text:
    Michelle DUFRENE, et al v. GAUTHREAU FAMILY LLC, Gulf South Management, Inc. & Lafayette Insurance Company.
    No. 09-CA-153.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.
    Writ Denied Feb. 12, 2010.

      Richard C. Trahant, T. Peter Breslin, Attorneys at Law, Metairie, LA, For Plaintiff/Appellee.
    Raymond A. Pelleteri, Jr., Russell B. Ramsey, Pelleteri & Wiedorn Law Firm, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

12Pefendant, Lafayette Insurance Company, appeals from a trial court judgment finding that it violated LSA-C.C.P. art. 863 and 1471 and awarding to plaintiff sanctions of $60,000. We affirm the decision of the trial court.

This is defendant’s second appeal. The events that led to this appeal were set forth in our prior opinion, Dufrene v. Gautreau Family, LLC, 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 72-73, writ denied, 08-0629 (La.5/9/08), 980 So.2d 694, and 08-0628 (La.5/9/08), 980 So.2d 698, as follows:

Plaintiff, Michelle Dufrene Lassley, filed suit for damages on May 21, 2002, for injuries received when she fell in a stairway in Independence Mall, 4241 Veterans Blvd, Metairie, LA. Named as defendants in this suit were Gautreau Family, LLC (“Gautreau”), owner of the property; SRSA Gulf South Management. Inc. (“Gulf South”), responsible for the management and maintenance of the property; and United Fire and Casualty Co. (“United Fire/Lafayette”), Commercial General Liability insurance carrier for Gautreau Family, LLC. After a four day trial on the merits, the jury found that the stairway contained a defect which presented an unreasonable risk of harm, and that defendants knew or should have known of the defect, that the defect contributed to plaintiffs accident, and that the accident caused plaintiffs injuries. The jury further found that plaintiff was 10% at fault in the cause of the accident. The jury awarded damages totaling $3,206,000.00. The jury verdict was made the judgment of the court. After the denial of defendants’ motion for JNOV/remittitur on December 21, 2006, defendants appealed.
After the trial court granted defendants’ motion for appeal, plaintiff filed two motions for sanctions against United Fire/Lafayette. These motions alleged that defendants Gulf South and United Fire/Lafayette |sfailed to identify and/or produce two applicable insurance policies until after trial, and only after the jury had returned a verdict in excess of the only insurance policy that had been produced. The first motion sought sanctions pursuant to C.C.P. arts. 863 and 1471 for discovery abuses. The second motion sought penalties pursuant to LSA-R.S. 22:1220. The trial court rendered judgment on plaintiffs motion for sanctions pursuant to R.S. 22:1220. In the judgment, the trial court imposed sanctions of $10,000.00 against United Fire/Lafayette for its failure to produce the two policies. Defendants appealed from the award of sanctions.

Both the damage award and the award for sanctions pursuant to LSA-R.S. 22:1220 were affirmed by this court on appeal. The record indicates that both of these judgments have been satisfied.

On September 22, 2008, the court heard plaintiff’s motion for sanctions pursuant to LSA-C.C.P. art. 863 and 1471. The court granted the motion and awarded sanctions of $60,000.00, plus costs of the motion. In oral reasons for judgment, the court said United Fire and Casualty knew about the policies, and should have but failed to produce them in discovery in a timely manner. It is this judgment that is currently on appeal.

At the time of the accident, Gautreau (the owner) was insured by United Fire and Casualty Co. under a GCL liability policy that also provided coverage for SRSA Gulf South (property manager) (hereinafter “Gulf South”). In addition Gulf South was insured by Lafayette Insurance Company, a subsidiary of United Fire, under both a GLC policy and an excess umbrella policy. United Fire/Lafayette contends that when Gautreaux first notified it of plaintiffs claim, it determined that Gulf South was a named insured under Gautreaux’s policy and therefore no claim filed was ever opened for Gulf South under its own coverage polices. United Fire/Lafayette contends that the discovery requests were issued to Gautreaux and itself only, and not to Gulf South. During pretrial settlement negotiations, when it Lbecame apparent that liability exposure could be in excess of the $1,000,000.00 policy limit, Gulf South submitted a claim for its own defense, and sought indemnity under its own policy. Near or at the end of trial, United Fire/Lafayette supplemented the prior discovery request to furnish the Gulf South liability policies to plaintiff.

On appeal, defendant first alleges that the trial court erred in imposing sanctions pursuant to LSA-C.C.P. art. 863 and 1471 because it had already imposed sanctions pursuant to LSA-R.S. 22:1220. It argues that LSA-R.S. 22:1220 and LSA-C.C.P. art. 863 and 1471 address the same conduct and that LSA-R.S. 22:1220, as the more specific statute, applies to the exclusion of LSA-C.C.P. art. 863 and 1471.

The rules of statutory construction were set out by the Louisiana Supreme Court in LAGC v. LA. Dept. of Agr. and Forestry, 05-0131 (La.2/22/06), 924 So.2d 90, 97-98, as follows:

“When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10. “Laws on the same subject matter must be interpreted in reference to each other.” La. C.C. art. 13. Further, “[wjhen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La. R.S. 1:4. Finally, the rules of statutory construction provide that, where two (or more) statutes deal with the same subject matter, they should be harmonized if possible; but, that, if there is a conflict, that statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975).

LSA-R.S. 22:1220 provides penalties for an insurer’s breach of its duty of good faith and fair dealing, evidenced in this case by its actions which suggested |fithat the insurance coverage afforded to plaintiffs claim was much lower that it actually was (and which had the potential to affect the plaintiffs trial strategy.) LSA-C.C.P. art. 863 provides sanctions for misrepresentations of law or fact, or assertions in bad faith, made by a party or attorney in pleadings. In addition, the plaintiff cites C.C.P. art 1471, relative to failure to comply with orders compelling discovery.

Therefore, while R.S. 22:1220 penalizes an insurer’s failure to deal fairly with its claimants, C.C.P. art. 863 penalizes any party’s actions in its litigation conduct, in the filing of its pleadings and discovery responses. We find that the two statutes do not deal with the same subject matter, and do not address the same issues.

Next, defendant alleges that the trial court erred in finding a violation of 863 and 1471, because it was not in bad faith, and because plaintiffs proved no damages as a result. Under article 863 there is an affirmative duty imposed on attorneys and litigants to make an objectively reasonable inquiry into the facts and the law. Subjective good faith will not satisfy the duty of reasonable inquiry. Sternberg v. Sternberg, 97-101 (La.App. 5 Cir. 5/28/97), 695 So.2d 1068, 1071, writ denied, 97-1737 (La.10/13/97), 703 So.2d 618. Among the factors to be considered in imposing sanctions for a party’s failure to comply with a discovery request are the prejudice to the other party and the willfulness of the noncomplying party. Richardson v. Amos, 42,948 (La.App. 2 Cir. 3/19/08), 978 So.2d 1184, 1187, citing Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199;

A trial court’s imposition of sanctions pursuant to LSA-C.C.P. art. 863 will not be reversed unless clearly wrong or manifestly erroneous. Thibodeaux v. Billiott, 04-1308 (La.App. 5 Cir. 3/1/05), 900 So.2d 110, 113. In this case, the trial court found that Lafayette knew of the claims against both Gautreaux and Gulf ]nSouth and knew it had issued policies covering both parties, and that it failed to name all relevant policies in discovery. In fact, it did not name the additional policies until the end of the trial. The court further found that this behavior was serious and warranted the imposition of sanctions. Lafayette defended its actions by stating that only Gautreaux had filed a claim, thus a claims file was only opened on the policy issued by Gautreaux, and that this was standard industry practice. However, Lafayette knew of the claims against Gulf South as it was providing a defense to Gulf South. Based on our review of the record, we cannot say that the trial court was manifestly erroneous in its determination that Lafayette’s conduct in failing to reveal the insurance policies it issued to Gulf South in response to discovery warranted sanctions.

Appellant further argues that the award of $60,000.00 was excessive. Once the court determines that sanctions are appropriate the trial court has considerable discretion as to the type and severity of sanctions to be imposed. Alombro v. Alfortish, 02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, 1169-1170, writ denied, 03-1947 (La.10/31/03), 857 So.2d 486, citing Armond v. Fowler, 96-398 (La.App. 5 Cir. 11/26/96), 694 So.2d 358, 361. In our review of the record, we find no error in the trial court’s assessment of sanctions.

Finally, in brief to this Court, plaintiff alleges that she should be awarded attorney fees for this appeal. Because no appeal, or answer to the appeal filed by Lafayette, was filed by plaintiff, this Court cannot consider that request. LSA-C.C.P. art. 2133.

For the above discussed reasons, the trial court’s ruling assessing penalties of $60,000.00 is affirmed. All costs are assessed against defendant/appellant, Lafayette Insurance Company.

AFFIRMED.

      . Lafayette Insurance Company was the named defendant in plaintiff’s petition. United Fire and Casualty Co., Gautreau's insurer, answered the petition and defended both Gautreau and Gulf South. Lafayette Insurance Company is a subsidiary of United Fire, and had issued two liability policies for Gulf South. As United Fire provides coverage by its own policy and through policies issued by its subsidiary Lafayette Insurance Company, these defendants will be referred to as United Fire/Lafayette.

      . LSA-R.S. 22:1220 was re-enacted as LSA-R.S. 22:1973 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.Re number change


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge. WICKER, J.,

license: Public Domain

text:
    STATE of Louisiana v. Ashton R. CAMPBELL.
    No. 09-KA-287.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

ly.The defendant, Ashton R. Campbell, has appealed his conviction and sentence for manslaughter. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 24, 2007, defendant pled guilty to manslaughter in violation of LSA-R.S. 14:31. Thereafter, on June 14, 2007, defendant was sentenced to 22 years imprisonment. On November 5, 2008, defendant filed a Motion to Correct an Illegal Sentence that was denied by the trial judge. Defendant sought review of that ruling from this Court. This Court granted the writ for the limited purpose of remanding the application to the trial court and ordering that it be considered as an application for an out-of-time appeal. State v. Campbell, 08-KH-1286 (La.App. 5 Cir. 1/14/09) (unpublished writ disposition). On January 28, 2009, pursuant to this Court’s order, the trial judge ordered that defendant be allowed to file an out-of-time appeal.

1 «LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. However, an An-ders brief must demonstrate by full |4discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm defendant’s conviction and sentence. Conversely, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that, while a Motion to Suppress was heard and denied by the trial court, defendant subsequently pled guilty without reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the adverse ruling with respect to the Motion to Suppress. She further states that, a review of the evidence adduced in light of the applicable law does not suggest that the trial court’s denial of the Motion to Suppress presented reversible error.

Appellate counsel also states that, prior to defendant’s decision to plead guilty, he was fully informed of the legal consequences of changing his plea by his trial counsel and the trial judge. She asserts that, although the standard discovery motions were filed, the trial record does not reflect that either the State or defense Iscounsel posed any objections or motions that would support a decision from this Court to reject defendant’s subsequent guilty plea.

Appellate counsel notes that the waiver of rights form was signed by defendant and his attorney, but not by the trial judge. She contends, however, that an examination of the plea colloquy revealed that the district court was quite thorough in explaining to defendant, and making sure he understood, the trial rights he would be waiving by pleading guilty. The trial judge informed defendant, among other things, that he had the constitutional right to a jury trial, the right against self-incrimination, and the right to confront witnesses. Appellate counsel states that defendant did not file a motion to withdraw the guilty plea, nor did he object to the sentence or move for reconsideration. She argues, therefore, that defendant is now restricted by law from appealing his sentence, citing LSA-C.Cr.P. art. 881.2.

Appellate counsel has filed a motion to withdraw as attorney of record which states she was appointed to represent defendant and had made a conscientious and thorough review of the trial court records, but could find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. She asserts that she notified defendant of the filing of this motion and had advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed may file a pro se supplemental brief. Defendant has not filed a brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. However, we will address defendant’s Motion to Correct Illegal Sentence.

| (¡Approximately five months after pleading guilty as charged, defendant filed a Motion to Correct Illegal Sentence requesting that the trial court vacate his sentence and resentence him. In his motion, defendant indicated that the trial judge erred by not considering the sentencing guidelines of LSA-C.Cr.P. art. 894.1. He argued that the trial judge did not consider aggravating or mitigating factors, nor the factual basis. Given that defendant’s sentence was agreed to as part of a plea bargain, defendant is precluded from challenging the sentence on appeal. LSA-C.Cr.P. art. 881.2; State v. Jarrow, 08-743, p. 7 (La.App. 5 Cir. 2/25/09), 9 So.3d 905, 910.

Regardless, the transcript of the sentencing hearing shows that the trial judge gave lengthy reasons for the sentence. He stated that defendant was a personable young man who did a foolish thing that was wrong. The trial judge said the taking of a life was never sanctioned by society unless it was in self-defense or defense of others, and that did not occur in this case. He asserted that, after going through discovery with defendant’s attorney and the State, he came to realize that defendant felt he was at risk and took matters into his own hands, which was wrong. The trial judge considered that defendant was young with no criminal record, noting that defendant would be middle aged when he completed his sentence, but would still have life ahead of him. He stated that in all likelihood, if defendant were to be put in this situation again, he would never “do it again.” The trial judge said he took all of those factors into consideration when he recommended the 22-year sentence, stating he felt that the sentence was appropriate given defendant’s background and the facts of the case. Additionally, during the guilty plea colloquy, the trial judge stated that he found that there was a factual basis for the plea, based on the prior hearings and the reports.

17Thus, the record indicates that the trial judge considered aggravating and mitigating factors before sentencing defendant to 22 years imprisonment for manslaughter, pursuant to the plea agreement. The sentencing range for a manslaughter conviction is not more than forty years. LSA-R.S. 14:31 B. Therefore, the sentence imposed in the instant case was at the lower end of the sentencing range.

Having found that an independent review of the record supports appellate counsel’s assertion that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, appellate counsel’s motion to withdraw as attorney of record is hereby granted.

We have reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and note the following error.

The trial judge advised defendant he would have “two years from the date of finality of conviction to file any post-conviction relief.” Such an advisal has been held to be incomplete. State v. Lauff, 06-717, p. 12 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 821. LSA-C.Cr.P. art. 930.8 A provides that no post-conviction relief application shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final. Rather than remand this matter for a complete advisal, we hereby inform defendant by 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 his judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922. State v. Hill, 09-89 (La.App. 5 Cir. 5/26/09), 15 So.3d 1042, 1045.

^CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed. Appellate counsel’s Motion to Withdraw is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

WICKER, J., dissents with reasons.

WICKER, J.,

dissents with reasons.

| iWhile I agree that after reviewing the counseled Anders brief and the record there appear to be no nonfrivolous issues and it appears that the conviction and sentence should be affirmed and counsel allowed to withdraw, I respectfully dissent for the following reasons.

On September 10, 2009 defendant Ash-ton Campbell mailed a letter to this Court. That letter reads in pertinent part:

On 14 January 2009, this Court granted an out-of-time appeal and the trial court issued a return date. Also, the Louisiana Appellate Project was appointed to represent my interests.
After several months of correspondence, the Appellate attorney (Gwendolyn K. Brown) withdrew as counsel. As a result, I am uncertain as to whether or not she filed an appellate brief on my behalf. If she did not file a brief, the return date has certainly expired.
I am still interested in filing an appeal for the Court’s review, and I am certain that a new return date will need to be set.
If an appellate brief was filed, then please notify me of the date of filing. If not, can you kindly extend the return date by which I may file a brief in proper person.

Considering that appellant counsel filed an Anders brief, the majority does not consider the September letter to be a motion to file a supplemental brief. I disagree. .Since the brief filed by appellate counsel argues no errors, I would construe the September letter as a motion to file a supplemental brief. A layman who represents himself cannot be held to the same standards of skill and judgment that must be attributed to an attorney. Salley & Salley v. Stoll, 03-807 (La.App. 5 Cir. 12/9/03), 864 So.2d 698, 702; Rader v. Department of Health and Hospitals, Office of Public Health, Engineering Services, 94-0763 (La.App. 1 Cir. 3/3/95), 652 So.2d 644, 646. Furthermore, in the interests of justice, this Court has the discretion to treat pro se filings with greater indulgence than those filed by a paid attorney. See, e.g., In re Succession of Taylor, 44,471 (La.App. 2 Cir. 6/24/09), 13 So.3d 1253, 1256.

I,therefore, am of the opinion that addressing this matter on the merits at this juncture is premature. I would give the defendant twenty-five days to file a supplemental brief and address this case on the merits thereafter.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Samuel ROSS.
    No. 09-KA-431.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Appellate Counsel, Amanda Caloge-ro, Assistant District Attorney, Trial Counsel, Gretna, LA, for Plaintiff/Appel-lee, the State of Louisiana.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Attorney at Law, Marrero, LA, for Defendant/Appellant, Samuel Ross.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

[ 2Samuel Ross appeals his convictions on two counts of indecent behavior with a juvenile and his sentences of ten years on each count. We affirm the convictions, but vacate the sentences and remand for re-sentencing.

On July 29, 2005, Samuel Ross was charged by bill of information with two counts of violation of La. R.S. 14:81, indecent behavior with a juvenile, occurring on or between March 1 and July 18, 2005. At arraignment Defendant pleaded not guilty. Defendant waived his right to a jury trial and, after a one-day bench trial, he was found guilty as charged.

On April 2, 2009, the trial court sentenced Defendant to ten years at hard labor on each count, without benefit of parole, probation, or suspension of sentence, to be served concurrently. Defendant takes this timely appeal.

FACTS

The gist of the State’s case was that Defendant committed indecent behavior with two female juveniles, K.S. and R.S., who were ages nine and seven at the time of the offense.

|sD.S., father of the victims, testified that on July 18, 2005 he arranged for his daughters, E.S., K.S. and R.S., to be taken care of by their grandmother, V.F. D.S. said he and his wife (the girls’ stepmother) had to go to traffic court. D.S. dropped off the three girls and their grandmother at the Walmart store on Veterans Boulevard in Metairie, where the grandmother worked. D.S. said the plan was for his daughters to stay at Walmart with their grandmother while she was on the job.

D.S. testified that while he was in court, his daughter E.S. phoned him to tell him the girls were going to the show with “Mr. Sam.” D.S. did not know who Mr. Sam was. E.S. told him Mr. Sam was her grandmother’s neighbor. He told E.S. to put Sam on the phone. When she did so, D.S. asked Sam what he was doing with his children, and told him, “[D]o not move, I’m on my way right now, I’ll be there in ten minutes to get them.”

D.S. went to Rye Street, where V.F. lived, and found the girls waiting for him on the sidewalk with Defendant. The girls got in his truck and he drove away. He did not recall speaking to Defendant. D.S. said he was a little upset, and was very shocked that V.F. would let the girls go with someone he had never met, without his permission. The girls had often visited V.F. prior to that.

D.S. said on the way home he and his wife talked to the girls about the dangers of going with strangers. While driving, he noticed K.S. seemed upset and she was crying. He asked whether there was something she wanted to tell him, and she admitted that Sam had touched her “privates.” She told him she was sitting on Mr. Sam’s lap and he was tickling her. While he was tickling her, he reached down and touched her “flower.” D.S. said “flower” was the word his daughters used for vagina.

|4P.S. said he spoke to R.S., who told him Sam had touched her “ta-ta’s,” which was the word she used for breasts. D.S. also spoke to the oldest daughter, E.S., who told him nothing had happened to her.

Afterward D.S. contacted the police. As a result of his complaint, he later met with Detective Horne. Subsequently he was asked to bring his children to the Children’s Advocacy Center for a forensic interview, where all three girls were interviewed. Later all three underwent medical examinations at the Care Center at Children’s Hospital.

Deputy Kevin Balser of the Jefferson Parish Sheriffs Office testified he responded to the complaint made by D.S. on behalf of his daughter K.S. Deputy Balser testified he spoke to D.S. and K.S. in person and to V.F. by phone. Deputy Balser testified K.S. told him she went to the apartment of a man she called Sam, and while she was there watching movies, “Sam had touched her by her vagina, on the outside of her clothes, and at some point tickled her.”

After speaking with K.S., who was upset and crying, Deputy Balser determined the charge should be investigated. He did not talk to the other children.

Deputy Balser testified he also spoke with the grandmother, V.F., by phone. She told him a gentleman named Sam arrived there and asked to watch the three children, and actually transported the girls to his apartment to watch them. She told him she was a next-door neighbor to Sam.

Pursuant to sheriffs office protocol, Deputy Balser contacted the Detective Bureau’s Personal Violence Section, which investigates sex crimes, and turned the case over to Detective Horne of that section.

Detective Kaye Horne testified she responded to the complaint on July 18, 2005. She said D.S. informed her that during a telephone call with his eldest daughter he learned his daughters were with a Mr. Sam, whom he did not know; 15that he went to pick them up; and that later his middle daughter, K.S., told him Sam had tickled her and “touched her in a bad place.”

Detective Horne met privately with K.S., who told the detective “she had been touched inappropriately, and that it started off with tickling, and then Mr. Sam touched her on her vagina over her clothes.” Detective Horne said K.S. referred to her vagina by the word “flower.” According to Detective Horne, K.S. became very upset during questioning, so the detective halted the interview until K.S. could be brought to a more child-friendly atmosphere at the Advocacy Center.

Detective Horne also interviewed the youngest daughter, R.S., who told her that “Mr. Sam had touched her on her bare vagina and tickled her ta-ta’s.” The detective said “ta-ta’s” is the term R.S. used for breasts. Horne said R.S. looked a little upset, but less than K.S., whom Detective Horne described as “very upset, very withdrawn, very nervous.”

Subsequently, all three girls were taken to the Child Advocacy Center in Gretna for an in-depth forensic examination. Detective Horne monitored the interviews of all three girls and she said the stories given by the children were consistent.

As a result of the interviews, Detective Horne testified, she prepared and executed a search warrant for 4020 Rye Street, Apartment 2, Jefferson Parish, which Samuel Ross shared with Henry Owens, whom the children called “Mr. Hank.” The detective said Ross and Owens’ apartment was right next door to the apartment of the children’s grandmother.

Detective Horne found items geared toward juveniles, pictures displaying nudity, and books and magazines of a sexual nature in the apartment. She was able to determine from the children’s descriptions which bedroom belonged to Defendant and which belonged to Owens. The girls told her Defendant’s room had |fia huge DVD collection along the side of the wall. The girls also informed her they had previously gone to the apartment to retrieve juvenile videos from both Defendant and Owens.

Detective Horne testified that in Defendant’s room police found DVDs that included a Lizzie McGuire box set, a picture of Hillary Duff, as well as M and Twist magazines. Horne said all those items are geared to a juvenile audience. There also were a calendar and a signed poster of Hillary Duff in Defendant’s room. E.S. testified she had seen the Hillary Duff and Lizzie McGuire items in Defendant’s apartment. Detective Horne testified Defendant had a large collection of juvenile movies rated PG or PG-13, ie., “kidlike in nature” and preteen. In addition, Detective Horne said, the police found two “computer or Xerox cop[ies] of a young female girl with her breasts exposed, kind of sitting in a suggestive manner” and a Playboy DVD, as well as a picture and a cartoon displaying nudity.

In the living room, the police found Playboy, Maxim, and X-Site magazines in the bottom of a magazine rack under the coffee table. Detective Horne said these items were accessible in a common area where the television was located.

Detective Horne acknowledged that some of the items in evidence were recovered from Owens’ room, including the Playboy DVD, Sexual Nude Coeds, Inside Out, a cartoon of a nude woman and man kissing, Maximum Sex, and 50 Favorite Sex Positions. She said the Lizzie McGuire, Sleepover and Brave New Girl DVDs and Hilary Duff items were found in Sam’s room.

She was unable to reach Defendant immediately because he was out of town, but after he returned home she contacted him and arranged an interview. Defendant and his counsel came to the Detective Bureau for an interview on August 2, 2005. Defendant was advised of his rights, but waived them, and gave a recorded audio statement. He admitted he had been alone with the girls, that he |7consumed alcohol while with them, that he sat close to at least one of the girls, and that he hugged them. He also admitted he took photographs of the girls, which he claimed he deleted. Detective Horne said she did not find such photographs. Eventually an arrest warrant for Defendant was issued.

Omalee Gordon was a forensic interviewer with the Jefferson Parish Children’s Advocacy Center at the time relevant to this case. She testified she conducted videotaped interviews of E.S., K.S., and R.S. on July 20, 2005. Those videotapes were entered into evidence.

E.S. testified that at the time of trial she was age 14, her sister R.S. was 11, and her sister K.S. was 12. She recalled that in July 2005, Sam and Hank lived next door to her grandmother’s apartment on Rye Street in Jefferson Parish. She and her sisters would sometimes go inside Sam and Hank’s apartment to watch TV and videos or movies. E.S. remembered one day when her dad had to go to court for something, so her grandmother offered to babysit, but she had to work. E.S. said her father brought her and her sisters to stay with their grandmother at work. They saw “Mr. Sam” there. He told them he was going to take them to the movies, but he had to go home and put clothes in the washer. Her grandmother told them to call their father, and the girls went with Sam.

E.S. testified her grandmother told her to call her father as soon as she arrived. E.S. said tried to call their father using Sam’s phone, but was unable to reach him. When E.S. eventually reached her father, she testified, “I told him we were going to the movies with Sam and that we were going to be okay.” She said her father sounded upset, and he told her to stay outside and wait for him.

IsWhen her father arrive to pick them up, all the girls were crying. E.S. said she was crying because she was scared; she thought she had done something wrong. She acknowledged her father said he was very angry with her grandmother, and they might not be allowed to see their grandmother again. They went to Wendy’s, and that was when her sisters told him what happened. E.S. said she told him nothing had happened to her. She also told him she did not know anything about what happened to her sisters.

E.S. said they then went to her “nanny’s” house, where the police and the detective talked to them. E.S. also recalled meeting with Miss Omalee from the Children’s Advocacy Center, and that she told her nothing happened to her.

E.S. also said she remembered seeing both Sam and Hank tickling her sisters occasionally, and sometimes saw her sisters sitting in Hank’s lap. She could not recall if she had seen them sitting in Sam’s lap. She did not recall seeing any “inappropriate touching” while she was there. E.S. identified Defendant in open court as Mr. Sam.

E.S. said her sisters’ behavior changed before coming to court for the trial; they had trouble sleeping, and nightmares. She said K.S. and R.S. had started sleeping in their father’s room. According to E.S., the girls were not allowed to see their grandmother for about a year after this event. E.S. also acknowledged that Sam had a rule about leaving his front door open when the girls were there, and that the door was always open when she was over there.

R.S. testified she was 11 at the time of trial, and that she was seven in 2005. She remembered that before the hurricane her grandmother lived in an apartment in Me-tairie. Her next-door neighbors were Sam and Hank. She and her sisters would visit with Sam and Hank, where they would watch movies. She recalled the day when her father called the police. Earlier that day she was at Walmart with her | ^grandmother while her grandmother was working. She recalled leaving the store with her sisters and Mr. Sam, but she did not remember why she and her sisters went to Defendant’s apartment.

When her sister called their father to tell him they were going to the movies, her father said for them “to wait there and don’t go anywhere.” When her father came to get them he was upset because he said they “should never have went with somebody that wasn’t a family member or anybody we knew close ..., or that he knew.” R.S. said she was a little upset, but not extremely upset, because her father had a look on his face as if she had done something bad. Her father said he was angry at her grandmother and they might not be able to see their grandmother again.

She recalled that when they got home, her father talked to her and she told him that Mr. Sam was touching her in places that she “didn’t feel comfortable with.” Those places were her “boob,” and right by her vagina. She said she used to call her boobs “ta-ta’s” and her vagina “flower.” After that the police came and talked to her. She did not recall being interviewed by other people. She remembered going to the hospital and being examined.

R.S. said they watched TV in the living room where the sofa was. She did not recall seeing anything in there that made her uncomfortable. She remembered that Mr. Hank had naked pictures on the wall in his room. R.S. identified Defendant in open court as Mr. Sam.

R.S. did not recall when the touching happened. When it happened, both her sisters were there, and they were watching a movie. She did not remember whether Sam left the door open when they were at his apartment.

R.S. said her memory of events was better back at the time, when she first talked to Ms. Omalee.

| U)Later, when asked if she remembered on what date or at what time it happened, R.S. replied, “No, sir.” When asked if she remembered that it happened, that her sisters were present, and that it happened at least one time, R.S., replied, ‘Tes, sir.” When asked if it didn’t happen more than one time, R.S. replied, “Not that I remember.”

In her July 20, 2005 recorded session at the Children’s Advocacy Center, R.S. stated she was touched more than once and on different days, but she did not refer to specific dates on which she was touched. However, in a recorded session at Children’s Hospital, R.S. stated she was seven and eight years old when the touching occurred.

In the recorded session at the Children’s Advocacy Center, R.S. also stated that Defendant showed her nasty movies and pictures, and Defendant said nasty things. R.S. said Defendant would put the nasty magazines in a compartment in the coffee table when other people were around.

K.S. testified she was 12 years old at the time of trial. She was getting ready to go into third grade four years before. She recalled that before the hurricane her grandmother used to live in an apartment. She recalled an incident in 2005 when they had been at Walmart with their grandmother, and their father got very upset. She remembered she and her sisters were ■with her grandmother because her father had to go to court.

K.S. testified when at her grandmother’s apartment they would visit with Mr. Sam and Mr. Hank, who lived next door. She and her sisters would go to their apartment to play darts and watch TV.

On the day her father got mad at them, K.S. testified, her grandmother saw Mr. Sam at Walmart. He asked if they wanted to go to the movies to see the Fantastic Four, so they went with him. She and her sisters went to his house and |nwatched TV, then he said he needed to wash clothes. “Then my sister wanted to call my father, and we’d stand outside.”

K.S. said when her father came he was not happy at all. He said to just get in the car. According to K.S., her father was “just screaming at” Mr. Sam, saying, “[W]hy do you have my kids?” Then they left and went to Wendy’s. In the car she and her sisters were upset. Her father talked to her and she told him, “Mr. Sam drove us, and then that was it.” According to K.S., her father did not ask her anything about Sam.

Later when they were at home, K.S. testified, she told her father that “Mr. Sam touched me in the wrong spot.” K.S. testified she told her father it was on her flower. She explained that at the time she referred her vagina as her flower.

She testified this happened on more than one occasion, and on different days, in the living room of Defendant’s apartment while she and her sisters were there watching television. She did not remember the dates on which it occurred, but said it occurred almost at the end of school, before the summer months.

According to K.S., it would start with her sitting on Mr. Sam’s lap and him tickling her in “okay places,” but then he would move to a bad place. K.S. testified Defendant also would kiss her on her cheek when she was sitting in his lap watching TV. She agreed the door was always open when she was at Sam’s apartment. K.S. identified Defendant in open court as Mr. Sam.

She also said her memory of what happened was better back when she spoke to the police officers. In her recorded session at the Children’s Advocacy Center, when talking about the day Defendant picked up her and her sisters at Walmart, K.S. stated that Defendant tickled her and touched her “flower” while she sat on his lap. She also indicated Defendant touched her breast area. It is unclear, however, whether K.S. was referring specifically to events that took place on July |1218, 2005. Later in her recorded interview, K.S. reported that an incident in which Defendant squeezed her “butt” occurred only once during the school year, although she could not remember the date.

K.S. testified she never told her sisters or anyone else because she was scared. She said she has nightmares about Defendant. According to K.S., she never saw Defendant touch E.S. or R.S. While she was in the car with her sisters, E.S. told her father that nothing happened to her.

The girls’ grandmother, V.F., testified that when her grandchildren, E.S., R.S., and K.S., came to visit her they also would sometimes visit her neighbors, Sam and Hank. She identified Defendant in open court as Sam. She said on the day the girls were with her at Walmart, she saw Sam there shopping. He offered to take the girls to the movies. V.F. said she told the girls they could go, and told E.S. to call her father. According to V.F., E.S. called her father from the telephone in the store’s Claims Office before they left.

V.F. said she learned of the situation when her daughter, the children’s mother, called her and told her that Sam had abused her grandchildren. She testified the police called her at work later that day, but they never came to see her. They told her she could not see the girls.

Several weeks after Defendant’s statement was taken, the girls were taken to the Audrey Hepburn Care Center at Children's Hospital for medical examinations. Dr. Adrienne Atzemis, an expert in the field of pediatric forensic medicine, testified she examined E.S. at Children’s Hospital on August 25, 2005, and that K.S. and R.S. were seen by Dr. Monica Weiner, a senior training fellow at | ^Children’s Hospital on August 19, 2005. Dr. Atzemis testified she supervised Dr. Weiner and she signed off on Dr. Weiner’s findings.

Dr. Atzemis said R.S. was a seven-year-old female at the time of her examination on August 19, 2005. R.S. disclosed “digital vaginal contact over her clothes by Mr. Sam,” that “Mr. Sam and Mr. Hank had touched her ta-ta’s over her clothes,” and stated “she was exposed to pornography by Mr. Hank at Mr. Sam’s house.” According to Dr. Atzemis, she would have expected to find and did find “an essentially normal examination,” given the history of touching over R.S.’s clothing.

The doctor stated K.S. was a nine-year-old female at the time of her examination on August 19, 2005. She disclosed there was “digital vaginal contact by Mr. Sam, possibly over clothes”, and “that she was exposed to pornography at Mr. Hank and Mr. Sam’s house.” According to Dr. At-zemis, based upon K.S.’s disclosure she would have expected to find a normal examination and, in fact, there where no positive findings indicating any sexual trauma or physical abnormality. However, it was reported that K.S. had daytime urinary control accidents and nocturnal incontinence, which Dr. Atzemis opined could be a stress-induced behavior.

Dr. Atzemis stated E.S. was an eleven-year-old female at the time of her examination on August 25, 2005. The doctor testified E.S. disclosed that “something had happened” and said she had seen pictures of naked women, of “ta-ta’s” of women, at Mr. Sam and Mr. Henry’s house. E.S. said she had been at Walmart with her grandmother, that she and her sisters went to Mr. Sam’s place to watch a movie, she called her father and he came, and they were waiting outside. The father was upset and was yelling.

| HPr. Atzemis said E.S. told her she was wondering what was happening when she was not there, since she had never seen her sisters get touched. According to Dr. Atzemis, based upon E.S.’s disclosure she would have expected to find a normal examination, and in fact she did.

The recordings of the Care Center interviews of all three girls were entered into evidence.

At trial Defendant, a 47-year-old man, testified that in 2005 he lived at 4020 Rye Street, Apartment 2. Defendant testified that when he came home on one occasion, he found Owens in the apartment with six girls, including E.S, K.S., and R.S. Defendant said he told both Owens and the girls’ grandmother he thought it was inappropriate.

Defendant asserted he told the girls’ grandmother several times that he did not want the girls to come over because it was inappropriate. He said he told her, “[I]t only takes an allegation to ruin someone’s life, and I do not want to be there.” He claimed he was overruled by Hank and the grandmother, however, who allowed the girls to continue visiting, until after a while he “just kind of got used to them being there all the time.”

Defendant testified that at first he just loaned the girls his DVDs. He said that 10 to 20 percent of his movies were children’s movies, ie., Disney movies, including Hillary Duff movies. Defendant claimed he was “trying to watch more wholesome stuff,” which he was advised to do when he was baptized. He said he liked Hilary Duff for her singing voice.

According to Defendant, he asked the girls’ grandmother if she wanted to censor the movies, but she replied that the girls could censor the movies themselves. She told him the girls knew what was appropriate for them to watch and the girls could get up and leave the room.

115 Accor ding to Defendant, he told the girls that if they came over to his apartment, they had to be sure their grandmother knew exactly where they were. He testified he gave the girls three rules after he discussed it with their grandmother. The rules were that the front door had to stay open so anyone could check on them; they had to stay in the living room; and if anyone touched them in a way that made them feel inappropriate, they had to leave immediately and tell their parents. According to Defendant, the girls always came over together and never stayed alone.

Defendant testified that on July 18, 2005 he went to shop at Walmart and stopped to say hello to the girls’ grandmother. On that day, he said, the girls’ grandmother was upset because she had to watch the girls while at work. Defendant testified he offered to take the girls to a movie to get them “out of her hair.” He told the grandmother he would come back to pick her up when she got off work and take them all home.

According to Defendant, the grandmother did not seem to have a problem with him taking the girls to the movie, but she did instruct the girls to call their father before they left with him. Defendant testified he told the grandmother he would have to stop home to get his cell phone in order for the girls to use it.

Defendant said that when they arrived at his apartment, he gave E.S. the phone, then went upstairs to get his clothes out of the laundry room. When he returned, E.S. told him she was having trouble reaching her father. Defendant told her to keep trying because they could not go to the movie until she called her father. When E.S. reached her father by phone, he started yelling at her and she started crying.

Defendant testified E.S. handed him the phone and he spoke to the father, who told him to keep the girls there and that he would be there in 10 minutes. |! (According to Defendant, when the father arrived he shook Defendant’s hand and told him he was really disappointed in the girls’ grandmother. Defendant said he told the father, “I didn’t mean to do anything wrong. I didn’t mean to upset you.”

Defendant said he never touched the children inappropriately. He testified he never let the girls sit on his lap, and he never kissed any of them on the cheek. In addition, he testified he did not show them sexually explicit photographs or inappropriate programs.

According to Defendant, Hank Owens made the computer-generated photographs found by the police. Defendant testified the photographs had Owens’ handwriting on them. Defendant claimed Owens owned the furniture and everything else in the living room. Defendant said he was unaware of the magazines that were in the coffee table.

In rendering a verdict against Defendant, the trial judge stated he found the testimony of the three children “detailed and rich in fact.” The judge pointed out, “They testified in great detail about the apartment, the apartment’s setup, items that were in the apartment, things that were shown to them,” items that in fact were recovered by police on executing the search warrant. The judge also found the girls’ testimony “in sync with the dates as specified in the Bill of Information, March 1st through July 18th.” The judge acknowledged there was some inconsistency in the children’s testimony, but stated he found it was de minimis.

The judge concluded,

If there was any inconsistency in the testimony, it was yours.
You sit before me and proclaim with great conviction that you were aware that this was a bad set of 117circumstances; you, quote unquote, knew this was coming.... I think, to sum up your testimony from start to finish, it was the blame game, and it was everybody else’s fault but your own.
[Wjhile you tell the Court that you felt uncomfortable, that it was a bad situation, that you had strict rules, after coming off an extended work schedule, being home for three scant days before going back out, a man of your age takes one out of those three available vacation days and picks up children that you are uncomfortable with, that you know is a bad scene, that you shouldn’t have alone in your apartment. That’s under the pretext of taking those children to the movies. And you didn’t take them to the movies; you took them back to your apartment, the very thing you sit in this witness stand and tell me is inappropriate.
I did make note of the girls and their testimony. The record, when it’s reviewed in typewritten form, will never indicate the emotion that those girls had while testifying. I did make note that they had difficulty making eye contact with you. There were times we had to take breaks because their emotions were getting the best of them. Yet, when you testified, sir, it was in a very rapid, almost well-rehearsed manner, void of any emotion.

The judge stated he believed the testimony of the girls and believed the State had proven its case.

The trial court found Defendant guilty as charged on both counts.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment, Defendant claims there was insufficient evidence to sustain his conviction.

Between March 1 and July 18 of 2005, when Defendant was alleged to have committed the offenses, La. R.S. 14:81(A) stated in pertinent part:

Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing |1sor gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

Defendant does not dispute the age difference between himself and the two victims. However, he claims “any touching that occurred was unintentional, and not with the intent to arouse or gratify the sexual desire of either the victims or [himself].” Defendant contends the girls were accidentally touched during the course of an innocent act, ie., one not sexual in nature, when he was tickling them in a normal manner. Defendant claims he did not touch the girls’ buttocks. He also notes that none of the girls saw him touch either R.S. or K.S., and that it is undisputed the door was always left open when any children were inside the apartment.

Defendant points out that R.S. told several versions of how he allegedly touched her breasts and vagina. In addition, he argues, there was no evidence that he made sexual comments to R.S. Defendant suggests the alleged kiss on the cheek was harmless, not a lewd and lascivious act. Defendant claims that none of the pornographic material had a connection to him. Rather, the pornographic material belonged to Owens, and it was kept either in Owens’ bedroom or in the magazine rack. He contends that neither R.S. nor K.S. testified he exposed them to the pornographic material. In addition, Defendant claims none of the alleged incidents occurred on the day he picked up the girls from Walmart, ie., July 18, |192005, and none of the girls could state specifically when the alleged incidents occurred.

The State claims it presented sufficient evidence to support Defendant’s conviction. The State notes that E.S. testified she saw Defendant tickle both her sisters. In addition, the girls’ father testified K.S. told him that Defendant touched her vagina while tickling her as she sat on his lap, and R.S. told him that Defendant touched her breasts. Deputy Balser and Detective Horne both testified that K.S. told them Defendant touched her vagina on the outside of her clothes. Detective Horne testified R.S. told her Defendant touched her bare vagina and her breasts.

The State claims the girls’ subsequent interviews at the Children’s Advocacy Center were consistent, and that any inconsistencies in the girls’ testimonies do not undermine the verdict. The State points out that, although the trial judge recognized there were inconsistencies in the girls’ testimonies, the trial judge found the girls’ testimonies were more credible.

“The standard for appellate review of the sufficiency of evidence 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 beyond a reasonable doubt.’ ” State v. Battaglia, 03-692, p. 5 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 708, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

The weight of evidence is a question of fact solely determined by the trier of fact, who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Lyles, 03-141, p. 18 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50. In sexual offense cases, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, 12l)scientific or physical evidence to prove the commission of the offense. State v. Gaddis, 07-395, pp. 7-8 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, 25, writ denied, 08-0156 (La.10/10/08), 993 So.2d 1277.

Appellate review for minimal constitutional sufficiency of evidence is limited and restricted by the standard developed in Jackson v. Virginia. Lyles, 03-141 at 18, 858 So.2d at 50. Under the Jackson v. Virginia standard, a review of a criminal conviction record for sufficiency of evidence does not require the appellate court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Battaglia, 03-692 at 5, 861 So.2d at 708. Rather, the appellate court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Id.

In order to convict a defendant of indecent behavior with juveniles, the State must prove that (1) there was an age difference of greater than two years between the defendant and the victim, who was not yet seventeen, (2) the defendant committed a lewd or lascivious act upon the person or in the presence of a child, and (3) the defendant intended to arouse or gratify either his own or the victim’s sexual desires. Lyles, 03-141 at 18-19, 858 So.2d at 50.

Specific intent is a state of mind and, therefore, need not be proven as a fact. Rather, it may be inferred from the circumstances and actions of the defendant. Lyles, 03-141 at 19, 858 So.2d at 50. The victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the crime. Lyles, 03-141 at 19, 858 So.2d at 50-51. One witness’s testimony, if believed by the trial court, is sufficient to support a conviction in the absence of internal contradiction or irreconcilable conflicts with physical evidence. Battaglia, 03-692 at 7, 861 So.2d at 709.

laiIn Lyles, the evidence established that the two victims were under the age of seventeen and that there was an age difference of greater than two years between the victims and the defendant. One of the victims testified that, when she was eight or nine years old, the defendant took her hand, placed it on his private, and moved her hand on top of his private. Then, the defendant kissed her and put his tongue in her mouth. The other victim testified that on one occasion, when she was in fifth grade, the defendant touched her privacy part, i.e., in the front between her legs, and moved his hand up and down. That victim also testified that, on a separate occasion, when she was playing with her cousins, the defendant kissed her, putting his tongue in her mouth. Lyles, 03-141 at 19, 858 So.2d at 51.

In Lyles this Court found that viewing the evidence in the light most favorable to the State, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant committed two counts of indecent behavior with a juvenile. Id.

In Battaglia, supra, the evidence established that at the time of the offense the victim was 16 years old and the defendant was a great deal more than two years older. The victim testified the defendant was the man who pulled her into his apartment, locked the door, grabbed her breasts, buttocks, and between her legs on her private. She also testified the defendant offered her $400 to have sex with him and $40 to pose for a photograph. Two police officers testified that the victim relayed these events to them. 03-692 at 6, 861 So.2d at 708. The same officers recovered photographs of nude individuals and a camera from the defendant’s apartment. 03-692 at 6, 861 So.2d at 708-09.

In Battaglia this Court noted the jury apparently found the State’s witnesses more credible than the defendant’s testimony, because the jury returned a guilty verdict. 03-692 at 6, 861 So.2d at 709. We found that the victim’s testimony and | ¡.¡>the officer’s corroboration of certain details of her testimony provided the necessary proof of the three elements of the offense. 03-692 at 6, 861 So.2d at 709. In addition, we found there were no internal contradictions or irreconcilable conflicts with the physical evidence. Rather, the physical evidence supported the victim’s testimony. After viewing the evidence in the light most favorable to the State, we concluded that any rational trier of fact could have found the essential elements of the crime of indecent behavior with a juvenile beyond a reasonable doubt and, thus, there was sufficient evidence to convict the defendant. 03-692 at 7, 861 So.2d at 709.

In the present case, E.S. testified she had seen Defendant tickling her sisters on more than one occasion previously. At trial, R.S. testified Defendant touched her breast and “right by [her] vagina.” Detective Horne testified R.S. told her that Defendant touched her on her bare vagina and tickled her breasts. In her recorded session at the Children’s Advocacy Center, R.S. stated that Defendant showed her nasty movies and pictures, and said nasty things. Deputy Balser testified K.S. told him, “[Defendant] had touched her by her vagina, on the outside of her clothes, and at some point tickled her.”

K.S. testified she told her father [Defendant] touched [her] in the wrong spot. K.S. testified that at the time she referred to her vagina as her flower. According to K.S., this happened on more than one occasion in Defendant’s apartment, and it would start with her sitting on Defendant’s lap and him tickling her in appropriate places. K.S. testified Defendant would also kiss her cheek when she was sitting in his lap. K.S. said she has nightmares about Defendant. In addition, in her recorded interview at the Children’s Advocacy Center, K.S. reported that Defendant squeezed her “butt” once during the school year.

[g-jD.S. testified K.S. told him that while she was sitting on Defendant’s lap and he was tickling her, Defendant reached down and touched her vagina. Deputy Balser testified K.S. told him that Defendant initially tickled her, then touched her on her vagina over her clothes. Detective Horne testified K.S. told her that she had been touched inappropriately.

The trial judge noted that the inconsistencies in the girls’ testimonies were minimal, and that the girls’ testimonies were “in sync” with the dates specified in the bill of information. The judge indicated he found the accounts of the victims, who were all minors, were more credible than the 47-year-old defendant’s account that he did not touch the victims inappropriately-

“The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness.” State v. Simmons, 03-20, p. 14 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1258. “It is not the function of the appellate court to second-guess the credibility determinations of the trier of fact or to reweigh the evidence.” State v. McClain, 04-98, p. 6 (La.App. 5 Cir. 6/29/04), 877 So.2d 1135, 1140, writ denied, 04-1929 (La.12/10/04), 888 So.2d 835.

An appellate court may impinge on the fact-finding function of the trier of fact only to the extent necessary to assure the Jackson v. Virginia standard of review. Lyles, 03-141 at 18, 858 So.2d at 50. Therefore, an appellate court accords great deference to the finder of fact’s decision to accept or reject the testimony of a witness in whole or in part. McClain, 04-98 at 6-7, 877 So.2d at 1140. “The credibility of witnesses will not be reweighed on appeal.” State v. Dickerson, 01-1287, p. 11 (La.App. 5 Cir. 6/26/02), 822 So.2d 849, 856, writ denied, 02-2108 (La.2/21/03), 837 So.2d 627.

| i>Jn Gaddis, this Court found that while there may have been slight inconsistencies regarding some of the details in the minor victims’ accounts, they were substantially the same. 07-395 at 11, 973 So.2d at 28. We noted that when faced with a conflict between the victims’ testimony and the defendant’s testimony, the jury obviously chose to believe the victims. 07-395 at 12, 973 So.2d at 28. We stated that it was the role of the fact-finder to weigh the credibility of witnesses, and that a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. Id. We noted that if rational triers of fact could disagree as to the interpretation of the evidence, then the rational trier’s view of all the evidence most favorable to the prosecution must be upheld. Id.

In Gaddis we found a careful review of the record reflected that the trier-of-fact’s decision to believe the victims’ accounts of the events over the defendant’s testimony was rational and, therefore, viewed in the light most favorable to the prosecution, the State had proven its case. Id.

Here, based on the evidence provided by the State, including the testimony of the victims, the trial judge properly found that the State proved the essential elements of the offense of indecent behavior with juveniles beyond a reasonable doubt and, therefore, Defendant was guilty as charged. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment Defendant claims his sentence of 10 years on each count is illegal because at the time the offense was committed, the maximum sentence under La. R.S. 14:81 was seven years.

Prior to trial, the court erroneously informed Defendant that the sentencing range for indecent behavior with a juvenile was two years to 25 years without | ^benefit of parole, probation, or suspension of sentence. At sentencing, the court imposed sentences of ten years at hard labor on each count without benefit of parole, probation, or suspension of sentence, to be served concurrently.

At the time Defendant committed the offenses, however, the two-to-twenty-five-year sentencing range was not the penalty provision of La. R.S. 14:81. La. R.S 14:81 was amended by Louisiana Acts 2006, No. 103, § 1, and No. 224, § 1, to add a provision allowing a greater penalty where the indecent behavior is on a victim under age 13.

At the time that Defendant committed the offenses, the penalty provision of La. R.S. 14:81 stated:

C. Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

Although the new penalty provision of La. R.S. 14:81, as amended, was in effect when Defendant was sentenced, Defendant must be sentenced under the penalty provision of La. R.S. 14:81 in effect at the time he committed the offense. The State admits that the penalty provision of La. R.S. 14:81 in effect at the time Defendant committed the offenses provided for a maximum term of seven years imprisonment, and the State admits that Defendant must be sentenced according to the version in effect at that time.

| gfjUnder La. C. Cr. P. art. 882, an illegal sentence may be corrected at any time on review by an appellate court; in an appeal-able case, legality of a sentence may be reviewed on the application either of the defendant or of the state.

The defendant’s imposed sentence of ten years on each count is illegal because at the time of commission of the offenses, the maximum term of imprisonment under La. R.S 14:81 was seven years.

In addition, we note there is a patent error, in that the court ordered that the terms of imprisonment be served without benefit of parole, probation, or suspension of sentence. At the time of commission of the offense, the penalty provision of La. R.S 14:81 did not require that the term of imprisonment be served without benefit of parole, probation, or suspension of sentence.

Accordingly, the sentences will be vacated and the matter remanded for the district court to re-sentence Defendant pursuant to the penalty provision of La. R.S. 14:81 in effect at the time he committed the offenses.

DECREE

For the foregoing reasons, the convictions are affirmed. The sentences are vacated and the case is remanded for resen-tencing according to the views expressed in this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING

      . Pursuant to La. R.S. 46:1844(W)(3), we refer to the victims of these sex offenses and their relatives by their initials to protect the victims' identities. State v. Berniard, 03-484, p. 2 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 69 n. 1, writ denied, 03-3210 (La.3/26/0), 871 So.2d 345.

      . During audio-taped sessions at the Children's Advocacy Center on July 20, 2005, E.S. reported she was eleven years old, K.S. reported she was nine, and R.S. reported she was seven. On the date of trial, E.S. was fourteen, K.S. was twelve, and R.S. was eleven.

      . Detective Horne testified the investigation was interrupted due to Hurricane Katrina in August 2005. In the aftermath the sheriff's office lost patrol officers, so officers from the detective bureau — including Home — were assigned to patrol duty. Detective Horne said she was unable to follow up on this investigation for months due to post-Katrina circumstances.

      . Gordon described the Children’s Advocacy Center, or CAC, as "a neutral facility where children are brought when they've made allegations of having crimes committed against them, or when children have witnessed crimes.”

      . The Audrey Hepburn Care Center is devoted to the care and treatment of children who are suspected of having undergone maltreatment of some kind, including physical abuse, sexual abuse, or maltreatment such as neglect.

      . Detective Horne testified E.S., K.S., and R.S. all indicated that Owens touched them inappropriately. She said she interviewed Hank Owens and took three statements from him because his story was not consistent. She did not arrest him, however, but forwarded information about him to the district attorney's office. According to Horne, the district attorney did not accept charges against Owen.

      . Louisiana Acts 2006, No. 103, § 1 rewrote subsection A to add a provision define transmission to juveniles of electronic communications or images depicting lewd or lascivious conduct, text, or images part of the definition of indecent behavior with juveniles. La. R.S. 14:81(A)(2). The current version of La. R.S. 14:81(A) states:
      (A) Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
      (1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense; or
      (2) The transmission of an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

      . In the amended version of La. R.S. 14:81, the statute's old penalty provision — formerly paragraph C — is now subparagraph (H)(1), and the newly-added penalty provision is sub-paragraph (H)(2), as follows:
      H. (1) Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
      (2) Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

      . Although Defendant requested an error patent review, this Court routinely reviews the record for patent errors, regardless whether the defendant makes such a request. See La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).


author: WALTER J. ROTHSCHILD, Judge.

text:
    HACIENDA CONSTRUCTION, INC. v. Jacqueline Dunn NEWMAN, Wife of/and Welton Tommy Newman.
    No. 09-CA-506.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      John A.E. Davidson, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Clay J. Garside, Attorney at Law, New Orleans, LA, Joel Waltzer, Attorney at Law, Harvey, LA, for Defendants/Appel-lees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| .¿Plaintiff, Hacienda Construction Inc. (“Hacienda”), appeals the trial court’s March 20, 2009 judgment awarding it $5,060.72 for construction work, instead of the full amount sought, $13,812.72. For the reasons which follow, we affirm.

STATEMENT OF THE CASE

This litigation involves the property located at 670 Rue St. Michael, lot 165, in the Concord Estates subdivision in Terry-town, Louisiana. Hacienda sold this property to the defendants, Welton and Jacqueline Newman, and began constructing a home on the property for the Newmans. The construction of the home was near completion when Hurricane Katrina struck on August 29, 2005. In this lawsuit, Hacienda claims that the hurricane caused damage to the house, including the roof, garage door, stucco, soffit, and fascia, and that Hacienda promptly repaired the damage because the Newmans’ mortgage lender would not [shave permitted final payments to Hacienda under the construction loan agreement if the property had been left damaged. In its petition, Hacienda claims that the cost of the repair work was $13,812.72, but the Newmans failed to pay Hacienda the amount due. The Newmans answered the lawsuit with a general denial of the claims against them, and they filed a Third Party Demand against their insurer, State Farm Insurance Company (“State Farm”). State Farm settled this matter with the Newmans and was dismissed from this lawsuit on October 15, 2008.

Trial of this matter was held on March 19, 2009. On March 20, 2009, the trial judge rendered a judgment in favor of Hacienda in the amount of $5,060.72 for the costs of the construction work. In his reasons for judgment, the trial judge indicated that he believed Hacienda only proved part of its claim by a preponderance of the evidence. Specifically, the trial judge found that the evidence did not show that Hacienda performed the roof work it claimed or the stucco repairs. Plaintiff’s exhibit 16 is a list of the repairs Hacienda claims it performed, and the cost of each. The trial judge awarded Hacienda the following amounts charged: $767.00 for removal and replacement of wet insulation, $1,265.72 for interior trim and doors, $948.00 for labor to change the damaged interior trim, $575.00 for labor and material to replace garage side door, $525.00 for labor and material for the fascia and soffit, and $980.00 for sheetrock work, for a total award of $5,060.72.

On April 2, 2009, the Newmans filed a “Motion for Judgment on Offer of Judgment,” asserting that, in accordance with LSA-C.C.P. art. 970, Hacienda should be cast with all costs of the litigation incurred after the July 22, 2008 offer of judgment, in which the Newmans offered Hacienda $11,000.00, inclusive of 14costs, interest, and attorney fees, in order to settle the case. Hacienda filed a memorandum in opposition to this motion. On April 30, 2009, the trial judge granted to the Newmans’ “Motion for Judgment on Offer of Judgment,” and taxed the Newmans with all costs of the proceedings incurred prior to July 23, 2008, and Hacienda with all costs incurred as of July 23, 2008. The trial judge set Hacienda’s costs to be paid by the New-mans as $493.50, and the Newmans’ costs to be paid by Hacienda as $1,407.86. The trial judge also set the amount of interest owed to Hacienda as $811.55.

On March 30, 2009, Hacienda filed a Motion for Devolutive Appeal seeking to appeal the March 20, 2009 judgment, and this motion was granted by the trial judge on April 21, 2009.

LAW AND DISCUSSION

In its first assignment of error, Hacienda contends that the trial court erred in rendering a judgment on the offer of judgment and taxing plaintiff with costs without a contradictory hearing. Plaintiff further asserts that the trial court erred in assessing plaintiff with legal expenses, expert witness investigation costs, and a reduction in legal interest, when the offer of judgment contained allegations of fraud and accepting the offer would have constituted a stipulation by Hacienda that it was a party to fraud against an insurance company.

In this assignment of error, Hacienda complains that the trial court’s April 30, 2009 judgment on the Newmans’ Motion for Judgment on Offer of Judgment is erroneous. However, we cannot address the merits of this argument, because the April 30, 2009 judgment is not properly before us. Hacienda filed a Motion for Devolutive Appeal on March 30, 2009, and the trial judge’s order granted an appeal from the March 20, 2009 judgment. The record before us does not contain |fia Motion for Appeal pertaining to the April 30, 2009 judgment or an order granting an appeal from the April 30, 2009 judgment.

LSA-C.C.P. art. 2121 provides in pertinent part:

An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.

The jurisdiction of the appellate court attaches upon the granting of the order of appeal. LSA-C.C.P. art. 2088. In Voelkel v. State, 95-147, p. 4 (La.App. 1 Cir. 10/6/95), 671 So.2d 478, 480, writ denied, 95-2676 (La.1/12/96), 667 So.2d 523, the First Circuit held that it did not have jurisdiction over the appeal of a September 30,1994 judgment, because the petition for appeal sought only an appeal from a judgment rendered “on or about August 30, 1994,” not both judgments.

In the present case, because Hacienda was granted an appeal only from the March 20, 2009 judgment, the April 30, 2009 judgment is not properly before us for review on appeal. Accordingly, this assignment of error will not be addressed.

In its second assignment of error, Hacienda argues that the trial court erred by denying plaintiff reimbursement for the entire amount of repairs made on the Newmans’ property, $13,812.72, which was proven by a preponderance of the evidence at trial. It claims that defendants admitted the damage asserted by Hacienda, because the Newmans made an insurance claim, an adjustor came out and assessed the property, and the Newmans collected over $13,000 from their insurance company. It further argues that the Newmans asserted in their Third Party Demand against State Farm that the damages repaired by plaintiff were caused by Hurricane Katrina, so this was a judicial admission by the Newmans that their property was damaged by the storm and repaired by Hacienda. Hacienda also claims that all of the evidence, including the photographic evidence and the |6invoices and testimony of the repairmen or subcontractors, reveals that Hacienda met its burden of proving that it was entitled to payment in the amount of $13,812.72 for the repairs that it made.

The Newmans respond that although some damage to the garage was caused by the hurricane, the evidence at trial established that Hacienda did not perform all of the repairs that it claimed. Specifically, they claim that the roof was not damaged during the storm and that Hacienda did not repair the roof or any damage to the interior of the home caused by roof damage. The Newmans further assert that they told the State Farm adjustor that they did not believe the repairs claimed by Hacienda were legitimate, but the adjustor gave them the benefit of the doubt and paid them for all repairs except the roof, which showed no evidence of damage or repairs. According to the Newmans, after they filed a Third Party Demand against State Farm, State Farm decided that the matter was not worth litigating and paid a cost-of-defense settlement for the amount of the claimed roof repairs as well. However, the Newmans contend that Hacienda is not entitled to this money, because the evidence is clear that no roof damage occurred and no roof repairs were made.

Although Hacienda claims that the New-mans made a judicial confession under LSA-C.C. art. 1853 in their Third Party Demand that damages occurred to the Newmans’ house and this confession was sufficient to establish Hacienda’s claim, we disagree. LSA-C.C. art. 1853 provides:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

The Newmans’ claims in their Third Party Demand against State Farm do 17not constitute a judicial confession that Hacienda made all of the repairs it claimed and was entitled to reimbursement for these claims. In the Third Party Demand, the Newmans contend that any damage that was repaired by Hacienda would be covered under the State Farm policy, but the Newmans do not indicate what damage occurred and was repaired by Hacienda. The Newmans assert that “to the extent” they are liable to Hacienda for damage repairs, State Farm would be liable. The allegations in the Third Party Demand do not constitute a judicial confession that Hacienda was entitled to reimbursement for all of the repairs it claimed it made, and this argument is without merit.

We now review the testimony and evidence at trial in order to address Hacienda’s claim that it proved by a preponderance of the evidence that it made all of the claimed repairs and is entitled to payment of $13,812.72.

At trial, Ramon Ramos, Sr., the President of Hacienda, testified that he went to the Newmans’ house on September 1, 2005 after Hurricane Katrina and made a list of the wind damage that he noted. The list indicates numerous items of damage, and Mr. Ramos testified that the fascia and soffit had been damaged, roof shingles had been bent and/or broken, the top part of the power ventilator was gone, the top part of the roof jacks were gone and the bottom parts were bent back. Mr. Ramos also testified regarding other damage and repairs that he made. He stated that he had taken some photographs of the New-mans’ damage in the days after the storm, but he no longer had them because his computer hard drive had failed.

Mr. Ramos testified that he used subcontractors to complete the repairs to the Newmans’ property, and he submitted invoices from the subcontractors in support of his claim. He stated that Kim Fernandez and his workers began repairing the Newmans’ roof on September 7, 2005. Mr. Ramos’ son, Ramon | sRamos, Jr., also testified that he saw roof damage and other damage at the Newmans’ house after the storm.

Kim Fernandez testified that he often works with Hacienda and that he put the original roof on the Newmans’ home and he made some repairs to the roof after Hurricane Katrina. Fernando Pastrana is a framer and carpenter and he testified regarding some repairs, including stucco repairs, that he made at the Newmans’ home after Hurricane Katrina.

Defendant, Welton Newman, testified that he returned to Jefferson Parish to check on his property on September 5, 2005, and his daughter took photographs of the property in order to document the damage. He testified that there was some damage to the garage, garage door, soffit, and fascia, and there were some “splashes of sand and water up in the foyer.” He also stated that he looked around the residence and did not see anything wrong with the roof or any stucco damage. He made a claim with his insurer, State Farm, and he received $9,834.75 for the damage to the house. According to counsel for the Newmans, State Farm later paid the New-mans $3,485 for alleged roof repairs. Mr. Newman testified that he first saw Mr. Ramos after the storm on October 20, 2005, and Mr. Ramos told him to file an insurance claim because he had extensive damage that Hacienda repaired. Mr. Newman also stated that Ms. Ramos came to the house when the adjustor was there to inspect it on November 4, 2005, and Mr. Ramos gave the adjustor paperwork indicating the damages Hacienda claimed to have repaired.

Mr. Hop Nguyen, who lives in Concord Estates, testified that he stayed during the hurricane and vigilantly watched and policed the neighborhood. He stated that he did not see any contractors or trucks driving around the neighborhood in the first few days after the storm, and he would have stopped them if he had seen them. He also testified that he did not see any contractors or |3workers performing work on roofs in the neighborhood during the 17 days after the storm, and he believes he would have seen Hacienda if they had repaired the Newmans’ roof during the week or two after the storm. He also testified that he did not really notice any damage at the Newmans’ house.

Kenneth Wollfarth, Sr. testified that he lives in Concord Estates near the New-mans’ house, and he evacuated for the storm but returned to assess his property damage on September 3, 2005. He took photographs of his property, particularly a fence that had come down, and the New-mans’ house can be seen in the background of the photos. No damage to the New-mans’ roof can be seen in these photos. Larry Commons testified that he lives in Concord Estates, but he stayed in Gretna during the hurricane. He went to his house on the day after the storm and two or three times during the week after the storm, but he did not see any construction or roofing crews in the area.

Chantel Newman, who is the defendants’ daughter, testified that she returned with her father, Welton Newman, to inspect their house on September 5, 2005, and saw very minimal damage. She did not observe any damage to the roof, such as bent or missing shingles, or aluminum vents peeled back or removed.

Kevin Nguyen testified and was accepted as an expert in data recovery. He inspected the computer hard drive that Mr. Ramos claimed contained pictures of the damage to the Newmans’ house but later failed. Mr. Nguyen stated that the hard drive was working properly, but there was no data on it. He also stated that the best way of erasing data from a hard drive is to remove the partition, and this hard drive did not have a partition when he inspected it.

After hearing the testimony and reviewing the exhibits, the trial judge found that Hacienda had only proven that it was entitled to $5,060.72 for the repairs it made to the Newmans’ house after Hurricane Katrina. In his reasons for judgment, 1inthe trial judge found that the evidence did not show that Hacienda ever performed the roof work or stucco repairs that it had described.

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Brown v. Seimers, 98-694, p. 6 (La.App. 5 Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556. The Louisiana Supreme Court has announced a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, through Dept. Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. Doe, 02-258, p. 3 (La.App. 5 Cir. 9/30/02), 829 So.2d 577, 579. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Id. Thus, where two permissible views of the evidence exists, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Gorman v. Allen, 02-962 (La.App. 5 Cir. 12/30/02) 836 So.2d 573, 577; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In the present case, the trial judge was presented with two opposing versions of what repairs were made after the storm, and he was required to make credibility determinations and choose between them. Hacienda and its witnesses claimed that it performed roof and other repair work at the Newmans’ house beginning on lu September 7, 2005 in order to repair damage caused by Hurricane Katrina. The Newmans’ witnesses testified that there was no damage to the Newmans’ roof after the storm and that Hacienda did not perform the roof work it claimed.

Based on the testimony, photographs, and other exhibits, we cannot say that the trial court was clearly wrong in finding the Newmans’ witnesses and evidence to be more credible, and in finding that Hacienda did not prove that it made the roof and stucco repairs that it claimed. Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s March 20,1999 judgment. All costs of this appeal are to be paid by appellant.

AFFIRMED.

      . Although the trial judge’s reasons for judgment do not indicate that he awarded Hacienda for # 9 on Plaintiff's Exhibit 16, which was $980.00 for sheetrock work, he apparently did so, because this amount was included in the total award.