author: DREW, J.

text:
    Ted MALANT and Trudy Malant, Plaintiffs-Appellants, v. WILLIS-KNIGHTON PIERREMONT HEALTH CENTER and John T. Mays, M.D., Defendants-Appellees.
    No. 44,988-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 8, 2010.

      Michael David Cox, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Lawrence Wayne Pettiette, Jr., Rendí B. Wiggins, Shreveport, for Appellee Louisiana Patients’ Compensation Fund.

      Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

|,Ted and Trudy Malant, plaintiffs in this medical malpractice action against the Louisiana Patient’s Compensation Fund (“PCF”), appeal from the Judgment Notwithstanding the Verdict (“JNOV”) granted by the trial court after the jury totally rejected plaintiffs’ demands. The Malants sought to recover for damages allegedly sustained when the doctor operated on the wrong knee. Nominal defendants were Dr. John Mays and the Willis-Knighton Pierremont Health Center (“WK”). Dr. Mays admitted he erroneously operated on Mr. Malant’s right knee when he intended to treat Malant’s left knee with arthroscopic surgery.

The Malants complained on appeal that the trial court abused its discretion in awarding inadequate damages for past lost wages, past medical expenses, and pain and suffering. Additionally, plaintiffs contended that the trial court erred in failing to award future lost wages and future medical expenses for Mr. Malant and loss of consortium for Mrs. Malant. Also at issue were the refusals of the trial court to admit into evidence the medical bill of Dr. Jerry Marlin and to award the Malants all court costs and all costs of prosecuting the action. The judgment of the trial court is affirmed in all respects.

PROCEDURAL BACKGROUND

Prior to the trial, the plaintiffs settled with Dr. Mays for $50,000, triggering the PCF statutory credit of $100,000 and party status in the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. Later, the Malants settled with WK for $56,000. The settlement was approved by the [ 2district court, giving the PCF a total statutory credit of $150,000. Plaintiffs continued the litigation against the PCF, alleging their damages exceeded $156,000.

Following a week-long trial, the jury denied any recovery to the Malants. In response to the jury interrogatories, the jury answered “No” to each of the following questions:

1. Have the plaintiffs established by a preponderance of the evidence that the actions of Dr. Mays were a substantial factor in causing harm to Mr. Malant?
2. Have the plaintiffs established by a preponderance of the evidence that the actions of the employees of Willis Knighton Pierremont Center were a substantial factor in causing harm to Mr. Malant?

Plaintiffs filed a Motion for a New Trial which was denied by the trial court and a Motion for JNOV which was granted by the trial court with this explanation:

At the trial the jury found for the defendant, the Louisiana Patient’s Compensation Fund. After review of the evidence, the Court is granting the Motion for Judgment N.O.V. It denied the Motion for New Trial and finds negligence on the part of Dr. John Mays. It is undisputed that Dr. Mays operated on the wrong leg of the plaintiff and Dr. Mays admitted that fact at trial. Still the facts show that the damage was minimal and not of long duration. At the trial the jury unanimously found that the defendant had no credibility as to the extent of his injury and the Court is in total agreement with this finding. In awarding damages for the plaintiff, the Court grants only the following damages. (Emphasis added.)
• $40,000 pain and suffering,
• $10,000 loss of income,
|,s* $11,033.94 the stipulated amount of medical expenses for physical therapy and care by Dr. Liu, and
• court costs to be divided equally between the parties.

All the damages were subject to the credit of $150,000 resulting in the Malants receiving no money beyond that obtained from the pretrial settlements. The Malants appealed.

FACTUAL BACKGROUND

Married in August 2003 to Trudy, Ma-lant had been employed as a heating and air conditioning technician at $18.00 per hour beginning approximately August 23, 2003. While engaged in this employment on March 3, 2004, Malant was in a serious, high-speed vehicular crash, resulting in a fatality. According to Malant, he was traveling about 60 to 65 MPH on a highway when a driver pulled into his path. Malant testified he was in and out of consciousness and had to be extracted from the wreckage with the Jaws of Life. Ma-lant sustained a broken left thumb, a torn medial meniscus in his left knee, bruising, and a fractured neck vertebra. He was transported to LSU Health Sciences Center, where he was hospitalized for two or three days.

On March 8, 2004, he first saw Dr. Mays at the Highland Clinic. Dr. Mays treated him on several occasions over the next few weeks. The doctor obtained an MRI of Malant’s left knee which showed the torn meniscus of the left knee and a mass behind the left knee in the popliteal fossa (hollow |4behind the knee). Because the location and appearance of the mass indicated it could have been cancerous, Dr. Mays scheduled Malant for two surgeries on his left knee: (1) repair of the torn meniscus, and (2) removal of the mass to rule out cancer. Malant consented to both procedures.

On May 17, 2004, Dr. Mays erroneously performed procedures on the right knee. When the doctor arrived in the operating room, the right leg had been prepped and draped. When he began the arthroscopic procedure, the doctor encountered a torn meniscus which he expected to find; he made repairs to the posterior horn of the medial meniscus and debrided approximately 10% of the total meniscus. The doctor discovered he was doing surgery on the wrong knee when he opened the rear of the right knee and found no mass. Dr. Mays stopped the procedure and went into the waiting room where he informed Mrs. Malant of his error and obtained her permission to perform the surgeries on the left leg while Mr. Malant was under general anesthesia.

Following the surgery, Malant had physical therapy but did not progress. At various times, he obtained and utilized walkers, a power wheelchair through his primary care physician, and a cane to assist the right leg.

As a result of the mistaken surgery, the Malants alleged that Malant’s right knee and leg did not heal properly. Plaintiffs asserted that Malant had continuous problems with his right knee and right popliteal fossa including right knee pain, decreased range of motion, sense of instability of the right knee, antalgic gait (limp), insomnia, impaired ability to work, limp-induced Rback pain with a herniated disc, and loss of consortium with his wife. The Malants also alleged that he had left knee pain secondary to an aggravated or retorn left meniscus. According to Ma-lant, he had no symptoms in his right leg prior to Dr. Mays’ surgery.

In Malant’s opinion, his right leg did not improve and at his sister’s recommendation, he saw Longview orthopedist, Dr. Liu, on June 21, 2004. Dr. Liu found “no effusions” (seepage of fluid into surrounding tissue) and “no instability in the right knee.” Malant had full extension of the right knee and did not go into reeurvatum (backwards bend) in the right knee. He ordered an MRI which revealed:

A small effusion is evident in the supra-patellar bursa. Extensive myxoid degeneration is noted involving the posterior horn of the medial meniscus. An obliquely oriented tear is noted extending to the undersurface of the posterior horn of the medial meniscus.

Dr. Liu’s notes from the June 28, 2004, visit stated that in reviewing the MRI with the Malants, the doctor stressed that the MRI did not show whether the tear was old or new, whether it was repaired and then retorn, or whether it was a pre- or post-operative problem. Dr. Liu explained to the Malants that the arthroscopy would not necessarily explain the age or cause of the tear. Based on Malant’s continuing pain, Dr. Liu recommended a diagnostic arthroscopic exam with repairs if appropriate. They discussed the possibility that Malant was “developing a complex regional pain syndrome with pain that is out of ordinary for the length of time or for the degree of pathology encountered.”

|fiDr. Liu performed surgery on Malant’s right knee on June 30, 2004. Dr. Liu’s operative report stated his final postoperative diagnosis was “right knee pain, possible meniscal tear with evidence of previous partial menisectomy.” While Malant was sedated for surgery, Dr. Liu examined his right knee and found:

no instability to medial or lateral stress. There was a negative Lachman and negative pivot shift.... Inspection of the patellofemoral joint with probing confirmed no chondral Assures or flap tear. There was some roughening of the medial femoral condyle but no displaceable tears.
Probing of the meniscus showed no dis-placeable flap tears. There was some foreshortening and roughening of the inner edge of the posterior third of the medial meniscus consistent with previous arthroscopic partial menisectomy. Probing this confirmed that the rim was stable with only minimal fibrillation. The fibrillated areas were debrided with articular shaver but felt to be clinically insignificant. There were no other lesions of the posterior horn of the medial meniscus.
The ACL was probed and found intact. The lateral compartment was carefully inspected and probed and the meniscus and articular cartilage was normal. A final sweep of the joint showed no further pathology.

Although he saw Dr. Liu several times post-surgery, Malant concluded that his right leg was worse. Malant testified he was suspicious of Dr. Liu and maintained that Dr. Liu’s records did not accurately reflect his complaints, which Dr. Liu substantially downplayed. The Malants characterized as “untrue” Dr. Liu’s notation of July 9, 2004: “Subjectively he feels better.”

Malant last saw Dr. Liu on September 1, 2004. His examination revealed that Ma-lant had good range of motion with no recurvatum or hyperextention. Dr. Liu found “no evidence of cruciate laxity” with the |7knee “stable” with “no crepitance” (grating, cracking or popping sounds in joint). As to the brace, Dr. Liu opined he did not feel that Malant needed a brace other than for proprioceptive (relating to or being stimuli originating within an organism) support or psychological support. The doctor released Malant to return to work and told him his right knee was fíne. Dr. Liu stated there was no reason he would not expect Malant to have normal activity with a return to work and daily living. Because Malant had a return to good function of the right knee, Dr. Liu placed no restrictions on Malant’s release.

Since Malant felt he was getting worse, not better, Malant’s attorney referred him to Dr. Turgeon in Dallas, where Malant next sought treatment. Initially, the doctor made an extensive examination and noted Malant was hypersensitive to pain around the right knee. The doctor’s impression was “right knee pain, uncertain etiology.” Among possible causes of the pain were atypical RSD (Reflex Sympathetic Dystrophy), persistent post-menisec-tomy pain or some type of radicular symptoms. The doctor ordered a number of tests including an MRI and a bone scan. In addition, he prescribed a hinged knee brace.

Dr. Turgeon obtained MRIs of both knees on November 22, 2004, and found in the right knee “mild tricompartmental osteoarthritis, posterior horn medial meniscus tear, prepatellar and retropatellar bursitis and edema of the posterior cruciate ligament.”

Because he had not found any reason for Malant’s symptoms and sense of instability (except the possibility that it came from the low back, |8relative to which he deferred to a doctor specializing in back surgeries), on October 13, 2005, Dr. Turgeon performed a diagnostic arthroscopy and a physical examination while Malant was sedated.

Dr. Turgeon’s notes from surgery stated:

He had full range of motion, no effusion, no crepitance, negative McMurray, no collateral laxity of valgus or varus stress testing from 0 to 30 degrees, and negative pivot-shift, negative anterior drawer, and negative Lachman test with no posterior tibia sag.
[T]he medial compartment showed fraying consistent with a grade 2 chondro-malacia of the medial tibial plateau. There was some softening of the intact articular cartilage in the medial femoral area. I could see where the partial menisectomy had been performed near the junction of the posterior horn in the mid body, but a horizontal cleavage tear had taken over the rest of the posterior horn. This was trimmed back to a stable rim.... The PCL appeared healthy and its integrity was confirmed by blunt probing and arthroscopically.... The lateral compartment showed some tearing of the inner half of the lateral meniscus near the junction of the mid body of the anterior horn. [This] was trimmed back to a stable rim. There was chon-drosis of both articular surfaces. There was some fraying of the cartilage.

Dr. Turgeon’s office notes from Malant’s ■visit of October 18, 2005, stated the incisions had healed and the sutures were removed. Malant reported difficulty in getting around because his wife ran over his crutches and he felt the knee wanted to give way. In addition to generalized ehon-drosis of weight bearing surfaces, Malant had retorn the posterior horn of the lateral medial meniscus and there was some tearing of the lateral meniscus. Because there was no evidence of ligament instability to explain the sensation of the knee giving way, the doctor attributed this effect as coming from his back or knee discomfort. The doctor also noted it was important to wean Malant off pain medicine. He was to restart physical |9therapy twice weekly for six weeks and “progress his activities as tolerated.”

Dr. Turgeon referred Malant to Dr. Banta, a Dallas orthopedic surgeon specializing in back surgery; Dr. Vengrow, a neurologist; Drs. Bulger and Rodrigue, anesthesiologists and pain management specialists; and Dr. Marlin, a neurosurgeon.

Dr. Banta remarked that Malant reported his limp which the doctor observed in the office. The doctor’s conclusion that the limp caused Malant to have other medical problems is belied by the PCF’s surveillance video taken in October and November 2007 showing Malant had no gait or limp as he walked up and down the steps at the stadium during a Parkway High School football game. The parties stipulated that had the investigator testified, he would have set out the time frame of his observations and he did not observe Malant having a limp in his right leg or exhibiting back problems or pain.

DISCUSSION

Standard of Review

In Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00), 774 So.2d 84, the supreme court reviewed the requirements for granting a JNOV. The granting of the JNOV by the trial court following the jury’s rejection of the Malants’ demands is not at issue in this appeal. The Davis opinion explained that the appellate court reviews a JNOV using the manifest error standard of review.

1 mUnder the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In Jackson v. Tulane Medical Center Hosp. and Clinic, 2005-1594 (La.10/17/06), 942 So.2d 509, 513, the supreme court stated that to reverse a factfinder’s determination, an appellate court must review the record in its entirety:

and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the testimony, the court of appeal may find manifest error or clear wrongness even where the finding is purportedly based on a credibility determination. But where this situation does not exist, and a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

The supreme court discussed the manifest error standard of review in Hebert v. Rapides Parish Police Jury, 2006-2001 (La.4/11/07), 974 So.2d 635. When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the factfinder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where such factors are not present, however, and a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that Infinding can virtually never be manifestly erroneous or clearly wrong. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. These standards for manifest error review are not new and are the guiding principles that aid our review of a trial court’s factual determinations. Hebert, supra, at pp. 653-654.

The plaintiffs argue that Malant had absolutely no problems with his right knee before Dr. Mays performed surgery on the wrong knee. The plaintiffs maintained that the right posterior horn medial meniscus tear came into existence during or was aggravated by Dr. Mays’ erroneous right knee surgery and was the same tear that existed before Dr. Liu’s surgery. In the Malants’ view, Dr. Mays aggravated the original “complex tear” causing pain and removed part of the medial meniscus, which led to abrasive and erosive changes and more pain. Plaintiffs assert that Ma-lant’s mobility after surgeries by Dr. Mays and Dr. Liu was extremely limited and was very painful. He limped and had to wear a brace. Malant also claimed that he developed back problems due to the limp resulting from his right knee injury.

Plaintiffs allege that Malant had four surgeries due to Dr. Mays’ operating on the wrong knee plus a discogram of his back. Citing the testimony of Dr. Banta, they contend that Malant will need two back and neck surgeries and will have pain in his right knee for the rest of his life. Additionally, Dr. Turgeon testified that Malant may need a total knee replacement at some point.

112The Malants state that as a result of the erroneous surgery, Malant has been declared totally disabled by Social Security and began receiving SSI payments in September/October 2007. Additional consequences attributed to the erroneous surgery were Malant’s unemployment (with a small amount of part-time work he can no longer perform) and the couple’s bankruptcy-

Duration of Damages and Quantum for Pain and Suffering

Instead of the $40,000 pain and suffering award in the JNOY, the plaintiffs sought an increase to $175,000 plus an additional $250,000 arising from future neck and back surgeries. Basically, the Malants contend that the trial court arbitrarily cut off all damages following Dr. Liu’s surgery before Malant went to Dr. Turgeon in Dallas on September 21, 2004.

The PCF urged that there was nothing arbitrary about the trial court’s stopping the Malants’ damages following Dr. Liu’s treatment and physical therapy. The jury and the trial court clearly believed that the Malants were not credible and accepted the medical testimony that the damage was minimal and of short duration while rejecting the testimony of the Dallas doctors who attributed myriad health problems to the erroneous surgery on Malant’s right knee.

Carl Jackson, the physical therapist to whom Dr. Mays referred Malant following Mays’ procedures on both knees, testified about the course of physical therapy. The initial evaluation was performed on May 28, 2004. Throughout June, Malant reported that his left knee pain was lesser or minimal while his right knee was stiff with severe pain which Malant consistently rated 10 on a 1 to 10 scale. Malant also displayed a |lsmarked limp. On July 7, Malant reported severe pain in the right knee from which he got some relief immediately after treatment. However, the intense pain soon returned.

In July 2004, Dr. Liu also referred Ma-lant to Jackson for physical therapy. Ma-lant also told the physical therapist that Dr. Liu’s surgery on June 30 made the pain in his right knee worse. Shortly thereafter in July, the decision was made to discontinue the therapy because Malant was not making any progress due to his reported pain. On cross-examination, Jackson stated they used the same treatment on both knees. There was not a lot of pain in the left knee, which they were able to mobilize, while Malant did not tolerate the treatment attempts on the right knee.

Malant came in for a reevaluation on January 30, 2006, and reported 9 out of 10 pain in his right knee along with 9 out of 10 pain levels in his neck and low back. The physical therapist determined that Malant was not an appropriate candidate for physical therapy given the extent of physical impairment and the lapse of time from the last treatment. He was discharged until his pain decreased.

According to the plaintiffs, the trial court rejected the evidence of objective findings and testimony concerning Ma-lant’s condition as diagnosed and treated by Dr. Turgeon and the other Dallas specialists to whom he referred Malant. Plaintiffs asserted that much of their testimony and evidence was uncontradicted.

|14In response to the plaintiffs’ contentions that Malant had no back and right leg problems prior to the mistaken surgery on his right knee, the PCF introduced the following evidence:

Concerning Malant’s contention that he suffered debilitating pain from the procedures on his right knee, Dr. Mays testified he made only a skin incision on the back of the knee, but realizing his error, he did not cut nerve or muscle. According to Dr. Mays, the procedures on the right knee were very minor and should have caused no problems, noting that only one patient out of 10 even needs to have physical therapy.

All of plaintiffs’ objections to the quantum awarded by the trial court in the JNOV and by the trial court’s denial of certain elements of damages were based upon the trial court’s finding that the Ma-lants’ damages were “minimal and not of long duration.” In its September 3, 2008, judgment, the trial court agreed with the jury’s apparent finding “that the plaintiff had no credibility as to the extent of his injury.” The trial court also observed that the PCF was entitled to a credit of $150,000 with the result that the | ^plaintiffs took nothing, since the total awarded did not exceed the $150,000 PCF credit.

The jury and the trial court heard all the testimony and reviewed all the evidence, which contained a remarkable number of inconsistencies, contradictions, exaggerations, and untruths related to almost every aspect of the Malants’ version and interpretation of the alleged damages arising from the erroneous surgery performed by Dr. Mays. The jury rejected the Malants’ claims totally while the trial court reasonably granted the JNOV based upon the admittedly mistaken surgery on Malant’s right knee. Equally reasonable was the trial court’s agreement with the jury’s conclusion that Malant had no credibility concerning the extent of his injury.

Lost Wages

Instead of the $10,000 lost wages granted in the JNOV, the Malants sought for this court to increase that amount to the range of $80,500 to $97,000. Based upon his review of federal tax returns for 2004, 2005, and 2006 and W2s for 2005, 2006, and 2003, along with payroll records from Advanced Air Conditioning and Heating from January through early March 2004, the plaintiffs’ economic expert, Dr. Harju, testified that Malant earned $3,481.64 in 2004. Malant’s documentation revealed that Malant earned $6,604.00 from August to December 2003. The third element Dr. Harju used in his calculations was Malant’s hourly rate of $13.00. Using those three figures, Dr. Harju calculated that Malant had lost wages at a minimum |1fiof $19,635 annually. Dr. Harju also testified he had a payroll summary from Advanced Air Heating and Air Conditioning from January through December 2003 and 2005 through 2007.

The testimony revealed Malant had a varied and inconsistent work history filled with on-the-job injuries, worker’s compensation claims, and long periods of recovery. Malant worked as a hair stylist in Texas for approximately 15 years. In 1997, he worked for Davis International as an electrician’s helper, sustained an on-the-job back injury for which he obtained worker’s compensation and was off work. Approximately six months later, Malant obtained employment at an Iowa K-Mart, where he injured his left knee and received a worker’s compensation settlement. In 1998, Malant came to Shreveport and went to work in the HVAC (heating, ventilation, air conditioning) business. Less than two months later while employed with Lake-shore Air Conditioning, Malant was in a car accident and seriously injured his left wrist. He was on worker’s compensation for approximately four years until he settled his worker’s compensation claim in September 2002. In 2003, Malant went back to work and, while on the job, was involved in this car crash in early March 2004.

Using the testimony of a forensic accountant concerning Malant’s earning in 2005 and 2006, the PCF introduced evidence contradicting Malant’s testimony that he did not work in 2005, 2006, 2007, and 2008. In 2005, Malant was paid $9,300 from Burnside Builders according to that company’s records placed into evidence. Documentation of 2006 checks for Malant’s HVAC work from Burnside Builders to Malant contained the |17notation that the copies of checks filed into evidence were everything paid directly to Malant from 8/05 to 6/06 while “Everything else was paid through Air One as his employer. 2 checks for 1300.00 each paid to Air One 6/19/06 and 7/20/06.”

Relying on the testimony of its forensic accountant and Francis Mercer, an employee of Coburn’s Supply Co., Inc., the PCF introduced Coburn records that Ma-lant purchased HVAC equipment totaling $55,865.20 from December 22, 2004, through September 5, 2007, for Alpha Contracting Company.

The Chief Mechanical Inspector for Bossier City, Thomas J. Tanner, verified that people working in that city had proper license and permits. Tanner observed Malant installing air conditioning equipment in new homes on more than one occasion from 2005 until the present. Tanner observed Malant physically working, not just supervising, in 2006. Tanner testified he did not observe Malant limping. On more than one occasion, Tanner called Malant into his office to instruct him to stop working in Bossier City because he was not properly licensed and insured. On cross-examination, Tanner stated that when he showed up at jobs, people stopped working and he did not recall seeing Ma-lant lifting equipment or handling tools, but also said he would not have called Malant into his office if he had not been working.

According to the PCF, Malant’s income was not reported to the IRS or Social Security Administration when he sought permanent disability benefits. Further, Malant did not disclose the income when he filed for | TSpauper status in this litigation and when he filed for bankruptcy in 2007. Based on all the documentation contradicting Malant’s claim, the PCF urged that he is entitled to no recovery for lost wages.

Based upon his finding that Malant had a minimum loss of $19,635 annually and based upon the conclusion that Malant had 11.1 years of remaining work life, Dr. Har-ju calculated that Malant’s lost future wages were in a range of $253,222 to $424,039. The trial court rejected plaintiffs’ request for an award for future lost wages in the range suggested by Dr. Har-ju. Based on the foregoing examples of contradictions and inconsistencies in Ma-lant’s testimony and other evidence, the jury and the trial court must have found him lacking credibility and found that his damage from the admittedly mistaken surgery on his right knee had resolved by the time he left the care of Dr. Liu in September 2004. We find no manifest error in the trial court’s decision to limit the award for past lost wages to $10,000 (apparently covering the approximately six months from March until September 2004, the period in which Malant suffered some ill effects from the procedures on the unintended right knee) and to deny recovery for any future lost wages.

Medical Expenses

Instead of the $11,033.94 award of past medical expenses, the Malants contend on appeal they are entitled to past medicals of $74,499.81, future medical expenses of $107,999.00, and future anesthesia/physical therapy expenses of $184,000.00. Plaintiffs apparently derived these |13figures from the various and extensive procedures which Malant’s team of Dallas specialists opined would be required to repair his damage.

The Malants rely upon what they characterize as uncontradicted testimony of Dr. Banta concerning the medical need for and costs of future surgeries. This court’s review of the entire record has revealed that a reasonable basis exists for the factual finding upon which the JNOV was based; i.e., Malant lacked credibility as the extent of his injuries and his damage from Dr. Mays’ error was minimal and not of long duration. The trial court did not commit manifest error in awarding past medical expenses through Dr. Liu’s treatment and denying recovery for future medical expenses.

Loss of Consortium

Concerning the denial of Mrs. Ma-lant’s claim for lost consortium, the plaintiffs requested this court grant an award of $50,000. At one point in cross-examination, Mrs. Malant stated she was not asking the jury for money for herself and was only interested in her husband’s getting the medical attention he needed. Additionally, she testified that the only task she did now which she did not do prior to the surgery was cutting the grass. However, Malant stated that after the surgery he could still push the self-propelled mower “for about a little.” In later testimony, she stated she did not understand loss of consortium and wanted to receive funds to which she was entitled.

In response to the Malants’ claims that the damages from the erroneous surgery had impaired their ability to conceive a child, the PCF12nargued that both Malants “were caught in lies regarding their ability to maintain a sexual relationship.” Mr. Malant had a vasectomy on Valentine’s Day, February 14, 2008, while he was engaged to Trudy who denied knowing that he had gotten a vasectomy that day. She first stated they had broken up at that time. She also testified they were dating, but not a couple, and then she acknowledged they became engaged the December prior to the February 14, 2003, vasectomy. Her explanation was that she got the dates confused. She also said she knew about the vasectomy prior to their August 2003 marriage and because they wanted children, Malant had the vasectomy reversed after they married.

In the JNOV, the trial court did not grant Mrs. Malant an award for loss of consortium. In Crownover v. City of Shreveport, 43,521 (La.App.2d Cir.9/17/08), 996 So.2d 315, 320, this court stated:

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of financial support, (6) loss of aid and assistance, and (7) loss of fidelity; to be compensable, it is not necessary for a claim for consortium to include damages from each type of loss. Not every physical injury will result in a loss of consortium or other general damages. A loss of consortium award is a fact-specific determination, to be decided case-by-case, and is disturbed only if there is a clear showing of an abuse of discretion. Entitlement to loss of consortium damages is a question of fact which will not be reversed in the absence of manifest error. (Citations omitted.)

Based upon the facts elicited in this case, we discern no abuse of the trial court’s discretion in the factual finding that Mrs. Malant suffered no loss of consortium as a result of the surgery mistakenly performed on her |21husband’s right knee. In the absence of a clear showing of manifest error, we decline to reverse that ruling.

Denial of Dr. Marlin’s Bill

Although the jury entirely rejected plaintiffs’ claims of damages, the trial court accepted the testimony of Drs. Mays and Liu that Malant’s right knee damages were healed by the time Malant was discharged by Dr. Liu on September 1, 2004. Evaluation of expert testimony, including the resolution of conflicts in expert testimony and the factfinder’s decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous or clearly wrong. Hebert, supra. Having determined that Malant’s damages were minimal and resolved before Malant sought additional medical treatment in Dallas, the trial court properly denied admission of the neurosurgeon’s bill, since it was unrelated to any harm caused by the mistaken right knee surgery. A review of the record establishes a reasonable factual basis for this evidentia-ry ruling which was neither manifestly erroneous nor clearly wrong.

Assessment of Court Costs

Following the jury trial and based upon evidence adduced at trial, the PCF filed a Motion to Traverse the Malants’ pauper status. At the hearing, evidence was introduced showing the checks Malant received from Burnside Building and Remodeling and his purchase of air conditioning equipment at Coburn’s Supply Company. The funds the Malants received in settlement of their claims against Dr. Mays ($50,000) and WK ($56,000) were also noted. Their bankruptcy filing showed that the Malants valued |22their home at $190,000 (subject to a mortgage of $130,440) and listed their in-ground swimming pool on which they owed $50,578 and a truck on which they owed $31,098. Other debts listed in the bankruptcy were also presented for the trial court’s consideration. On September 3, 2008, the trial court granted the PCF’s Motion to Traverse and revoked and reversed the plaintiffs’ pauper status.

In December of 2008, plaintiffs sought supervisory review in 44,349-CW, complaining about several issues related to their proceeding in form,a pauperis. On February 5, 2009, this court denied the writ in part, granted the writ in part and remanded with instructions. Because the trial court’s apportionment of court costs was reviewable on appeal, this court denied relief. Based upon the showing made by the Malants, this court held the exercise of this court’s supervisory jurisdiction was not warranted and denied relief on the Malants’ requests (1) to proceed on appeal as paupers and (2) to roll the costs of the appeal into their Chapter 13 bankruptcy action.

The district court clerk required that all unpaid court costs had to be paid prior to the preparation of the appellate record. In reviewing the writ application, this court reversed the trial court’s refusal to alter the district clerk of court’s calculation of costs. In Burks v. McKean, 544 So.2d 502 (La.App. 2d Cir.1989), this court held that the only costs the clerk could collect before the clerk prepared the appellate record are those set out in La. C.C.P. art. 2126, or the estimated costs of preparation of the record on appeal, the fee of the court reporter for preparing the transcript, and thejjgfiling fee of the appellate court. On remand, this court ordered the district clerk to issue a new notice of estimated appellate costs limited to those items set out in this court’s writ order.

On appeal, the plaintiffs argued that because they prevailed at trial, the trial court committed manifest error and acted contrary to the interests of justice in failing to cast the PCF with all court costs and costs of prosecuting the claim including the expert witnesses’ fees. In the PCF’s view, the trial court properly split the costs between the parties. The plaintiffs received no money from the JNOV, as the damages awarded were less than the credit to which the PCF was entitled.

Since the Malants’ pauper status was revoked, plaintiffs were not entitled to the provisions of La. C.C.P. art. 5186, requiring the party against whom judgment is rendered in favor of a pauper to pay all costs.

La. C.C. P. art. 1920 states:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. (Emphasis added.)

La. R.S. 18:4533 sets out expenses that are allowed to be taxed as costs, which include “the costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court.” The trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. In re Succession of Pitman, 42,654 (La.App.2d Cir.10/24/07), 968 So.2d 871.

laJn this case, the trial court heard all the testimony about the Malants’ income, reported and unreported; financial situation; and property. In assessing costs, the trial court stated in open court and the September 4, 2008, judgment specifically provides that “the clerk of court costs are to be divided evenly between the parties.” Thus, the Malants and the PCF are each paying half of only the costs attributable to the clerks of the district and appellate courts. The trial court’s ruling leaves the parties responsible for paying their own experts, deposition costs and other expenses incurred in preparation for trial.

The trial court’s revocation of the Ma-lants’ pauper status was reasonable in view of the evidence presented about the plaintiffs’ financial situation. We find no manifest error or clear wrong in the trial court's carefully considered division between the parties of the direct costs of the clerks of court while leaving each side responsible for all other expenses they incurred in pursuing and defending this litigation.

CONCLUSION

This record clearly contains a reasonable factual basis for each factual finding from which plaintiffs seek relief on appeal. Our review of the record reveals no clear wrong or manifest error. The jury and the trial judge heard the testimony and were in the best position to evaluate variations in demeanor and tone of voice that influence heavily the listener’s understanding and belief in what is said. The factfin-der’s decision to credit the testimony of one of two or more witnesses and reject others can virtually never be manifestly erroneous or clearly wrong. The rule that questions of Incredibility are for the trier of fact also applies to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony.

The factfinders accepted the testimony of Drs. Mays and Liu regarding the alleged harm from the unintended erroneous surgery on Malant’s right knee and the short duration of the ill effects. Clearly, the jury and the trial court heard and rejected both Malants’ version of events and that of the doctors who treated Malant after he left Dr. Liu’s care.

DECREE

The judgment is affirmed in all respects, with all costs attributable to the clerk of the Second Circuit Court of Appeal to be divided equally between the plaintiffs and the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . The JNOV states that the credit to which the PCF is entitled totals $150,000 while at other places in the record, the amount of the credit is stated to be $156,000. Since the total amount awarded in the JNOV totals $61,033.94, this discrepancy is not relevant to the resolution of this appeal.

      . The trial court obviously misspoke when referring to the "defendant,” since its reference clearly pertained to the claimant, Ted Malant. This was corrected in the JNOV.

      . The trial court clarified that the court costs to be split were those attributable to the Clerk of Court.

      . Fibrous cartilage within a joint; either of two crescent-shaped lamellae of fibrocartilage that border and partly cover the articulating surfaces of the tibia and femur at the knee.

      . Myxoid means containing mucus.

      . Plaintiffs’ total award in the JNOV was $61,033.94, consisting of $40,000 for pain and suffering, $10,000 for lost wages, and $11,033.94 for medical expenses.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. J.D.
    No. 09-995.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    John Foster DeRosier, District Attorney-Fourteenth Judicial District, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for State-Appellee, State of Louisiana.

      William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant-Appellant, J.D.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| .FACTS

On January 19, 2006, the victim, then five years old, was at her grandmother’s residence with her seven-year-old sister and the defendant, who was her step-grandfather. Later that evening, the victim made an allegation that the defendant had sexually assaulted her.

On March 2, 2006, the state filed a bill of indictment charging the defendant, J.D., with one count of sexual battery and one count of aggravated rape, violations of La. R.S. 14:43.1 and La. R.S. 14:42(A)(1), respectively. At an arraignment held on April 17, 2006, the defendant pled not guilty. After pretrial activity which included a substitution of counsel, the parties selected a jury on September 16 and 17, 2008.

The jury heard opening statements and evidence on September 17 and 18. On September 19, the state elected to nolle prosse outright the sexual battery count. The jury then heard closing arguments and found the defendant guilty of the remaining charge, aggravated rape.

On October 24, 2008, the trial court sentenced the defendant to life in prison without benefit of probation, parole, or suspension of sentence.

The defendant now appeals his conviction, assigning three errors.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

\.ASSIGNMENTS OF ERROR
1. There is insufficient evidence to prove the guilt of defendant for the offense of aggravated rape beyond a reasonable doubt.
2. The trial court erred in denying the Motion for New Trial.
3. The sentence imposed is excessive for this offender and this offense.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues the evidence adduced against him at trial was insufficient to support his conviction. The analysis for such a claim is well-established:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

La. R.S. 14:41, defines rape:
A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

| /The jury convicted the defendant of aggravated rape. The statute defining aggravated rape is La. R.S. 14:42. It states, in pertinent part:

A. Aggravated rape is a rape committed upon a person ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

In the present case, the defendant specifically argues the state failed to prove that sexual penetration occurred. He acknowledges the victim’s testimony, but states, “There was no evidence that the child understood the concept of penetration.”

The victim testified that the defendant “sticked [sic] his thing in [her] butt.” Her great-grandmother testified, “She said he took out his weenie and put it in her and it hurt her.” Corporal Deveda Benoit, a deputy with the Calcasieu Parish Sheriffs Office, testified the victim pointed to the anal and vaginal areas of a doll and said, “[J.D.] stuck his weenie here.... [J.D.] stuck his weenie in here, too.” Further, during the victim’s recorded statement she said he put his penis in her mouth.

Even if the defendant is correct that the young victim does not understand “penetration,” surely she understood what it meant to stick an object into another object or area. Although expressed in a child’s language, her allegation against the defendant is quite clear and understandable.

The defendant also argues that the physical evidence did not support the victim’s testimony. For example, he notes medical testimony that the child’s hymen was intact. He notes that a nurse found a small cut in the area between the victim’s Lvagina and anus, and that there was redness in her vaginal and rectal areas. However, he argues the cut could have been caused by a broken toilet seat and the redness could have been caused by improper hygiene. On cross-examination, the state’s medical expert acknowledged he could not negate non-sexual causes for the redness and the cut. During the cross-examination of the great-grandmother, trial counsel asked about the condition of her toilet seats, and she stated that hers were in good condition. The victim’s grandmother testified that the toilet seat in her trailer was torn and that the victim had used that toilet.

As for hygiene, the great-grandmother admitted, in her direct testimony, that she bathed the children every other night, not every night. The Sexual Assault Nurse Examiner, Lavita Figueroa, opined that the redness around the victim’s vagina and anus would not be caused by hygienic issues.

The defendant acknowledges the presence of seminal fluid on the victim’s panties, but states the DNA expert could not say how it got onto the panties. Further, he argues that the fluid could signify emission without penetration. Laboratory testing revealed semen and blood on the panties, and blood on the vaginal swabs.

The DNA expert, Leanne Suchanek, testified that the semen sample was consistent with DNA from the defendant. Su-chanek also stated that, statistically, the DNA profile would be seen in only one in 450 trillion people. Asked whether the defendant could be identified, “to a scientific certainty,” as the donor of the seminal fluid at issue, Suchanek answered in the affirmative. Therefore, it is clear that the defendant engaged in some form of sexual activity with the victim.

| .^Regarding the specific issue of penetration, the victim’s testimony provided direct evidence that such an act occurred. Combining this testimony with the evidence already mentioned, i.e., the defendant’s DNA found in seminal fluid in the victim’s panties, redness in the victim’s vaginal and anal areas and blood in the victim’s panties, we cannot say that the jury was unreasonable in finding the defendant guilty. While the victim’s hymen was intact, even the slightest degree of anal, vaginal, or oral penetration is legally sufficient to support the conviction. La. R.S. 14:41(B). The state’s medical expert observed that even a slight amount of anal penetration would cause discomfort to a child, and the tear found on the victim’s perineum could have been caused by rubbing the penis between the vaginal lips.

The defendant also notes a cell phone video recording, made by the victim’s mother, in which the young girl recanted her previous statements. However, as noted earlier, the victim testified that the defendant “sticked [sic] his thing in [her] butt.” That statement was supported by the physical evidence. The credibility assessment of the child’s testimony was within the jury’s discretion. That assessment will not be second-guessed on appeal. The defendant also mentions the grandmother’s testimony that the defendant had a large penis and erectile dysfunction. Again, the credibility and weight of such testimony were within the jury’s province. After viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

For the reasons discussed, this assignment lacks merit.

| (¡ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues the trial court erred by denying his Motion for Mistrial. The motion for a mistrial was filed after the conclusion of the trial but before the sentencing. Although entitled “Motion for Mistrial,” the trial court treated the motion as a motion for a new trial. We will review the denial of the motion as a denial of a motion for a new trial. The motion was based on an affidavit by the grandmother, and it alleged that the great-grandmother had encountered jurors outside the courtroom and had made negative comments to them about the defendant.

At the hearing on this motion, the grandmother, the great-grandmother, and three members of the jury testified. The grandmother was the first witness, and her testimony was congruent with her affidavit. She claimed that she saw the great-grandmother talking to a black female juror in the presence of other jurors. Further, she testified that the great-grandmother said the defendant was “angry all the time.” The grandmother identified two women in court as having been present during the conversation.

These two women were later identified as alternates, and each testified that she did not speak to the great-grandmother. One of the women, Anita Simpson, stated that she had seen the great-grandmother speak to an African-American female, who was not a juror, during the trial. Thus, Simpson speculated that the grandmother might have been confused: “[She] might have her people mixed up.”

17The state also called the lone African-American female juror to testify. She also testified that she did not speak to the great-grandmother. The great-grandmother testified that she did not speak to any jurors during the trial.

At the close of the hearing, the trial court explicitly found the grandmother’s testimony to be incredible, and denied the motion. The court was well within its discretion. See, e.g., State v. Daigle, 07-928 (La.App. 3 Cir. 1/30/08), 974 So.2d 869; State v. Harrell, 607 So.2d 661 (La.App. 3 Cir.1992).

Therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, the defendant argues that his life sentence was excessive. We note this sentence was mandatory, given the defendant’s conviction for aggravated rape. La. R.S. 14:42(D). As the state points out, no motion to reconsider was filed below, thus the defendant is limited on appeal to a bare claim of excessiveness. La.Code Crim.P. art. 881.1, State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201.

The analysis for such claims is well-established:

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

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In a recent case involving the aggravated rape of a child victim, this court stated:

The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This is the mandatory sentence for aggravated rape if the victim is under thirteen years of age. La. R.S. 14:42(D)(2)(b).
In State v. Foley, 456 So.2d 979, 981 (La.1984), the supreme court discussed the penalty for aggravated rape as follows:
The mandatory life sentence for aggravated rape is a valid exercise of the state legislature’s prerogative to determine the length of sentence for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Farria, 412 So.2d 577 (La. 1982); and State v. Talbert, 416 So.2d 97 (La.1982).
In light of the court’s reasoning in Foley, we find the defendant’s sentence is not excessive and that this assignment of error lacks merit.

State v. H.J.L., 08-823 pp. 7-8 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, 343, writ denied, State ex rel. Lantz v. State, 09-606 (La.12/18/09), 23 So.3d 936.

This assignment lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Samuel Lee TATE, Jr.
    No. 09-911.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    William E. Tilley, District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Samuel Lee Tate, Jr.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   AMY, Judge.

LThe defendant pled guilty to possession of Ecstacy. He was sentenced to five years imprisonment at hard labor and ordered to pay a $1,500.00 fine plus court costs. The defendant was advised that he was not eligible for diminution of his sentence. The defendant now appeals, asserting that the trial court erred in advising him he was not eligible for diminution of his sentence. For the following reasons, we affirm the defendant’s sentence and remand the case with instruction to amend the trial court’s sentencing minutes.

Factual and Procedural Background

The defendant was initially charged by bill of information for possession of methy-lenedioxymethamphetamine (Ecstacy), possession of methamphetamine, possession of marijuana; possession with intent to use drug paraphernalia to pack, repack, store, contain, conceal or inhale, ingest or otherwise introduce a controlled dangerous substance into the human body, and; operating a motor vehicle without a license. Pursuant to a plea agreement, the defendant pled guilty to possession of ecstacy, a violation of La. R.S. 40:966(0, and the remaining counts were dismissed by the State. In addition to dismissing the remaining counts, the State agreed to not charge the defendant as a habitual offender in exchange for his plea.

On May 26, 2009, the trial court sentenced the defendant to five years imprisonment at hard labor and ordered him to pay a fine of $1,500.00 plus court costs. The defendant filed a Motion to Reconsider his sentence, which was denied by the trial court.

The defendant now appeals, asserting that the trial court erred in advising him that his sentence was not subject to diminution for good behavior.

|2Discussion

Diminution of Sentence

The defendant asserts that the trial court erred in advising him that his sentence was not subject to diminution for good behavior. At the sentencing hearing, the trial court stated, as follows:

The sentence of the coui’t is that you serve five years at hard labor with the Louisiana Department of Corrections and a[sic] pay fine of one thousand five hundred dollars plus court costs. I’ll give you credit for time served since the date of your arrest and this sentence is to run concurrent with any other sentence that he is subject to. I advise you sir, that pursuant to the Code of Criminal Procedure, Article 894.1 D, your sentence is not subject to diminution of [sic]-for good behavior due to your prior convictions and your sentence was not enhanced upon the basis of any habitual offender proceedings.

Louisiana Code of Criminal Procedure Article 894.1(D) states that:

D. Immediately following the imposition of a felony sentence pursuant to this Article, the sentencing court shall advise the offender in open court of each of the following:
(1) Whether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is subject to diminution for good behavior.
(2) Whether the sentence imposed was enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law.

The defendant argues that the trial court lacked authority under La. R.S. 15:573.1(C) to deny him eligibility for diminution of sentence because the statute is exclusively directed toward the Department of Corrections. In State v. Narcisse, 97-3161 (La.6/26/98), 714 So.2d 698, the court held, as follows:

[A] trial judge lacks authority under La. R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is “directed to the Department of Corrections exclusively.” State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661. Moreover, even the Department of Corrections lacks that authority under La. R.S. 15:571.3(0 in a case in which the trial court has not formally adjudi-eated and sentenced the defendant as a multiple offender under the provisions of La. R.S. 15:529.1. When the | .^sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge’s discretion should be exercised under La.C.Cr.P. 890.1(B).

In the present case, the trial court did not violate the holding in Narcisse in that the trial court merely advised the defendant pursuant to his obligation under La. Code Crim.P. art. 894.1 that he was not eligible for diminution of sentence; it did not deny eligibility for diminution of his sentence. Accordingly, the defendant’s sentence is affirmed.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the fact of the record. After a review of the record, we find one error patent requiring further action.

The sentencing transcript indicates that the trial court ordered the defendant to pay a fine and court costs. However, the sentencing minutes only mention the trial court’s order of the fine. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, we remand this case, and the district court is instructed to make the necessary corrections in the minutes.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed. However, the case is remanded, and the district court is instructed to amend the minutes of the defendant’s sentencing to indicate the trial court’s order directing the defendant to pay court costs.

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTION TO CORRECT SENTENCING MINUTES.


author: SAUNDERS, Judge.

text:
    Troy Edward DEROUEN v. Leo NELSON, Jr., et al.
    No. 09-467.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Julian Louis Gibbens, Gibbens & Stevens, New Iberia, LA, for Defendant Ap-pellee Leo Nelson, Jr., Melanie Bourda Nelson.
    Robert Michael Franeez, Voorhies & Labbe, Lafayette, LA, for Plaintiff Appellant Troy Edward Derouen.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

liThis case involves interpretation of a contract that does not involve any factual findings by the trial court as to whether acceptance to an irrevocable offer is effective if the offeree failed to give the offeror any notice of the acceptance. The trial court, under La.Civ.Code art. 1934, found that the language of the purported contract necessitated that the buyer/offeree must give the seller/offeror notice of his acceptance in order for that acceptance to be effective.

We affirm, finding that the general rule of La.Civ.Code art. 1934 was not abrogated by the language of the purported contract. Further, we deny the buyer/of-feree’s request for attorney’s fees and the seller/offeror’s request for damages for frivolous appeal.

FACTS AND PROCEDURAL HISTORY:

Troy Edward Derouen (Derouen) was renting property via an oral lease from Leo Nelson (Nelson) when the parties entered in talks for Derouen to purchase the property from Nelson. Thereafter, Der-ouen went to Mynex Lending Services, which is a company that assists borrowers in obtaining financing to purchase property.

Mynex advised Derouen that a written agreement was necessary to purchase immovable property. Mynex prepared a document in order for Derouen to purchase the property from Nelson. The document provides, in pertinent part:

OFFER: In the event this offer is not accepted by the Seller herein above described by 2-21-06 (DATE) 12 PM AM/PM (TIME) this offer shall be deemed revoked.
CONTRACT: This is a legally binding contract when signed by both Seller and Buyer. READ IT CAREFULLY. If you do not understand the effect of any part seek legal advice before signing. Buyer has read and acknowledged receipt of a copy of this offer. This agreement and any supplement, addendum or modification relating hereto, including any photocopy or facsimile thereof, may be executed in two or more | ^counterparts, all of which shall constitute one and the same writing.

Nelson signed the purported contract on February 20, 2006, and noted the date by his signature. Derouen claims to have signed the purported contract prior to 12PM on February 21, 2006, but failed to note this next to his signature. Further, Derouen admitted that neither he nor My-nex ever sent Nelson a fully executed copy of the document.

A closing on the sale was first scheduled for March 8, 2006. Prior to that closing, Nelson indicated that he would not appear at the closing and was not going to sell the property to Derouen. Thereafter, Der-ouen sent written notice to Nelson stating that he still wanted to purchase the property and that a closing was scheduled for March 15, 2006. Again, Nelson did not attend the scheduled closing.

Derouen filed suit against Nelson seeking to enforce the document as a contract to sell the property, and seeking to recover attorney’s fees under the terms of the purported contract. Nelson denied that there was ever a contract and filed a re-conventional demand against Derouen for matters not pertinent to this appeal.

On April 21, 2008, a trial on the merits was conducted, and the matter taken under advisement. By written reasons for judgment dated May 8, 2008, the trial court ruled in favor of Nelson, denying all relief sought by Derouen. Derouen filed a motion for a new trial, but this motion was denied. Derouen then filed this appeal alleging two assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that for Derouen’s acceptance to be effective, it must have been received by Nelson, or a person authorized to receive acceptance, no later than 12:00 PM on February 21, 2006.
2. The trial court erred in finding that because the evidence does not reflect that Nelson was notified or in possession of Derouen’s acceptance within the time | .¡stated in the purported contract, the acceptance was not effective and no contract of sale was formed between the parties.

ASSIGNMENT OF ERROR NUMBERS ONE AND TWO:

In his first assignment of error, Derouen contends that trial court erred in finding that in order for his acceptance to be effective, it must have been received by Nelson, or a person authorized to receive acceptance, no later than 12:00 PM on February 21, 2006. In his second assignment of error, Derouen contends that the trial court erred in finding that because the evidence does not reflect that Nelson was notified or in possession of Derouen’s acceptance within the time stated in the purported contract, the acceptance was not effective. Derouen’s two assignments of error posit the same question: does the language of the purported contract necessitate that Nelson receive Derouen’s acceptance to his irrevocable offer in order for that acceptance to be effective? If the answer is in the affirmative, then the rest of Derouen’s issues argued in this brief are pretermitted, as Derouen admitted that he failed to give Nelson his acceptance prior to the 12PM deadline on February 21, 2006.

When a trial court’s interpretation of a contract is not based upon any factual findings, but, rather, is based upon a review of the contract’s language, the manifest error standard of review does not apply. Conoco, Inc. v. Tenneco, Inc. By and Through Tennessee Gas Pipeline Co., 524 So.2d 1305 (La.App. 3 Cir.1988), writ denied, 525 So.2d 1048 (La.1988). A finding regarding whether it was necessary for notice of Derouen’s acceptance to be given to Nelson, as per the language of the purported contract, is not a finding based upon any fact. Thus, the manifest error standard of review is inapplicable to these assignments of error, and we will conduct a de novo review of the purported contract to interpret its meaning regarding this | tissue.

“Interpretation of a contract is the determination of the common intent of the parties.” La.Civ.Code art. 2045. ‘When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art. 2046.

Louisiana Civil Code Article 1927, in pertinent part, states, “A contract is formed by the consent of the parties established through offer and acceptance.” “An offer that specifies a period of time for acceptance is irrevocable during that time.” La.Civ.Code art. 1928. “An irrevocable offer expires if not accepted within the time prescribed in the [La.Civ.Code art. 1928].” La.Civ.Code art. 1929. “An acceptance of an irrevocable offer is effective when received by the offeror.” La. Civ.Code art. 1934.

The document in the case before us, in pertinent part, states, “OFFER: In the event this offer is not accepted by the Seller herein above described by 2-21-06 (DATE) 12 PM AM/PM (TIME) this offer shall be deemed revoked.”

We find the words of the document cited above to be clear and lead to no absurd consequences. The offer made by Nelson to Derouen was irrevocable until February 21, 2006, at 12:00 PM. Under La.Civ.Code art. 1934, Derouen’s acceptance of Nelson’s offer is effective only when Nelson has received it. Derouen admits that he failed to give his acceptance to Nelson prior to the expiration of Nelson’s irrevocable offer. Thus, under the clear language of the document, Nelson’s offer was revoked pri- or to Derouen’s acceptance becoming effective. Accordingly, the document is not a contract, as there was no acceptance of the irrevocable offer when it existed.

|sDerouen first contends that the language cited above does not require him to do anything by a certain time, as it only references Nelson’s duty, i.e. the seller, to accept the offer by a certain date and time. Derouen’s contention is misguided.

Under Derouen’s proposed interpretation, Nelson would have to accept his own offer by a certain date. This is an interpretation that leads to an absurd consequence as referenced by the text of La.Civ. Code art. 2046. Nelson is the seller/offer- or. Acceptance of his offer, as an irrevocable offer, is not effective until he receives acceptance to that offer. This is the only interpretation of the language of the document that is plausible.

Further, were this court to give any credence to Derouen’s proposed interpretation, this would necessitate a finding by this court that the language of the document is ambiguous. Given that it is Der-ouen’s agent, Mynex, that drafted the document, we would have to interpret the document against him. See Aptaker v. Centennial Ins. Co. of New York, 198 So.2d 188,189 (LaApp. 1 Cir.1967).

Derouen next argues that the general rule pertaining to irrevocable offers found in La.Civ.Code art. 1934 was modified under the clear language of the document. The language that Derouen hinges his argument upon is the following:

CONTRACT: This is a legally binding contract when signed by both Seller and Buyer. READ IT CAREFULLY. If you do not understand the effect of any part seek legal advice before signing. Buyer has read and acknowledged receipt of a copy of this offer. This agreement and any supplement, addendum or modification relating hereto, including any photocopy or facsimile thereof, may be executed in two or more counterparts, all of which shall constitute one and the same writing.

Derouen focuses in on the first sentence of the paragraph, “[t]his is a legally binding contract when signed by both Seller and Buyer.” According to Derouen, given that both Derouen and Nelson signed the document, it became a binding [¡¡contract when both parties signed it. Like the trial court, we are not convinced.

Nelson has a right or benefit established for him by La.Civ.Code art. 1934 to not have acceptance to his irrevocable offer be effective until he receives that acceptance. It is true that under La.Civ. Code art. 1971 that “[pjarties are free to contract for any object that is lawful, possible, and determined or determinable.” However, as our supreme court stated in Aldredge v. Aldredge, 477 So.2d 73, 75 (La.1985), “[i]n order for such a waiver of benefits established by law to be valid, it must be expressly, knowingly and voluntarily made[.]”

The language that Derouen cites need be strained to take on the meaning that Derouen proposes. This is certainly not an express warning to Nelson of his alleged waiver. Rather, that language is of a context warning that the document is potentially a binding contract once signed, thus, one should heed its contents or seek legal advice prior to signing it.

Further, even if we were to find the language cited by Derouen to be express, there is no evidence in the record that Nelson knowingly or voluntarily waived his right under La.Civ.Code art. 1934 to have acceptance of his irrevocable offer ineffective until he receives the acceptance to that offer. Therefore, we find that Der-ouen’s two assignments of error are without merit.

ANCILLARY MATTERS:

Derouen requests that this court award him attorney’s fees, as the purported contract calls for such payment of such fees should a party seek to enforce it. Given that we found the document was not a valid contract and Derouen is not entitled to specific performance under its terms, it follows that any rights asserted under that document, including the requested attorney’s fees, is also denied.

|7Nelson properly requested that this court award damages to him for frivolous appeal. We decline to do so.

This court, in Sigler v. Grace Offshore Co., 95-357, p. 6 (La.App. 3 Cir. 10/4/95), 663 So.2d 212, 215, stated the following:

[Louisiana Code of Civil Procedure] Article 2164 authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks merit.

We find that Derouen, while his appeal lacks merit, did believe in the position he proposed. Notwithstanding the rule of La. Civ.Code art. 1934, A reasonable layperson could find that the language cited in the document could be interpreted to mean that the document became a contract upon two parties signing it. We found no merit in Derouen’s assignments of error based on jurisprudence not brought forth by Nelson.

Moreover, with regard to Derouen taking this appeal solely for delay, this appeal, while it was originally brought suspensively, is before us devolutively. Thus, the judgment of the trial court against Der-ouen went into effect when it was rendered. As such, this appeal by Derouen did not provide him with any apparent advantage with respect to delaying enforcement of the trial court’s judgment. Accordingly, we deny Nelson’s request for damages for frivolous appeal.

CONCLUSION:

Derouen raised two assignments of error. We found no merit in either assignment. Therefore, we affirm the trial court’s judgment that the document was not an enforceable contract. Derouen’s request for attorney’s fees, and Nelson’s | ¿request for damages for frivolous appeal are denied. All costs of this appeal are to be paid by Derouen.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Todd Andrew JONES.
    No. 09-937.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      James C. Downs, District Attorney, Michael W. Shannon, Assistant District Attorney, Ninth Judicial District Court, Alexandria, LA for Plaintiff/Appellee-State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant-Todd Andrew Jones.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| ^Defendant, Todd Andrew Jones, appeals his jury conviction of attempted indecent behavior with a juvenile, violations of La. R.S. 14:81(A) and 14:27, on the basis of insufficiency of the evidence. Because we agree that the evidence is insufficient to sustain a verdict of guilty, we reverse Defendant’s conviction, order the entry of a judgment of acquittal, and vacate his sentence of one year at hard labor.

LAW AND DISCUSSION

Defendant argues that the State failed to prove specific intent on the part of Defendant to sexually arouse himself or the victim and that the sexual comment made was not “lewd and lascivious” such that would warrant a conviction for attempted indecent behavior with a juvenile.

When reviewing sufficiency of the evidence, an appellate court must determine, in a light most favorable to the prosecution, whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Defendant was charged with a violation of La. R.S. 14:81(A)(1), which provides:

Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desire 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.

The State has to prove that: (1) there was an age difference of at least two years and the victim was under the age of seventeen; (2) the accused committed a lewd or lascivious act upon the person or in the presence of the child; and, (3) the ^accused had the specific intent to arouse or gratify either his own or the victim’s sexual desires. State v. Robinson, 43,063 (La.App. 2 Cir. 2/13/08), 975 So.2d 853.

Defendant was convicted of the lesser and included offense of attempted indecent behavior with a juvenile. Louisiana’s attempt statute provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14:27.

Accordingly, in order to have convicted Defendant of the lesser and included offense of attempted indecent behavior with a juvenile, the jury would have had to find that the Defendant specifically intended to commit a lewd and lascivious act upon the victim, or in the victim’s presence, and did an act in furtherance thereof. State v. Gaspard, 02-1040 (La.App. 3 Cir. 3/5/03), 841 So.2d 1021.

At trial, the victim, J.D., testified that on the evening of February 20, 2007, he visited his girlfriend in her home. At the time, he was fifteen years old. The girlfriend’s mother and her uncle, Jerry What-ley, were present. Defendant was there visiting with Whatley. The victim stated that the two men were sitting in Whatley’s bedroom talking when he walked into the room and asked Defendant to give him a ride to the store. Defendant said, “You couldn’t get somethin’ for nothin.’ ” When he asked Defendant what he meant, J.D. testified that Defendant “told me to put my dick in his mouth.” J.D. said that he immediately left the room and told his girlfriend’s mother. She told him to call his mother, who called the police.

On cross-examination, J.D. stated he had seen Defendant at the house on previous occasions. He stated that when he walked into the bedroom, the two men |,owere fully clothed and sitting on the bed. He recalled that the first time he walked into the room, Whatley had made a comment about wanting to see some pubic hair. J.D. stated that Defendant’s statement did not get him sexually aroused and he did not know if Defendant was sexually aroused.

Defendant also testified regarding the incident. At the time of the offense, Defendant worked for the Lecompte Police Department as Assistant Chief of Police. Defendant testified that he was bisexual, but that he had never touched a child. Defendant stated he had known the victim for about two years prior to the incident, primarily through the victim’s older brother. He said that he went to the home of the victim’s girlfriend to deliver a cell phone to the victim’s brother, but he was not there, so he stayed to visit with What-ley. Defendant stated the victim came into the room and asked “what you two [‘]hoes ta[l]king about?” He said that they were all laughing and joking. At some point, Whatley asked him to show some pubic hair, and they continued to laugh and joke. Defendant testified that the bedroom door was open at the time of the remark. He said that the victim walked in and out of the room a few times and then asked “what would we do if he, if he showed us.” Then, after Defendant made the comment, the victim left again. Defendant stated he had no intention of arousing the victim, or himself, that they were just making “trash talk.” Defendant stated that he was thirty-four at the time of trial.

There must be specific intent to commit a lewd and lascivious act upon the person of, or in the presence of the victim, and an act in furtherance thereof. In Gaspard, the defendant was charged with indecent behavior with a juvenile for showing pornographic movies to his eleven-year-old son and giving him magazines that showed nude women. He told his son that the material “would make his penis hard.” Gaspard, 841 So.2d at 1021. The jury convicted the defendant of the lesser |4and included offense of attempted indecent behavior with a juvenile. This court reversed the conviction stating that there was nothing to indicate that the defendant actually desired sexual activity with the victim. There was no nudity, or touching of either the defendant or the son. There was no act in furtherance thereof.

In State v. Peloquin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d 393, writ denied, 04-3170 (La.4/8/05), 898 So.2d 1280, this court discussed the elements necessary to find attempted indecent behavior with juveniles. In Peloquin, the defendant was charged with attempted sexual battery. However, the issue was whether the trial court erred when it allowed testimony alleging attempted indecent behavior with a juvenile pursuant to La.Code Evid. arts. 403 and 412.2. Two girls testified that the defendant had approached them and asked if they wanted to see his penis. Both girls answered “no” and walked away. This court stated:

In Gaspard, we reviewed State v. Louviere, 602 So.2d 1042 (La.App. 4 Cir.1992), 'writ denied, 610 So.2d 796 (La.1993), where the appellate court reversed the defendant’s conviction for attempted indecent behavior with a juvenile. In Louviere, our colleagues noted that it would be difficult for a rational trier of fact to conclude that testimony concerning a “bad kiss” proved the occurrence of a lewd and lascivious act. Additionally, there was no indication that any other act was planned. The fourth circuit concluded that without genital contact or any other obscene or indecent act or repeated occurrence, the kiss fell short of the statutory requirements of the crime and reversed the defendant’s conviction. After reviewing Louviere, we found, in Gaspard, that the act at issue was not one contemplated by La. R.S. 14:81. We concluded that assuming there was an act, there was no evidence the defendant did anything upon the person of his son and he did not participate in any lewd acts in the presence of his son. Accordingly, we reversed the defendant’s conviction.
The acts of Defendant involving B.P. did not constitute an attempted indecent behavior with a juvenile. B.P. did not testify how old she was when Defendant posed this question to her and the State asserted, in argument to the court, that B.P. was seventeen years old. Accordingly, La. R.S. 14:81 would not be applicable to her. The statute 15would, however, be applicable to K.P. inasmuch as the State alleged she was fourteen at the time of the incident. Defendant asked K.P. if she wanted to see his penis, she replied no, and walked away. There was no testimony that Defendant did an act in furtherance of revealing his penis to K.P. The question was preparatory and not an overt act similar to that in [State v.] Baxley, [93-2159 (La.2/28/94), 633 So.2d 142]. Therefore, the evidence did not prove Defendant’s acts constituted an attempted indecent behavior with a juvenile.

Id. at 396.

In State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, wherein the defendant was found to be guilty of an attempted sexual offense, the defendant had walked into his minor sons’ bedroom after they had gone to bed. One son, the victim, got out of his bed and got into his brother’s bed because he did not want to be near his father. The defendant lay down on the victim’s bed and told him to come over to the bed. When he did so, the defendant told him to sit on his chest so he could suck his son’s penis. The boy began crying and the defendant left the room. Even though the boys told their mother about the incident, it was not until a few years later, following a similar incident, that Defendant was arrested and charged with attempted aggravated crimes against nature. In Smith, the supreme court discussed what constituted attempt and explained:

In determining whether the action of a defendant is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. State v. Williams, 490 So.2d 255, 261 (La. 1986). The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted. Id. It is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt. State v. Pappas, 446 So.2d 523, 524 (La.App. 4th Cir.1984).
[T]he evidence in the present case indicates that Smith attempted to commit an act of oral sex with his son Chad. |fiBoth Chad and his older brother Jody testified that after they had gone to bed for the night, defendant entered their bedroom and lay upon Chad’s bed. Jody and Chad testified that defendant then told Chad to come over to the bed and to sit on his chest so that defendant could suck Chad’s penis. At trial, defendant denied entering the boys’ room that night and asking Chad for oral sex. However, defendant testified that when he was confronted by his wife and her parents with allegations that he had attempted to molest Chad, he said, “[I]f I did that, I need psychiatric help.” Defendant voluntarily sought psychiatric treatment at a local hospital that night and remained under hospital care for one week following the incident.
.... Smith did several acts in his attempt to engage in oral sex with his son. He entered his sons’ room. He lay on Chad’s bed, and he asked Chad to engage in oral sex with him. The nature of the act requested by defendant required compliance by his son, not action by defendant. Furthermore, in Baxley, the illegal solicitation took place on a public street between two adult strangers. An adult on a public street can reject unwanted sexual suggestions from strangers by ignoring the remarks and walking away. In the present case, the encounter occurred between father and son in the child’s bedroom where the child was subject to the authority of his father and not free to leave.
Clearly, Smith had specific intent to commit a crime against nature with his son that night. He entered his sons’ room with the specific intent of engaging in oral sex and for no other reason. He lay down on Chad’s bed for that purpose, and he left the room after his son refused to submit to his demand. The fact that his intended victim did not comply with his demand does not negate the fact that the defendant attempted to commit a crime against nature with his son and took distinct steps toward accomplishing his object. Defendant’s acts of entering the room, lying on the bed and requesting his son to sit on his chest tended directly toward the commission of an aggravated crime against nature and were more than mere preparation.

Id. at 444-45.

In the current case, Defendant was talking to a friend in the friend’s bedroom. He was already in the house when the victim came to visit his girlfriend. The victim walked into the bedroom, according to his own testimony, to ask for a ride to the store. There was testimony the door was open and remained open throughout |7the incident, and there were other people in the house at the time. In our view, there was nothing to establish that Defendant had the specific intent to engage in oral sex with the victim. Nothing indicated Defendant took distinct steps toward accomplishing the objective of engaging in sexual activity with the victim. There was testimony the victim was in and out of the room a few times. There was no testimony there was any sexual display, or touching, or any occurrence which would have been an act in furtherance thereof.

Furthermore, the State failed to prove a “lewd and lascivious” act upon the victim. In Robinson, 975 So.2d at 857, the second circuit discussed the definition of “lewd” and ‘lascivious” as follows:

The word “lewd” means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner and is identified with obscenity and measured by community norms for morality. The word “lascivious” means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations. State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950); State v. Bugbee, [34,524 (La.App. 2 Cir. 2/28/01), 781 So.2d 748] supra. Finding that an act is lewd or lascivious depends upon the time, the place and all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Bugbee, supra; State v. Sturdivant, 27,-680 (La.App. 2d Cir.2/28/96), 669 So.2d 654.

Robinson found that the circumstances surrounding the defendant’s actions established the lewd and lascivious nature of his act. Robinson entered a store and grabbed the buttocks of a young girl and then attempted to rub up under her shirt. He said to her, “Hey, baby.” After the girl fled, he approached another woman and grabbed her bottom also. The defendant argued that his act of grabbing the minor on the buttocks was not a lewd or lascivious act as proscribed by La. R.S. 14:81. The second circuit found otherwise, stating:

lsIn this case, the defendant grabbed the stranger’s buttocks for a few moments before the child was able to react and pull away. The defendant “tried to go up [the victim’s] shirt,” but the victim ran away. He engaged in similar groping behavior with another victim. During the physical contact, the defendant said “Hey, baby” to the victim. Robinson later admitted that he acted because he believed the women to be attractive females and he could not help himself. The term “hey bab[e]” and Robinson’s statement that he was not able to help himself sufficiently disclose his sexual intentions toward the victim. When viewed in context with the acts which accompanied Robinson’s words, including the groping of the child’s buttocks and an attempt to reach under her shirt, his behavior was indecent, violated community norms for morality and was indicative of Robinson’s lustful disposition toward the child. Thus, when viewed in the light most favorable to the state, a rational fact finder could have concluded that forty-year-old Robinson was guilty of indecent and lewd acts upon this fourteen-year-old with the intent of arousing or gratifying his sexual desires.

Id. at 857-58.

In State v. Rideaux, 05-446, pp. 12-14 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 496-97, while discussing the terms “lewd” and “lascivious” this court discussed a case wherein an elderly defendant french kissed two nine-year-old girls:

In State v. Louviere, 602 So.2d 1042, 1044 (La.App. 4 Cir.1992), writ denied, 610 So.2d 796 (La.1993) (citations omitted), wherein the defendant was convicted of two counts of indecent behavior with a juvenile, the fourth circuit stated:
To determine whether the trier of fact rationally concluded that this act was “lewd or lascivious,” or an act tending directly toward a lewd or lascivious act, we must first consider how these terms are defined. According to a recent decision of this court,
[a] lewd or lascivious act is one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner.
|9In that case, two nine-year-old girls testified that the seventy-two-year-old defendant asked them to kiss him to see if his breath smelled like chicken and that he attempted to put his tongue in their mouths when they did so. There were no other touches or suggestions of a sexual nature. Our colleagues on the fourth circuit held that without more, although disgusting, there was no evidence that he committed a lewd and lascivious act with the intent to arouse or gratify sexual desires.
The court cited State v. Saibold, 213 La. 415, 34 So.2d 909 (1948), in stating:
[T]he Louisiana Supreme Court, in concluding that the meaning of the terms was sufficiently clear when used together, stated that lewd or lascivious behavior “connotes actions or gestures of the lustful and lecherous nature.” Furthermore, “to settle any possible doubt,” that court directed attention to the Reporter’s Comment to § 14:81, which specifies that the purpose of this section prohibiting indecent behavior with a juvenile is to prohibit behavior that falls short of sexual intercourse carried on with young children as well as indecent sexual displays in their presence.
Louviere, 602 So.2d at 1044.
In State v. Gaspard,, 02-1040, pp. 5-6 (LaApp. 3 Cir. 3/5/03), 841 So.2d 1021, 1025, wherein the defendant was convicted of indecent behavior with a juvenile, we quoted Louviere, 602 So.2d at 1044-45, as follows:
In addition, a review of reported cases of prosecutions under § 14:81 is illustrative of the type of conduct intended to be proscribed. Indecent behavior with a juvenile in which kissing has occurred has uniformly involved more. In State v. Boutte, 384 So.2d 773 (La.1980), the defendant was alleged to have stuck his tongue into the mouth of a four (4) year old neighbor. In addition, however, he removed the child’s clothing, laid on top of her, and rubbed her genitals. While the defendant in State v. Jacob, 461 So.2d 633 (LaApp. 1st Cir.1984), did repeatedly kiss a thirteen (13) year old boy, he also pulled the boy on top of him in bed and fondled him Imduring an overnight stay. And, this court found indecent behavior with a juvenile to have occurred when the defendant french kissed two young boys and also indulged in inappropriate body contact, all over a protracted period. State v. Rollins, 581 So.2d 379 (LaApp. 4th Cir.1991). It appears then that a kiss is proscribed behavior under § 14:81 when it is repeated or accompanied by other acts that seem more likely to excite lust and to deprave morals, generally genital contact.
In view of the definition, the stated purpose of the criminal statute, and our review of prior jurisprudence involving the statute, it would be difficult for the rational trier of fact to conclude that the testimony concerning a “bad kiss” proved the occurrence of a lewd and lascivious act. Furthermore, there was no indication that any other action was planned which, together with the kiss, would bring Louviere’s conduct within the ambit of the statutory prohibition. Without genital contact or any other obscene or indecent act or repeated occurrence, these kisses fall short of the statutory and judicial requirements of the crime.

In the current case, the circumstances surrounding the comment Defendant made to the victim did not point to a lewd and lascivious act. There was no testimony that Defendant had had any other interactions with the victim outside the house. The victim testified he had seen Defendant at his girlfriend’s house on other occasions, but there was never any interaction between the two. At the time the remark was made to the victim, Defendant was talking with the girlfriend’s uncle in his room, the door was open, and the girlfriend and her mother were in the house. There was no indecent exposure, or physical contact of any sort. There was nothing which indicated Defendant actively desired sexual contact with the victim. Defendant’s comment was short of the statutory requirements of the offense. Taken in the light most favorable to the State, the evidence was insufficient to sustain the verdict beyond a reasonable doubt.

| ^CONCLUSION

For all of the above reasons, there is merit to Defendant’s assignment of error. We, therefore, reverse Defendant’s conviction, order a judgment of acquittal be entered, and vacate the sentence.

CONVICTION REVERSED; JUDGMENT OF ACQUITTAL ENTERED; SENTENCE VACATED.

      . The victim’s initials are used to protect his identity as required by La. R.S. 46:1844(W).