective Ray asked E.D. to explain “tu-tu,” E.D. pointed to her vaginal area. Detective Ray testified that E.D. also confirmed her statement about “the bumps” on defendant’s genitalia. Based on E.D.’s statement concerning unusual bumps or scarring on defendant’s penis, Detective Ray obtained a search warrant to take photographs of defendant’s person. Detective Ray testified that the photographs—which were admitted into evidence and published to the jury—reveal bumps on defendant’s penis in the shapes of a heart and a diamond.

At the scene, Detective Ray also interviewed E.D.’s older brother, L.D., who likewise confirmed that he would see defendant come into the children’s room at night and give E.D. lots of hugs. At the Detective Bureau, Detective Ray also spoke with defendant who denied any inappropriate touching but “did say that there may have been some inadvertent contact during playtime.” Although defendant maintained to Detective Ray that he gave E.D. the treat “because she had cleaned up some dog feces,” defendant also made the statement that he told B.B, “[Bjelieve your daughter.” In her testimony, B,B. confirmed that defendant made this statement to her: “I don’t understand why he told me believe my daughter, but he did tell me believe my daughter.”

|fiThe day after B.B. learned of E.D.’s allegations she felt compelled to ask her younger daughter, A.B., who was four years old at the time, whether “anything bad had ever happened to her, if anybody had touched her anywhere they wasn’t [sic] supposed to.” According to B.B., A.B. “kind of like put her head down and told [B.B.] that Joshie did'—Joshua, they called him Joshie at the time—that he did when [B.B.] was in the shower.”

Approximately two weeks later, on February 18, -2013, Dr. Jamie Jackson, a pediatrician with the Audrey Hepburn Care Center at Children’s Hospital, performed a sexual assault examination of E.D., which included an incident history- During this examination, E.D. explained, “He gave me frozen fruit for it.” When asked what “it” was, E.D. responded,

Uh never mind, I forgot because when, when my brother [L.D.] he flipped me over it hurt [sic]. And it hurt my brain .... Because the reason why I can’t remember lots of things when [L.D.] flipped, flipped me over on, from the skateboard it hurt half, parts of my brain and I can’t really remember stuff. It crunched up some a [sic] my file cabinets in here.

Nevertheless, the transcript from this examination reflects E.D. then explained to Dr. Jackson that defendant comes into hers and her siblings’ bedroom while everyone is sleeping: “He touches me and then I wake up, I go, I wake up and then I fall back asleep, and stay sleeping, and [sic] never comes back in there.” After E.D. referred to the place where defendant touched as her “too too,” she explained to Dr. Jackson that “too too” refers to her vaginal area: “He kept on digging his finger and li [sic], licking his fingers and digging it in there .... He like pulls down my pants, and then he pulls down my panties and touches [with his finger].” E.D. further explained that she would later experience pain when she tried to use the bathroom: “And then I wake up to use the bathroom, it burned so bad and I had to tell my mom, cause I can’t stand it. When he does that.” E.D. told Dr. Jackson that defendant did this to her “[m]ore, more than one time.” E.D. also described to | fiDr. Jackson how, more than once, defendant tried to make her touch his “bird” with her hand: “Like every time that he ma [sic], tried to make me do it, I tried to scream out to my mom, but he kept on doing that, and I, and I couldn’t talk .... [H]e was closing up my mouth so I couldn’t scream to my mom while she was sleeping.” When Dr. Jackson asked E.D. whether there was “anything that you noticed or saw like on his bird,” E.D. replied, “Like you know how wires look? .... It looks like he has wires inside his bird skin. Like four layers of it .... Like you know how wires are so fat? That’s how fat little lines on him [sic].” E.D. reported to Dr. Jackson that defendant told' her, “[I]t’s a secret between us and you may never tell.” In accordance with the State’s motion in limine pursuant to La. C.E. Art. 412, the State presented and the district court admitted a redacted version of the transcript and of the audio of this examination and incident history, which removed only references to unrelated past sexual abuse allegations E.D. made against a family member in another jurisdiction.

On March 1, 2013, Dr. Jackson also performed a sexual assault examination on E.D.’s younger sister, A.B. The State introduced the transcript and audio of this examination and published it to the jury. In her incident history, A.B. told Dr. Jackson that defendant is in jail because he touched her on her “tutu” with his hand. A.B. identified her “tutu” as being between her legs. A.B. explained it hurt when defendant did this, but she did not want to elaborate any further for Dr. Jackson.

At trial, the district court accepted Dr. Jackson as an expert in the field of child abuse pediatrics and delayed disclosure. Although Dr. Jackson testified that neither E.D. nor A.B. showed any definitive physical signs of abuse, Dr. Jackson opined that both E.D. and A.B. delayed disclosure of their sexual abuse, which is common in child victims of sexual abuse, and that E.D.’s and A.B.’s interviews and incident histories were consistent with those of children who have been [7sexually abused. Dr. Jackson explained that it is not uncommon for a young female child not to show physical signs of abuse, even after they reported penile-vaginal penetration by a full-grown male. Dr. Jackson pointed to a study in which only about six percent of girls around the age of seven who reported penile-vaginal or penile-anal penetration had specific findings of penetration. In her experience examining children, Dr. Jackson estimated that ninety to ninety-five percent of the children the Audrey Hepburn Care Center sees have normal or non-specific findings when they give a history of sexual abuse or penetration.

Around the same time, in late February 2013, E.D. and A.B. received evaluations at the Jefferson Children’s Advocacy Center. The State admitted videos of both of these interviews and published them to the jury. During this interview, E.D. told the interviewer that she did not remember why she had come that day, explaining that, during an incident on a skateboard, she “damaged up her brain a lot” where the bad memories were. A.B., on the other hand, testified that defendant touched the skin on her “tutu” and stuck his finger inside of it. Gesturing toward her genitalia, A.B. explained that defendant made her “tutu” hurt.

E.D. and A.B. also testified in person at trial. According to E.D., who was nine years old at the time of trial, defendant touched her “where he was not supposed to” and “in [her] private area” about four times, in her top bunk while her brother, L.D., and two sisters, A.B. and A.W., slept in the room with her. E.D. also testified concerning the distinctive markings on defendant’s penis, describing that defendant’s “weird thing” or “private part” had “little—like circles of wire on it.” However, when asked to identify defendant in the court room, E.D. explained, “Now I don’t see him. I forgot where I saw him at .... I don’t see him.” E.D. recounted that defendant touched her on her clothes and on her “tu-tu” but, when asked, she stated she did not know if defendant stuck his finger inside of her. A.B., who was six years old at the time of trial, testified that she does not like defendant 18beeause “he did something bad to [her, E.D., and L.D.].” When asked what defendant did to them, A.B. responded that he “touched like our private parts.” Although she testified that defendant touched underneath her clothes, A.B. denied that he put something inside of her. A.B. maintained that this occurred one time when , she was four years old and that defendant touched her between her legs while she was in her mom’s and defendant’s bedroom. Like E.D., A.B. also could not identify defendant in court but testified she was four years old the last time she saw him.

After the State rested, defendant testified that he never touched E.D. and A.B. inappropriately. Although defendant admitted that he had implants inserted in his penis to “pleasure” females, he denied every exposing himself to E,D. Rather, he argued that E.D. must know about the implants from her mother, B.B., to whom he had sent naked pictures prior to moving in with her.

Defendant also recalled B.B. to the stand to question her about the extent of her contact with defendant following his arrest. Although initially B.B. denied speaking to defendant in any way—“[n]ot by phone, not by letter, no”—B.B. eventually admitted that she wrote a letter, dated August 31, 2013, to defendant that she mailed through his mother. Thereafter, B.B. vigorously asserted that this was the only letter she had ever written defendant. Defendant then introduced a second letter from January 8, 2014, in which B.B. failed to reference the sexual abuse charges and wrote, “I want our family back but you have to prove to me no other bitches! I hope you can forgive me! I never wanted none of this!” Although B.B. testified she initially did not remember writing the letter, she identified the handwriting as her own and recalled writing the letter as she read it.

On rebuttal, the State offered the testimony of Arturio Rodriguez, who testified remotely via WebEx, a program for transmitting two-way live video. Mr. Rodriguez, an inmate at David Wade Correctional Center serving a forty-year [9sentence for two counts of forcible rape and convictions for carnal knowledge of a juvenile and aggravated burglary, initially testified that he told his lawyer that defendant had fabricated the January 8, 2014 letter to make it appear like it had come from B.B. On cross-examination, however, Mr. Rodriguez admitted that he was lying when he gave this information to the district attorney because he had hoped to get a more favorable plea deal.

DISCUSSION

Assignment of Error 1 and Pro se Assignment of Error 3

In his only counseled assignment of error and in his third pro se assignment of error, defendant argues that the State violated his Sixth Amendment right to confrontation and a public trial- when, subject to cross-examination by defendant, it presented the testimony of rebuttal witness, Arturio Rodriguez, via WebEx, a video program for transmitting two-way live video. Because of this video testimony, defendant argues that he could not confront “face-to-face” the witnesses against him and that the physical absence of the witness from the courtroom denied defendant the light to a public trial.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witnesses against him. The Confrontation Clause of the Louisiana Constitution specifically and expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. Art. I, § 16; State v. Robinson, 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Id. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id.; State v. Williams, 1004-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La. 4/22/05), 899 So.2d 559.

In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, the United States Supreme Court addressed the issue of whether the federal Confrontation Clause precluded a child witness in a child abuse case from testifying against a defendant at trial outside the defendant’s physical presence, by one-way closed circuit television. There, the defendant argued that the Sixth Amendment required “face-to-face” confrontation and that anything less failed to satisfy the constitutional guarantee. Although the Craig Court acknowledged that the Confrontation Clause guarantees defendant a “face-to-face meeting with witnesses appearing before the trier of fact,” the Court recognized that it has never held that “the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.” 497 U.S. at 844, 110 S.Ct. at 3163. Rather, “the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849,110 S.Ct. at 3165 (internal citations omitted). That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. Id. at 850, 110 S.Ct. at 3166. A defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial (1) only where denial of such confrontation is necessary to further an important public policy and (2) only where the reliability of the testimony is otherwise assured. Id. The requisite finding of necessity must be a case-specific one. Id. at 855, 110 S.Ct. at 3169. Under Craig, it is the State’s burden to make an adequate showing of necessity. Id. (“[W]e hold that, if the State makes an adequate showing of necessity, the State interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that | ^permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.”).

Here, the State did not make any showing of necessity, and the record reveals no grounds upon which the district court could have reasonably reached the conclusion that denial of confrontation is necessary to further an important public policy. The State argues that the district court relaxed the confrontation requirement because the State called Mr. Rodriguez unexpectedly and the court did not wish to delay the trial for the time required to issue a writ for Mr. Rodriguez’s appearance, for prison officials to arrange sufficient security for the transport, and for officials to transport Mr. Rodriguez from the correctional facility in north Louisiana to the Twenty-Fourth Judicial District Court. Given that the United State Supreme Court determined that Maryland’s interest in protecting the well-being of child abuse victims “may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court,” we decline to find that the State’s interest in a slightly swifter resolution of this case rises to the level of an important public interest that would justify the denial of confrontation. Id. at 853, 110 S.Ct. at 3167 (emphasis added). Because the procedure utilized by the district court denied defendant his right to “face-to-face” confrontation, because the State failed to advance any important state interest, and because the district court failed to make a case-specific finding of necessity as required by Craig, we find that district court’s decision to permit Mr. Rodriguez to testify via WebEx, even subject to cross-examination, violates defendant’s Sixth Amendment Confrontation Clause rights.

| ^Nevertheless, a violation of'a defendant’s right to confrontation is subject to a harmless error analysis. State v. Placide, 11-1061 (La.App. 5 Cir. 6/28/12), 109 So.3d 394, 399-400; State v. Merwin, 07-807 (La.App. 5 Cir. 4/15/08), 984 So.2d 842, 846. An error is harmless when the guilty verdict was surely unattributable to the error. Whether an error is harmless in a particular case depends upon many factors, including the following: (1) the importance of the witness’ testimony; (2) whether the testimony was cumulative in nature; (3) whether corroborating or contradictory evidence regarding the major points of the téstimony existed; (4) the extent of cross-examination permitted; and (5) the overall strength of the State’s case. Id. at 846.

Here, the State presented Mr. Rodriguez’s rebuttal testimony to discredit defendant’s theory that B.B. wrote apology letters to him for falsely accusing him while he was in jail. Given B.B.’s admission that she penned the letters at issue, Mr. Rodriguez’s testimony had very little importance, as the State’s own witness corroborated Mr. Rodriguez’s ultimate testimony that defendant did not seek to fabricate the letters. ■ Further, Mr. Rodriguez’s testimony was cumulative on the point for which the State originally offered it as- Cynthia Cimino, Mr. Rodriguez’s attorney, also testified that defendant sought to fabricate letters from ■ B.B, to claim his innocence and testified as to what the fabricated letter would contain. Thus, independent of Mr. Rodriguez’s testimony, the State presented face-to-face testimony regarding the letters despite the fact that Mr. Rodriguez recanted his testimony. Moreover, despite the face-to-face confrontation violation, defendant received the opportunity to thoroughly and effectively cross-examine Mr. Rodriguez. Finally, the State presented a very strong case, including the victims’ trial testimony, photographic evidence corroborating one of the victim’s stories, and the testimony of the State’s expert in child abuse pediatrics and delayed disclosure who testified that, in her opinion, E.D. and A.B. had been sexually |1sabused. Taken together, this evidence proves beyond a reasonable doubt that defendant was guilty of sexual battery of a known juvenile under the age of thirteen with respect to E.D. and A.B. Based on the foregoing, we find that any violation of defendant’s right to confrontation by erroneous admission of Mr. Rodriguez’s testimony via WebEx was harmless error unattributable to the guilty verdicts.

Additionally, defendant argues that his right to a public trial was denied when Mr, Rodriguez testified via WebEx because the public could not see Mr. Rodriguez during his testimony. La. C.Cr.P. Art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La. C.Cr.P. Art. 841(A) requires a party to make known to the court “the action which he desires the court to take, or of his objections to the action of the court, and the grounds thereof.” State v. Videau, 13-520 (La.App. 5 Cir. 12/27/13), 131 So.3d 1070, 1085, writ denied, 14-212 (La. 9/12/14), 160 So.3d 965.

In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. Id.; State v. McClain, 04-98 (La.App. 5 Cir. 6/29/04), 877 So.2d 1135, 1144, writ denied, 04-1929 (La. 12/10/04), 888 So.2d 835. A new basis for an objection may not be raised for the first time on appeal. Id. (citing State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La. 3/19/04), 869 So.2d 849). The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. Id. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. Id.

|uAt no time prior to, during, or subsequent to Mr. Rodriguez’s testimony did defendant lodge an objection on the basis that his right to a public trial was violated. Rather, he raises it as a new basis for the first time in this appeal. Therefore, defendant’s argument regarding his right to a public trial was not preserved for appellate review.

Pro Se Assignment of Error 1

In this pro se assignment of error, defendant argues that the trial court erred in permitting the State to present the testimony of the victims, E.D. and AB., without a competency hearing. Defendant contends that neither victim could identify him in court, and he 'asserts that they could not comprehend the difference between a lie and the truth. Therefore, he argues that he was denied his “Sixth Amendment Rights of Due Process,” which entitles him to a new trial.

Every person of proper understanding is competent to be a witness except as otherwise provided by legislation. La. C.E. Art. 601. “Understanding, not age, is the test of competency for any witness.” State v. Foy, 439 So.2d 433, 435 (La. 1983); State v. Chester, 14-540 (La. App. 5 Cir. 11/25/14), 165 So.3d 1006, 1009. A vital determination to be ascertained is whether the witness understands the difference between the truth and falsehoods. Id. The competency of a child to testify as a witness is based not only on the child’s answers to questions testing his understanding but also on the child’s overall demeanor. Id. A child’s sometimes hesitant or unresponsive answers do not necessarily indicate ihcompetency. Id.; State v. Humphrey, 412 So.2d 507, 516 (La. 1982). Those answers may be part of an overall demeanor in the unfamiliar- courtroom experience which favorably reflects testimony only as to what is clear to the child. Chester, 165 So.3d at 1009.

A trial court’s, determination on the competency of a child to testify is entitled to great weight on appeal because the trial court judge has the crucial | ^advantage of seeing and hearing the child. State v. Troulliet, 94-183 (La.App. 5 Cir. 9/14/94), 643 So.2d 1267, 1270 (citing State v. Foy, 439 So.2d 433, 435 (La. 1983)). The trial court judge is vested with wide discretion in determining the competency of the child witness and his ruling will not be disturbed on appeal, absent manifest abuse of discretion. Chester, 165 So.3d at 1009.

During trial, the State called E.D. and A.B. as witnesses. Defense counsel objected to E.D.’s competency on the basis of her age and her failure to identify defendant in court, which the trial judge noted for the record. As to A.B., defense counsel was mid-objection when he was interrupted by the trial judge, who commented, “Yeah. I’m going to give them a little bit longer to try to develop that, but I note your objection for the record.” Therefore, defendant’s objection only preserved his right for appellate review as to the competency of the witnesses. He has waived his right to review for any alleged Confrontation Clause or due process errors.

When asked to identify defendant in the courtroom, E.D. responded, “I forgot where I saw him at .... I don’t see him.” She reported that she is nine years old and that her birthday is September 22. She answered questions regarding the name of her school and her grades. When questioned by both the State and defense counsel, she testified repeatedly that she knew the truth from a lie and that she was telling the truth.

A.B. also could not identify defendant in court and testified via a hypothetical that the truth is good and lies are bad. A.B. testified that she attends school “on the west bank” and that, she is in first grade. She could also provide the name of her teacher. A.B. further testified that she is six years old and that her birthday is in a “hundred” days. A.B. also provided the names and ages of her four brothers and sisters. •

|1BIn our view, the district court did not abuse its discretion in finding that E.D. and A.B. were competent to testify as witnesses. Although E.D. and A.B, failed to readily identify defendant in court, both appeared to understand the questions asked of them. Despite their young ages, they were both coherent and responsive to the questions asked and both indicated that they knew the difference between the truth and lies. Accordingly, we find that this assignment of error is meritless.

Pro Se Assignment of Error 2

In his second pro se assignment, defendant asserts that the State admitted and published to the jury the redacted/altered tape and transcripts of E.D.’s interview at the Audrey Hepburn Care Center in violation of La. R.S. 15:440.5(A)(3). Defendant argues that the admission of this evidence also denied defendant his rights to confrontation and to present a defense. Defendant contends that these rights were violated because defense counsel could not elicit testimony on cross-examination regarding previous sexual abuse allegations made by E.D. Further, defendant asserts that the State failed to comply with the strict statutory requirements of establishing the tape as competent and admissible evidence at trial.

During pre-trial, the State filed and the trial judge granted a motion in limine in accordance with La. C.E. Art. 412 to prevent testimony as to previous accusations of abuse made by the victim against a relative in another jurisdiction. In compliance with the district court’s ruling on the motion in limine, the State edited the Audrey Hepburn Care Center audiotape and redacted the transcript to eliminate any reference to these prior accusations. At trial, defense counsel objected on the grounds that the documents and the audiotape were “manipulated/’ and “according to the statute, the use of these documents and this information is supposed to be restricted and only allows unredacted or unmanipulated documents....”

IitAs an initial matter, defense counsel did not object to the admission of this audio and transcript on the Confrontation Clause or Due Process bases he now raises for the first time on appeal. Accordingly, defendant has waived review of this alleged error on those bases. La. C.Cr.P. Art. 841.

The Louisiana Supreme Court has considered several factors, derived from United States v. Starks, 515 F.2d 112 (3d Cir. 1975), when determining whether a party has established a foundation for the admissibility of an audio recording. See State v. Hennigan, 404 So.2d 222, 236 n.7 (La. 1981). Although the Supreme Court has never held that the establishment of each of these facts is necessary for the admission of audio recordings, we consider the following factors helpful in reviewing whether the State properly laid a foundation for the admissibility of the redacted audio recording of Dr. Jackson’s interview with E.D.:

(1) That the recording device was capable of taking the conversation now offered in evidence.
(2) That the operator of the device was competent to operate the device.
(3) That the recording is authentic and correct.
(4) That changes, additions or deletions have not been made in the recording.
(5) That the recording had been preserved in a manner that is shown to the court.
(6) That the speakers are identified.
(7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

Starks, 515 F.2d at 122 n.11; see State v. Jones, 45,429 (La.App. 2 Cir. 8/11/10), 46 So.3d 756, 762. Dr. Jackson testified that the incident history she conducted with E.D. was recorded on a C.D. and that the C.D. accurately reflected the conversation she had with E.D. Dr. Jackson also testified that, during E.D.’s interview, she and E.D. were the only individuals in the room. The State demonstrated that the conversation was voluntary and in good faith when it elicited |18testimony from Dr. Jackson that she took E.D.’s incident history “for medical diagnosis and treatment so that [she knew] what things [she] need[ed] to do, what may have touched what, what type of testing, .. .what other things [E.D. and A.B.] may be at risk for.” Although defense counsel objected to the admission of a redacted version of this interview, we do not find the district court erred in permitting the State to use the redacted version of the interview against the defendant. Under La. R.S. 15:450, “Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.” After reviewing and comparing the original transcript of E.D.’s Audrey Hepburn Care Center interview and the redacted version the district court admitted into evidence at trial, we find that the district court did not abuse its discretion in finding that the State properly laid the foundation for the admission of this evidence and in denying defendant’s request to admit the entirety of E.D.’s statement. The redacted version of the interview accurately reflects E.D.’s statements to Dr. Jackson. The only portions removed from the audiotape concern past sexual behavior of a sexual assault victim excluded in accordance with La. C.E. Art. 412. Moreover, defendant had ample opportunity to question E.D. concerning the charged offenses during cross-examination. Under these circumstances, we do not find the district court abused its discretion in admitting the redacted audiotape of E.D.’s interview. Accordingly, we find this assignment of error meritless.

j, «ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. G.Cr.P. Art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals that there are errors patent in this case.

First, defendant was arraigned on April 5, 2013, and according to the minute entry, it appears he entered a single plea of not guilty rather than a guilty plea on each count. La. C.Cr.P. Art. 555 provides, in pertinent part: “A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” State v. Lawrence, 08-1317 (La. App. 5 Cir. 2/18/09), 6 So.3d 912, 916, writ denied, 09-790 (La. 12/18/09), 23 So.3d 932. The record does not reflect that defendant objected to this error. Therefore, we find that defendant waived this error, and no corrective action is necessary.

Second, defendant was charged on counts one and two with sexual battery of a juvenile under the age of thirteen in violation of La. R.S. 14:43.1, where the offense was alleged to have been committed on or between November 1, 2011, and February 3, 2013. At the time of the offense, the punishment was, as follows: “imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years [with at] least twenty-five years of the sentence imposed ... without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:43.1(0(2) (emphasis added). According to the transcript, the district court imposed defendant’s sentences on count one and count two without designating that the sentences must be served at hard labor. The commitment, however, reflects that the sentences were to be served at hard labor. Generally, when the transcript and commitment are inconsistent, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Nevertheless, because the underlying statute, La. R.S. 14:43.1, requires that the sentences were to be served at hard labor, allowing 120no discretion to the trial judge, the error is harmless and requires no corrective action. See State v. Tillery, 14-429 (La.App. 5 Cir. 12/16/14), 167 So.3d 15, 29, unit denied, 15-106 (La. 11/6/15), 180 So.3d 306 (finding that because the underlying statute required the sentence to be served at hard labor, the trial judge’s failure to state three life sentences were at “hard labor” was harmless error which required no corrective action).

Third, neither the commitment nor the transcript indicates that the trial judge ordered at least twenty-five years of the sentences imposed to be served without benefit of parole, probation, or suspension of sentence in compliance with La. R.S. 14:43.1(0(2). La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. Given the self-activating nature of the benefits provision, we find no need to take corrective action concerning the trial court’s failure to specify that defendant’s consecutive sentences of twenty-five years on two counts of sexual battery were to be served without benefit of parole, probation, or suspension of sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-800; State v. Rainey, 14-664 (La. App. 5 Cir. 12/16/14), 167 So.3d 94, 96 (given the self-activating nature of the benefits provision, this Court found no reasons to correct the trial court’s omission to specify the defendant’s sentences were to be served without benefit of parole, probation, or suspension of sentence).

Finally, review of the record reveals that the trial court failed to inform defendant of the prescriptive period for seeking post-conviction relief. This Court has corrected this error patent by way of its opinion. See State v. Do, 13-290 (La.App. 5 Cir. 11/19/13), 130 So.3d 377, 394, writ denied, 13-2907 (La. 6/20/14), 141 So.3d 285; State v. Ramsey, 10-333 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ 21denied, 09-158 (La. 10/16/09), 19 So.3d 473. Accordingly, we advise defendant by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. Arts. 914 or 922.

DECREE

For the foregoing reasons, we affirm defendant’s two convictions for sexual battery of a known juvenile and his two consecutive sentences of twenty-five years imprisonment at hard labor in the Department of Corrections. We remand this matter for correction of the commitment order to reflect that defendant’s consecutive sentences are to be served at hard labor without benefit of parole, probation, or suspension of sentence.

AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.

      . In Louisiana, the Legislature has enacted a procedure by which a Louisiana court can order that the testimony of a "protected person” be taken without “face-to-face” confrontation when the court has made a specific finding of necessity. See La. R.S. 15:283; La. R.S. 15:440.1-15:440.6. Under La. R.S. 15:440.2 a "protected person” is "any person who is a victim of a crime or a witness in a criminal proceeding and who is either...(1) [u]nder the age of seventeen years [or] (2) [h]as a developmental disability as defined in R.S. 28:451.2(12).” See also La. R.S. 15:283 (E). Mr. Rodriguez is not a “protected person” as defined by La. R.S. 15:440,2 or La. R.S, 15:283(E). Accordingly, the procedures enumerated in R.S. 15:283 and R.S. 15:440.1, et seq., do not apply in this case.

      . Defendant argues that the district court should have excluded this audiotape pursuant to La. R.S. 15:440.5. La. R.S. 15:440.5 provides constitutional safeguards for a defendant’s right to confrontation with respect to the admission of videotaped statements. We find that the requirements of La. R.S. 15:440.5 are inapplicable to this case because the redacted "tape” to which defendant refers was an audiotape of E.D.’s Audrey Hepburn Care Center interview. The State did not seek to enter a videotape of this interview.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Michael Louis MORGAN, Sr. v. Diana D. MORGAN
    NUMBER 2016 CA 0964
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 17, 2017

      Mark Alan Jolissaint, Slidell, LA, Attorney for Appellee Plaintiff-Michael L. Morgan, Sr.
    Gary J. Williams, Slidell, LA, Attorney for Appellant Defendant-Diana D. Morgan
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

| ¡¿Diana D. Morgan appeals a judgment of supplemental partition of the community interest in her defined benefit pension plan through the Teacher’s Retirement System of Louisiana (“TRSL”). For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of this case is more fully set forth in our earlier opinion, Morgan v. Morgan, 2013-0681 (La.App. 1 Cir. 12/27/13), 2013 WL 6858250 (unpublished). In sum, the parties were married in 1980 and had four children during their marriage. On June 28, 1999, Michael Morgan filed a petition for divorce and the parties were subsequently divorced on October 4, 2001. Thereafter, on December 5, 2008, the parties entered into a stipulated judgment of partition of community property, which provided that the employment pension plans of both parties would be divided in accordance with the formula set forth in Sims v. Sims, 358 So.2d 919 (La. 1978). During the marriage, Diana Morgan was employed as a teacher by the St. Tammany Parish School Board and was a member of TRSL. In furtherance of the stipulated judgment of partition, a division order with respect to Diana Morgan’s benefits with TRSL was signed by the trial court on March 24, 2011. Morgan, 2013-0681 at p.1.

On September 20, 2012 Diana Morgan filed a petition for supplemental partition of her pension, asserting that the stipulated judgment and division order [¡/partitioning her retirement benefits were incomplete and erroneous. According to Diana Morgan, she was “forced” to take disability retirement, but had been unable to receive her disability benefits because the division order did not differentiate between disability benefits and retirement benefits. Therefore, she sought to have the TRSL division order supplemented or clarified to provide that Michael Morgan was entitled to receive only his percentage portion of Diana Morgan’s retirement benefits, reserving unto her the right to receive her disability benefits. Michael Morgan responded by filing a peremptory exception raising the objections of prescription/per-emption, no cause of action, and res judi-cata; and a declinatory exception raising the objection of lack of subject matter jurisdiction. The trial court sustained the peremptory exceptions and dismissed Diana Morgan’s petition for supplemental partition, and Diana Morgan appealed to this Court. Morgan, 2013-0681 at pp. 1-2.

On appeal, this Court reversed the trial court’s ruling on the peremptory exceptions, finding that Diana Morgan had stated a cause of action for supplemental partition and/or declaratory judgment regarding her disability benefits, that her action was neither prescribed nor per-empted, and that her action was not barred by res judicata because Michael Morgan failed to prove that he and Diana Morgan clearly intended that her disability benefits would be included in the stipulated judgment partitioning the community property. Morgan, 2013-0681 at pp.2 and 6. Thus, Diana Morgan’s defined benefit pension plan with TRSL was subject to a supplemental partition.

Following this Court’s decision in Morgan, the supplemental partition of Diana Morgan’s TRSL benefits was submitted to the trial court for a decision based upon a joint stipulation of facts and applicable law and the memoranda filed |4by the parties, including the exhibits attached thereto. For purposes of the supplemental partition, the parties stipulated to the following:

Michael Morgan and Diana Morgan were married on November 22, 1980, and their community was terminated on June 28, 1999. From 1986 through 1996 and from 2001 through 2011, Diana Morgan was on “active service” with TRSL. From 1995 through 2001, Diana Morgan was on disability retirement with TRSL; four of those six years of disability retirement (1995-1999) were during the community.

Diana Morgan finally retired in December 2011 at age 52. At that time, she had 19½ years of active service. However, since Diana Morgan returned to active service for at least three years after her disability retirement, her six years of disability retirement (1995-2001) were credited to her account as active service years for purposes of determining her eligibility for regular service retirement. Therefore, at the time of Diana Morgan’s retirement in December 2011, she was credited with 25½ years of service for purposes of determining her eligibility for regular service retirement (instead of 19½ years); however, the six years of disability retirement were not credited to her for the calculation of her retirement benefits, which was based on 19½ years of active service. When Diana Morgan retired in December 2011, she took disability retirement and began receiving a monthly benefit of $2,325.00, which benefit was based on a 2.5% multiplication factor, as well as a benefit for her minor child in the amount of $1,162.00 per Rmonth. However, Diana Morgan’s disability retirement was immediately converted by TRSL to a regular service retirement since she was eligible for a regular service retirement because she had more than twenty years of creditable service; the conversion of her retirement did not change the amount of her benefits. Instead, the effect of the conversion was to free Diana Morgan from the obligations to submit to a periodic medical examination and provide a notarized annual income statement, which is generally required of disability retirees, and the limitation on being employed in the education field.

In December 2011, with only 19½ years of active service, if Diana Morgan did not have the accredited disability service, she would not have been eligible for regular service retirement at the age of 52; she would have been eligible for regular service retirement at age 60 (on September 17, 2019) (because she had at least five years of accredited service) using a 2% factor with a monthly benefit of | ^approximately $1,860.00. In December 2011, with 23½ years of eligible service (attributing the four years of disability retirement during the community to retirement eligibility), Diana Morgan was immediately entitled to |7regular service retirement using a 2% factor with a monthly benefit of approximately $1,860.00. In December 2011, with 25½ years of eligible service (attributing all six years of disability retirement to eligibility), Diana Morgan was immediately entitled to regular service retirement using a 2% factor with a monthly benefit of approximately $l,860.00.

At issue in the supplemental partition of Diana Morgan’s TRSL benefits was the six years that Diana Morgan was on disability retirement (1995-2001), which, following her return to active service for three years, made her eligible for a regular service retirement at age 52 rather than age 60. Michael Morgan contended that the disability retirement years later credited to Diana Morgan toward her retirement eligibility should be considered eligibility for regular service retirement regardless of whether they occurred during the community or after the community. Further, he maintained that the four years of disability retirement that Diana Morgan accrued during the community (1995-1999) were community property (as were the disability benefits that Diana Morgan received during that time) and that he was entitled to the eligibility benefit of those four years. Diana Morgan contended that Michael Morgan was not entitled to any benefit whatsoever from the enhancement of her retirement based on her disability, including attributing the four years of disability retirement during the community towards her eligibility for regular service retirement, because the enhancement was due to her disability and her active service years after the termination of the community.

Based on the stipulated facts and law, the trial court issued written reasons for judgment finding “that the years of disability retirement [that Diana Morgan] accrued during the marriage [were] her separate property and [that Michael Morgan was] ... not entitled to a portion of it.” In reaching this determination, the trial court noted that “[t]he basis for TRSL calculating the amount of [Diana Morgan’s] benefit is based upon years that she returned to work after the Petition for Divorce was filed (¡Le. post-separation or separate property),” that Michael Morgan was “not entitled to a portion of any benefit paid to [Diana Morgan] as a result of her post-separation contribution,” and that Diana Morgan’s “post-separation contribution is her return to work for at least three (3) years.” The trial court then concluded that Michael Morgan’s Sims formula share of Diana Morgan’s TRSL retirement was “23% of 19½ years and that [Michael Morgan] does not begin to receive the 2% disability benefit increase until [Diana Morgan’s] sixtieth birthday (September 17, 2019).”

After the trial court issued its reasons for judgment, the parties disagreed over the interpretation of those reasons for judgment. Therefore, the parties filed a joint motion for clarification of the reasons for judgment. Michael Morgan interpreted the reasons for judgment as ordering: (1) that he was entitled to his share of benefits retroactive to December 2011; (2) that he would receive 23% of the community-portion of those benefits, past and future, calculated on a 2% factor, with Diana Morgan to receive the difference between the regular service retirement benefits ($1,861.00) and the disability retirement benefits ($2,325.00) until her 60th birthday; and (3) that when Diana Morgan reached 60 years of age, he would receive 23% of Diana Morgan’s benefit (on the 2½%) factor, not including any amount she would receive for their minor child. On the other hand, Diana Morgan ^interpreted the reasons for judgment as ordering: (1) that Michael Morgan’s Sims formula share of her retirement benefits under TRSL was determined to be 23%, which is ⅛ of the community portion, with the community portion being 9 years of community service divided by 19½ years of total service; (2) that Michael Morgan would receive 23% of a 2% retirement benefit, (rather than Diana Morgan’s disability enhanced 2½% retirement benefit) beginning on September 17, 2019, the date upon which Diana Morgan turns 60 years of age; and that (3) Diana Morgan’s entire benefit prior to her 60th birthday and the permanent extra ½% benefit amount are determined to be her separate property, resulting from her service after the termination of the community, of which Michael Morgan would receive no share.

Thereafter, the trial court signed a judgment providing: (1) that Michael Morgan be recognized as an alternative payee of the regular retirement benefits received by Diana Morgan as a result of her employment with the St. Tammany Parish School System and her participation in the TRSL retroactive to her initial receipt of those benefits in December 2011; (2) that Michael Morgan’s interest in Diana Morgan’s TRSL benefits, as alternate payee, was determined in accordance with the Sims formula to be 23% (½ of [9 h- 19½]), but not including any benefits Diana Morgan is presently receiving that were attributable to her disability (ie., the disability multiplication factor of 2½% as distinguished from the 2% multiplication factor pertaining for regular retirement benefits) until Diana Morgan’s 60th birthday on September 17, 2019, at which time Michael Morgan will be entitled to 23% of Diana Morgan’s benefits without adjustment regarding the applicable factor; and (3) that TRSL was ordered to prepare a division order based on the calculation of Michael Morgan’s benefits, as set forth in the judgment, and that Diana Morgan, as the participant in the TRSL, would be entitled to all benefits not 19otherwise conveyed in the judgment. From this judgment, Diana Morgan has appealed.

On appeal, Diana Morgan contends that: (1) the trial court erred in determining that Michael Morgan was entitled to a share of her TRSL benefits that were payable to her before age 60; and (2) the trial court erred in awarding Michael Morgan a share of her TRSL benefits calculated at a 2½% multiplication factor rather than at a 2% multiplication factor.

LAW AND DISCUSSION

TRSL Retirement Benefits and Disability Retirement

Among other benefits, TRSL provides its members “Retirement benefits” (La. R.S. 11:761) and “Disability retirement” (La. R.S. 11:778). Morgan, 2018-0681 at p.4. Pursuant to La. R.S. 11:761(A)(1), any person who became a member of TRSL prior to July 1, 1999, may retire upon written application to the board of trustees, if at the time of application the member has attained the age of 60 years and has credit for five year's of accredited service, or has twenty years or more of creditable teaching service regardless of age. Upon such service retirement, a member shall receive an annual benefit which provides a total allowance equal to 2% of his average earnable compensation multiplied by the number of years of creditable service, plus the-sum of three hundred dollars. La. R.S. 11:768(A)(1).

With respect to disability retirement, upon the application of a member in service or of his employer, any member may be retired by the board of trustees, not less than thirty nor more than ninety days following the date of filing such application, on a disability retirement allowance, provided that the medical board, after a medical examination of the member, certifies that the member is mentally or physically incapacitated for the further performance of the duties currently being 11flperformed, that the incapacity is likely to be total and permanent, and that the member should be retired. La. R.S. 11:778(C). Upon retirement for disability, a member shall receive a disability retirement allowance equal to 2½% of his average compensation multiplied by his years of creditable service, but not more than fifty percent of his average compensation. La. R.S. 11:779(B)(1). In addition, once each year during the first five years following any retirement of a member on a disability retirement and once in every three-year period thereafter, a disability retiree who has not yet attained the age of sixty, shall undergo a medical examination at the retiree’s expense; however, the periodic reexaminations may be discontinued upon advice of the medical board that the retiree’s condition is either , terminal or that chances of recovery are highly improbable. See La. R.S. 11:780(A). Further, every disability retiree shall submit to the board of trustees a notarized annual earnings statement detailing his earned income from employment in the previous tax year. La. R.S. 11:780(B).

However, a disability retiree, upon attainment of the earliest age that he would have become eligible for a retirement benefit, if he had continued in service without further change in compensation, shall become a regular retiree using only his years of creditable service; however, his maximum benefit shall not be less than his disability benefit as provided by La. R.S. 11:779(B)(1). La. R.S. 11:779(D).

Classification of Retirement Benefits

A spouse’s right to receive benefits payable by a retirement plan is, to the extent attributable to employment during the community, an asset of the community. Sims, 358 So.2d at 922. At the time of the partition, the non-employee spouse is entitled to a declaration of the interest attributable to the In community in the retirement benefits, if and when they become due; when they do become due, the non-employee spouse is entitled to receive the proportion of them recognized as attributable to the other spouse’s employment during the existence of the community. Bordes v. Bordes, 98-1004 (La. 4/13/99), 730 So.2d 443, 448 (La. 1999), citing Sims, 358 So.2d at 923-924.

In Sims, 358 So.2d at 924, the Louisiana Supreme Court set forth the formula to determine a non-employee spouse’s interest in the employee spouse’s retirement benefit plan at the time the community property regime is terminated. The formula directs that the community interest be expressed by a fraction, the numerator of which represents the number of years of creditable service that accrued during the existence of the community and the denominator of which represents the total years of creditable service. Id. In order to calculate the non-employee spouse’s interest, the benefit is multiplied by ⅜ multiplied by the fraction representing the community interest., Id.

On the other hand, disability benefits payable by a benefit plan present a different issue. In Bordes, the Louisiana Supreme Court addressed the issue of whether disability benefits were community or separate property. Mr. -Bordes, a parish employee, participated in two retirement systems by virtue of his employment and he contributed to the plans for a number of years during the marriage. However, he eventually divorced and subsequently became disabled, Mr. Bordes was declared disabled in 1994 at the age of 42—too young to meet the eligibility requirement for normal retirement, which for him would occur in 2012 at age 60. However, he met the conditions for disability retirement benefits, and as such, was required to undergo a medical examination every year for the first five years of disability and once every three years thereafter, until he reached normal retirement age and he was also required to submit an annual income statement. Notably, when Mr. Bordes reached the normal retirement age' of 60, his disability | ^retirement benefit would automatically become a normal retirement benefit. Bordes, 730 So.2d at 444-447.

The Court pointed out that the significance of disability under Mr. Bordes’s retirement plan was that his disability triggered the early entitlement to retirement benefits that, but for the disability, would not be payable until normal retirement age. Bordes, 730 So.2d at 447. The Court further noted that when Mr. Bordes reached normal retirement age, neither the amount of his payment nor the source of the payment would change; the only changes would be the discontinuance of the requisite periodic medical examination and annual income statement. Id. The Court further noted that the purpose of paying benefits under a retirement plan is different when the benefits are payable because the employee spouse becomes disabled than when the benefits are payable because the spouse reaches normal retirement age. When the divorced employee spouse receives benefits because of disability, the benefits are paid in lieu of income that would otherwise be the employee spouse’s separate property. Therefore, the Court determined that basing the classification of benefits upon the purpose of the payment of benefits was fair and equitable, and provided ease of administration, and that when the employee spouse becomes disabled, the disability benefits replace the working wages he or she can no longer earn. Bordes, 730 So.2d at 447-448.

The Court then concluded that Mr. Bordes’s disability benefits were more akin to compensation for lost wages due to serious illness or injury, and were therefore, his separate property. However, the court noted that on May 17, 2012, Mr. Bordes would reach age 60 and be eligible for normal retirement. At that point, the Court concluded Ms. Bordes would be entitled to her share of Mr. Bordes’s retirement benefits attributable to his employment during the community. Bordes, 730 So.2d at 448.

|isln Anzalone v. Anzalone, 2007-1905 (La.App. 1 Cir. 11/18/08), 25 So.3d 836, writ granted and .judgment reversed in part and remanded, 2008-2988 (La. 4/13/09), 6 So.3d 755, this Court addressed a similar issue. Therein, Mr. Anzalone was elected to the position of district court judge and was sworn in. as a judge on January 1, 1985. In October 1990, he was declared totally disabled and retired as district court judge at age 55 with 6 years of service, and on October 24, 1990, he began receiving disability retirement. Judge Anzalone shared these disability benefits with his wife until January 2005. A petition for divorce was filed on April 12, 2005, and the parties were divorced by judgment dated July 13, 2005. On August 18, 2005, Judge Anzalone’s 70th birthday— the earliest date that Judge Anzalone was eligible to retire with only six years of service—the Louisiana State Employee’s Retirement System (“LASERS”) converted his retirement benefits from disability to regular retirement. Ms. Anzalone claimed that she was entitled to a portion of Judge Anzalone’s benefits—both before and after the conversion of those benefits from disability to regular retirement benefits. Judge Anzalone countered that his disability payments were his separate property and that his disability income was improperly converted by LASERS to retirement income. Anzalone, 25 So.3d at 837.

This Court, under the reasoning set forth in Bordes, determined that the disability benefits Judge Anzalone received from January 2005 through the date the community terminated were compensation for lost earnings (and thus community property), and as such, Ms. Anzalone was entitled to one-half of those benefits. Anzalone, 25 So.3d at 841. With respect to the benefits Judge Anzalone received after the age of 70, this Court recognized that Judge Anzalone’s retirement was “a hybrid one.” Anzalone, 25 So.3d at 844. This Court noted that Judge Anzalone was no longer required to furnish the paperwork of disability retirees because he attained the age of 70 and he continued to receive 50% of the |)4salary he was receiving immediately preceding his disability, which figure was higher than the retirement benefit Judge Anzalone would have received had he retired at age 70 with only six years of service. Id.. Thus, this Court noted that “[tjhrough the happenstance of his disability,” Judge Anzalone was receiving a benefit greater than it otherwise would be because LASERS, did not recalculate his benefit after attaining the age of 70—the age at which he was entitled to normal retirement with six years of service. Id. Therefore, this Court determined that at least,a portion of Judge Anzalone’s benefit was based,on his disability. Accordingly, this Court determined that, beginning on August 18, 2005 (the date Judge Anzalone turned 70), Ms. Anzalone was entitled to her proportionate share of the retirement benefit attributable to.the six years Judge Anzalone served as a judge; however, this Court limited her share to the percentage she would have been entitled to had Judge Anzalone not been disabled, and attributable to his six years of service as a judge. Anzalone, 25 So.3d at 844-845.

However, with respect to this Court’s determination that Ms. Anzalone was entitled to one-half of Judge Anzalone’s retirement from the date of his 70th birthday, but only in that portion attributable to the six years he actually worked as a district court judge prior to becoming disabled, the Louisiana Supreme Court reversed this Court’s judgment and reinstated the judgment of the trial court, which granted Ms. Anzalone one-half of the total amount of retirement benefits Judge Anzalone began receiving on his 70th birthday. Anzalone v. Anzalone, 2008-2981, 2008-2988 (La. 4/13/09), 6 So.3d 755 (per curiam).

Michael Morgan’s Entitlement to a Proportionate Share of Diana Morgan’s Benefits commencing December 2011 Rather Than Age 60.

(Assignment of Error Number 1)

In this case, the trial court’s judgment awarded Michael Morgan an interest in the regular retirement benefits received by Diana Morgan as a result of her employment with the St. Tammany Parish School System and her participation in | isthe TRSL in accordance with the Sims formula, which award was retroactive to Diana Morgan’s initial receipt of those benefits in December 2011. Diana Morgan contends that the trial court erred in awarding Michael Morgan an interest in her benefits retroactive to December 2011 rather than commencing his interest in her benefits when she reached age 60, which she claimed was her “normal retirement age.” She essentially argues that her benefits from December 2011 through the date she reaches age 60 are disability benefits, which should be classified as her separate property, and that Michael Morgan is only entitled to the Sims portion of her benefits after age 60, because those benefits are her regular retirement benefits. Michael Morgan contends that age 60 was not Diana Morgan’s “normal retirement age” and he maintains that the trial court’s judgment was correct because at the time Diana Morgan retired in December 2011, she was eligible for regular retirement benefits because she had 25 years of accredited service, and thus was eligible to retire regardless of age. In other words, he argues that the benefits she began receiving when she retired in December 2011 are not disability benefits, but rather, they are regular retirement benefits for which he is entitled to the Sims portion. We agree.

Even though when Diana Morgan retired in December 2011, she took a disability retirement, La. R.S. 11:779(D) mandates that a disability retiree, upon attainment of the earliest age that he or she becomes eligible for a retirement benefit, the disability retiree “shall become a regular retiree” based on his years of creditable service. Louisiana Revised Statutes 11:761(A)(1) provides that any member who became a member of TRSL prior to July 1, 1999 may retire upon written application to the board of trustees, if at the time of the application, the member has attained the age of sixty years and has credit for five years of accredited service, or has twenty years or more of creditable teaching service regardless of age. Herein, the parties stipulated that Diana Morgan became a 11fimember of TRSL in 1986 (prior to July 1, 1999) and that when she retired in December 2011, she had 25½ years of creditable service, which included 19½ years of actual teaching service and 6 years of service on disability. Thus, in December 2011, Diana Morgan was eligible for regular retirement regardless of her age because she had more than twenty years of creditable service; Diana Morgan attaining the age of 60 was not a prerequisite to her eligibility to retire. Furthermore, once Diana Morgan’s retirement was converted to regular retirement, she was no longer required to submit to periodic medical examinations or submit a notarized annual earnings statement to TRSL’s board of trustees.

In Bordes, although the Court characterized Mr. Bordes’s disability retirement benefits as his separate property, the Court further noted that under Mr. Bordes’ retirement plan, when Mr. Bordes reached age 60 he would be eligible for regular retirement and his disability retirement would automatically be converted into a normal retirement benefit. Bordes, 730 So.2d at 448. Thus, the Court held that when Mr. Bordes turned 60, Ms. Bordes would be entitled to receive the proportion of Mr. Bordes’s retirement benefits attrib-utablé to his employment during the community (i.e., the Sims portion of the retirement benefits). Id. Likewise, in Anzalone, when Judge Anzalone turned 70 years old—the earliest date he was eligible to retire under his retirement plan with 6 years of service—his disability retirement was converted to regular retirement; at that time, Ms. Anzalone was entitled to her interest in the retirement benefits. Anza-lone, 6 So.3d at 755.

We recognize that under the particular facts and applicable retirement plans in Bordes and Anzalone, the employee spouse’s eligibility for regular retirement was based on reaching a predetermined age, whereas in this case, under TRSL’s retirement plan, Diana Morgan’s eligibility for regular retirement was based on her accumulating more than twenty years of accredited service rather than reaching age I176O. However, the reasoning and holdings of both Bordes and Anzalone remain applicable—the earliest date at which an employee spouse receiving disability benefits is eligible to retire under their respective retirement plan, the disability benefits become retirement benefits to which a former spouse is entitled to the Sims portion. Accordingly, in this case, in December 2011, when Diana Morgan took disability retirement at age 52 and her retirement was immediately converted to a regular retirement because she was eligible to retire based on her years of service, Michael Morgan was entitled to the Sims portion of her retirement benefits (ie., ½ of the interest attributable to the community). Therefore, we affirm that portion of the judgment of the trial court awarding Michael Morgan an interest in the TRSL retirement benefits received by Diana Morgan in accordance with the Sims formula retroactive to Diana Morgan’s.initial receipt of those benefits in December 2011.

Michael Morgan’s Entitlement to Benefits Based Upon a #⅜% Multiplication Factor Bather Than a 2% Multiplication Factor

(Assignment of Error Number 2)

As set forth above, in December 2011, Diana Morgan took disability retirement, which provided her with a monthly benefit of 2½% of her average compensation multiplied by her years of creditable service; however, her retirement was automatically converted to a regular retirement, with the same monthly benefit as a disability retirement, because she was eligible for a regular retirement. See La. R.S. 11:761; La. R.S. 11:778(C); and La. R.S. 11:779(B)(1) and (D). Had Diana Morgan not taken disability retirement, when she retired, she would have been provided a monthly benefit of 2% of her average earnable compensation multiplied by her number of years of creditable service. See La. R.S. 11:768(A)(1).

In awarding Michael Morgan his interest in Diana Morgan’s TRSL benefits in accordance with the Sims formula, the trial court ordered that his interest in her 1 ^benefits be based on the 2% multiplication factor (applicable to regular retirement benefits) until Diana Morgan’s 60th birthday (September 17, 2019), at which time, he would be entitled to the Sims portion of her retirement based on the 2½% multiplication factor (applicable to disability benefits). Diana Morgan contends that the trial court erred in awarding Michael Morgan any interest based on the 2½% multiplication factor, since the increased multiplication factor was attributable to her disability, and thus her separate property. However, Michael Morgan contends that, in accordance with the Louisiana Supreme Court decisions in Bordes and Anzalone, the trial court correctly awarded him the Sims portion of Diana Morgan’s retirement benefits based on the 2½% multiplication factor because she is receiving the enhanced benefit as regular retirement benefits (rather than as disability benefits). We agree.

As set forth above, in Anzalone, this Court noted that “[t]hrough the happenstance of [Judge Anzalone’s] disability,” he was receiving a retirement benefit greater than it would have been had he retired at age 70 with only six years of service, and thus, at least a portion of the benefit he was receiving was based on his disability. Anzalone, 25 So.3d at 844. Further, this Court determined that Ms. Anzalone was entitled to a proportionate share of the retirement benefit attributable to the six years that Judge Anzalone served as a judge without disability during the marriage; thus, this Court limited Ms, Anza-lone’s share of Judge Anzalone’s retirement benefits to the percentage she would have been entitled to, had the defendant not been disabled, and attributable to Judge Anzalone’s six years of service as a judge. Anzalone, 25 So.3d at 844-845. In other words, this Court | ^recognized that Ms. Anzalone was entitled to receive the Sims portion of Judge Anzalone’s regular retirement benefits from the date they became payable, but held that her portion would not be enhanced by Judge Anza-lone’s disability.

However, insofar as this Court limited Ms. Anzalone’s entitlement to benefits to the extent attributable to Judge Anzalone’s six years of actual non-disabled service as a judge, the Louisiana Supreme Court reversed this Court and reinstated the trial court judgment, which awarded Ms. Anza-lone her Sims portion of Judge Anzalone’s entire retirement benefit (even though part of that benefit was attributable to disability). Anzalone, 6 So.3d at 755.

Analogous to the facts in Anzalone, in this case, when Diana Morgan retired, she began receiving retirement benefits rather than disability benefits. However, because Diana Morgan was disabled at the time she retired, she received a retirement benefit greater than it would have been had she not been disabled—in other words, her retirement benefit was based on the 2⅜% multiplication factor used for disability benefits rather than the 2% multiplication factor used for regular retirement benefits. Thus, like Judge Anzalone, a portion of her retirement benefit is based on her disability. See Anzalone, 25 So.3d at 844. Nonetheless, under the Louisiana Supreme Court’s holding in Anzalone, 6 So.3d at 755 that the non-employee spouse is entitled- to the Sims portion of the employee spouse’s entire retirement benefit (even though part of that benefit was attributable to disability), we find that Michael Morgan was entitled to the Sims portion of Diana Morgan’s entire retirement benefit (based on a 2½% multiplication factor), rather than a Sims portion limited by the benefit Diana Morgan, would have received had she not been disabled. Accordingly, that portion of the trial court judgment awarding Michael Morgan his Sims portion (23%) of Diana Morgan’s TRSL benefits without | ^adjustment regarding the applicable multiplication factor after Diana Morgan’s 60th birthday (September 17, 2019) is affirmed.

CONCLUSION

For all of the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, Diana D. Morgan.

AFFIRMED.

      . For additional background information, see also Morgan v. Morgan, 2005-1593 (La.App. 1 Cir. 6/21/06), 933 So.2d 257 (unpublished).

      . Diana Morgan had a stroke in 1984, one week after the birth of her fourth child with Michael Morgan, and thereafter, she was confined to a wheelchair. See Morgan, 2013-0681 at p.10 n.14 and Morgan, 2005-1593 at p.5.

      . Sims is the seminal case in Louisiana establishing the method of valuation and division of the community interest in a spouse’s pension plan. The Sims formula, 358 So.2d at 924, calculates a non-employee spouse’s interest in a spouse's employment benefit plan at the time the community property regime is terminated as the annuity or benefit multiplied by ½ multiplied by a fraction (the numerator of which is the portion of tjie pension or benefit attributable to creditable service during the existence of the community and the denominator of which is the pension or benefit attributable to total creditable service).

      . See Anzalone v. Anzalone, 2007-1905 (La. App. 1 Cir. 11/18/08), 25 So.3d 836, 837 n. 1, writ granted and judgment reversed in part on other grounds, 2008-2981, 2008-2988 (La. 4/13/09), 6 So.3d 755.

      . See La. R.S, 11:780(E) providing that ‘‘[i]f any disability retiree is restored to active service, his retirement allowance shall cease, he shall again become a member of the retirement system, and he shall contribute thereafter at the current rate in effect at the time he is restored to service, and if he contributes for at least three years, the period of time on disability shall be counted as accredited service for purposes of establishing retirement eligibility, but not for computation of benefits" and that “[a]ny prior service certificate on the basis of which his service was computed at the time of .his retirement shall be restored to full force and effect and, in addition, upon his subsequent retirement he shall be credited with all his service as a member.”

      . See La. R.S. 11:779(B)(1) providing that ”[u]pon retirement for disability, a member shall receive a disability retirement allowance equal to two and one-half percent of his average compensation multiplied by his years of creditable service, but not more than fifty percent of his average compensation” and La. R.S. 11:779(B)(2) providing that “[i]n addition to the benefit provided by Paragraph' (1) of this Subsection, if a disability retiree has a minor child, the disability retiree shall be paid an added benefit equal to fifty percent of his disability benefit for so long as he has a minor child, provided that the total benefit payable to the disability retiree does not exceed seventy-five percent of his average compensation.”

      . See La. R.S. 11:761(A)(1) providing that ”[a]ny person who became a member prior to July 1, 1999, may retire upon written application to the board of trustees, if at the time of application the member: (a) [h]as attained the age of sixty years; and (b) [h]as credit for five years of accredited service or has twenty years or more of creditable teaching service regardless of age” and La. R.S, 11:779(D) providing, in part, that "[a] disability retiree, upon attainment of the earliest age that he would have become eligible for a retirement benefit, if he had continued in service without further change in compensation, shall become a regular retiree using only his years of creditable service; however, his maximum benefit shall not be less than his disability benefit as provided by Paragraph (B)(1) of this Section and shall not include the benefit provided by Paragraph (B)(2) of this Section."

      .See La. R.S. 11:780(A) providing in part that ”[o]nce each year during the first five years following any retirement of a member on a disability'retirement allowance and once in every three-year period thereafter, the board of trustees shall require any disability retiree ... who has not yet attained the age of sixty years ... to undergo a medical examination;” La. R.S, 31:780(B) providing that "[e]very disability retiree .., shall submit to the board of trustees ... a notarized annual earnings statement detailing his earned income from employment in the previous tax year;” and La. R.S. 11:780.1 which provides for the termination of a disability retiree’s disability benefits if the retiree “becomes employed in any employment in the field of education.”

      . See La. R.S. 11:761(A)(1)(set forth in footnote 7) and La. R.S. 11:768(A)(1) providing, in part, that "[u]pon service retirement, a person who became a member prior to July 1, 1999, who retires on or after July 1, 1997, shall receive an annual benefit which provides a total allowance equal to two percent of his average earnable compensation multiplied by the number of years of creditable service, plus the sum of three hundred dollars."

      . See Id.

      . See Id.

      . ½ (9 years service during the community -⅜-19½ years total service) = 23%; see footnote 3.

      . The trial court's original judgment was signed on March 24, 2016; however, subsection 2 of that judgment contained a typographical error. Therefore, on May 4, 2016, by joint motion of the parties and pursuant to La. C.C.P. art. 1951, the original judgment was amended to correct that clerical error.

      . See La. C.C. art. 2338, which sets forth what comprises community property and La. C.C. art. 2341, which sets forth what comprises the separate property of a spouse.

      . Michael Morgan also contends that he was entitled to the Sims portion of Diana Morgan’s retirement benefits based on tire 2½% multiplication factor (rather than the 2% multiplication factor) retroactive to Diana Morgan’s retirement in December 2011, and that the trial court’s judgment deferring his entitlement to the enhanced multiplication factor was erroneous and should be reversed. However, Michael Morgan neither appealed the judgment of the trial court nor answered the appeal by Diana Morgan. Therefore, the propriety of the trial court’s ruling in this regard is not properly before us and will not be addressed herein.

      . Since Michael Morgan did not separately appeal the judgment of the trial court or file an answer to Diana Morgan’s appeal, we decline to address whether Michael Morgan was entitled to the Sims portion of Diana Morgan’s retirement benefits based on the 2½% multiplication factor retroactive to Diana Morgan’s retirement in December 2011. See footnote 15.