NOT DESIGNATED FOR PUBLICATION

McDONALD, J.

The defendant, Travis Cutrer, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for post verdict judgment of acquittal, which was denied. The defendant was sentenced to life imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating four assignments of error. We affirm the conviction and sentence.

FACTS

Through her marriage to Kevin Logan, Lori Logan became the stepmother of Stephanie, who was the mother of E.V. E.V. was born in July, 2002. E.V.'s paternal grandmother, Teresa, is the defendant's mother. The defendant, who was born August 23, 1990, is E.V.'s uncle. After Teresa divorced the defendant's father, the defendant lived with his father from the age of two to about the age of seventeen years old. During this time, the defendant would periodically go live with his mother. Stephanie lived with Teresa in a trailer in Pearl River, along with E.V. and her brother and sister.

Lori testified at trial that the sheriff's department visited Stephanie's home and found the condition Stephanie and her family were living in was "deplorable" and that it was unsafe for the children to be there. Through a joint consent judgment, Lori and Kevin took custody of E.V., the victim, during the week in Slidell and Stephanie was allowed to see E.V. on the weekends.

On one occasion when E.V. was five years old, she was spending the night at Teresa's (her "Maw Maw") house. The defendant was also at the house. When Stephanie and E.V.'s siblings went to get ice cream, the defendant and E.V. stayed at the house by themselves. During this time, according to E.V., the defendant told her that they were going to play a game and to take off her clothes. E.V. took off her clothes, laid on the couch in the living room, and the defendant had vaginal intercourse with her. The defendant told E.V. not to tell anyone what he had done. Subsequently, E.V. told Lori (her "Nana") the defendant had taught her (E.V.) how to have sex and that he had had sex with her at Maw Maw's house. E.V. was brought to the Children's Advocacy Center (CAC) in Covington, where she provided a recorded statement about the sexual abuse she suffered at the hands of the defendant. Sergeant Brian Beach, with the St. Tammany Parish Sheriff's Office, interviewed the defendant about the incident at Stephanie's house. The defendant denied having had vaginal intercourse with E.V., but stated that E.V. had touched his penis. The defendant also stated that on another occasion, E.V. had "kissed" his penis.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NOS. 1, 2, and 3

In these related assignments of error, the defendant argues, respectively, the trial court erred in denying his motion to quash the indictment because, since he could have been fourteen years old or younger at the time of the offense, the district court did not have subject matter jurisdiction over the case; the State had the burden to prove the offense occurred after his fifteenth birthday, and the State's failure to do so resulted in a due process violation and reversible error; and the evidence was insufficient to convict him of aggravated rape.

We address the sufficiency issue first because resolution of this assignment of error resolves the first and second assignments of error. A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in La. Code Crim. P. article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence. La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statutes 14:42 provides in pertinent part:

Louisiana Revised Statutes 14:41 provides:

Aggravated rape is a general intent crime. State v. McDaniel, 515 So.2d 572, 575 (La. App. 1st Cir. 1987), writ denied, 533 So.2d 10 (La. 1988). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). The trier of fact is to determine the requisite intent in a criminal case. State v. Crawford, 619 So.2d 828, 831 (La. App. 1st Cir.), writ denied, 625 So.2d 1032 (La. 1993).

The defendant argues in his brief that the admissions he made suggest that at most he was guilty of indecent behavior with a juvenile. According to the defendant, the testimony of E.V., along with no physical evidence that intercourse had occurred, dictates that no reasonable trier of fact could have found him guilty of aggravated rape.

E.V. testified at trial that when she was five years old, the defendant had vaginal intercourse with her. Similarly, in her CAC interview, played for the jury, E.V. stated she was five years old and spending the night at her Maw Maw's house when the defendant had sex with her. She also indicated with male and female body diagrams that the defendant had placed his penis inside of her body. She stated that afterward, her body hurt and she was sore. The defendant was almost twelve years older than E.V. Thus, he was sixteen or seventeen years old when he raped the five-year-old E.V.

In his taped statement played for the jury, the defendant denied having vaginal sex with E.V. However, he did tell Sergeant Beach that E.V. touched his penis. The defendant stated that on another occasion, he was masturbating and E.V. tried to kiss his penis, but did not. The defendant further stated that after the aforementioned incident, E.V. did kiss his penis.

The foregoing testimonial evidence established the defendant committed aggravated rape of E.V. through vaginal intercourse, or by having E.V. perform oral sexual intercourse on him, or both. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

The jury's verdict reflected the reasonable conclusion that, based on the trial testimony of E.V., Lori Logan, the defendant's recorded statement, and the CAC interview of E.V., the defendant raped E.V., who was five years old at the time. Despite the defendant's claim of a lack of physical evidence, it is not necessary that there be physical evidence to prove the defendant committed aggravated rape. The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). The testimonial evidence was sufficient to establish the elements of aggravated rape, including the element of penetration. Louisiana Revised Statutes 14:41(B) provides that "[e]mission is not necessary" and that "any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." See State v. Rives, 407 So.2d 1195, 1197 (La. 1981).

After a thorough review of the record, we find the evidence supports the jury's unanimous verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the aggravated rape of E.V. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

In his related first and second assignments of error, the defendant argues the trial court erred in not granting his motion to quash the indictment because the State charged him as an adult instead of a minor. The defendant asserts the State did not prove he was at least fifteen years old when he committed the aggravated rape. Thus, since he may have been fourteen years old at the time of the aggravated rape, he should have been under the jurisdiction of the juvenile court and a hearing conducted to determine if he would be transferred to the district court for prosecution as an adult. See La. Ch. Code arts. 857, 862.

We note at the outset that the date is not essential to the crime of aggravated rape; therefore, it need not be alleged in the indictment. State v. Glover, 304 So.2d 348, 350 (La. 1974); See La. Code Crim. P. art. 468. The district attorney has entire charge and control of every criminal prosecution in his district, and determines whom, when, and how to prosecute. La. Code Crim. P. art. 61. Even when the penalty under a general criminal provision differs from that established in a special provision, the district attorney has the discretion to proceed under either provision. State v. Walker, 2000-0334 (La. App. 1st Cir. 12/22/00), 775 So.2d 663, 666, writ denied, 2001-0235 (La. 12/7/01), 803 So.2d 23.

A true bill was returned in 2008 alleging the defendant had committed aggravated rape of E.V. on or between August 23, 2005 and May 15, 2008. The defendant's date of birth was listed on the indictment as August 23, 1990. (R. p. 73). Thus, at the outset of this case, the State has always maintained the defendant was at least fifteen years old when he raped E.V. At trial, as discussed in the sufficiency assignment of error, the State proved the defendant was at least fifteen years old when he raped E.V. E.V. testified the defendant had sex with her when she was five years old. Her date of birth was July 20, 2002. Therefore, in 2007 (or even 2008), when the defendant was sixteen or seventeen years old, he raped E.V.

When a child is fifteen years of age or older at the time of the commission of aggravated rape, he is subject to the exclusive jurisdiction of the juvenile court until an indictment charging the offense is returned. See La. Ch. Code art. 305(A)(1)(a). Accordingly, when the seventeen-year-old defendant was indicted for aggravated rape under a true bill that charged he was at least fifteen years old when he raped a child, he was automatically excluded from the jurisdiction of the juvenile courts and became subject to original criminal court jurisdiction. See State v. Taylor, 97-2048 (La. App. 1st Cir. 6/29/98), 716 So.2d 178, 181, writ denied, 98-2792 (La. 2/26/99), 738 So.2d 1066; cf. State v. Jackson, 04-306 (La. App. 5th Cir. 8/31/04), 882 So.2d 613, 616-18.

Accordingly, the trial court did not err in denying the motion to quash the indictment. These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant argues that under Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), his sentence violates the Eighth Amendment to the United States Constitution. Specifically, the defendant contends that the trial court, pursuant to Miller, failed to conduct a hearing to determine whether the defendant's life sentence would be with or without parole.

The defendant's claim is baseless. Under Miller, ___ U.S. ___, 132 S.Ct. at 2475, for homicide-related offenses, a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. The instant offense of aggravated rape is a nonhomicide offense and, as such, the controlling case is Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Moreover, the trial court in this matter sentenced the defendant to life imprisonment at hard labor without benefit of probation or suspension of sentence, and specifically noted that pursuant to the recent Supreme Court's ruling, the defendant was not being denied parole eligibility.

In Graham, 560 U.S. at ___, 130 S.Ct. at 2034, the Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. Louisiana Revised Statutes 15:574.4(B)(1) provides in pertinent part that "no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years." Louisiana Revised Statutes 15:574.4(A)(2) provides in pertinent part:

In State v. Shaffer, 2011-1756 (La. 11/23/11), 77 So.3d 939, 942 (per curiam), our supreme court found that Graham required the relators, and all other persons similarly situated, to have a meaningful opportunity to secure release as a regular part of the rehabilitative process. Accordingly, the Shaffer Court, 77 So.3d at 942, held:

Thus, the Shaffer Court, along with its two companion cases, specifically tailored its decision to comply with Graham. See State v. Dyer, 2011-1758 (La. 11/23/11), 77 So.3d 928 (per curiam); State v. Leason, 2011-1757 (La. 11/23/11), 77 So.3d 933 (per curiam). Under Shaffer and Graham, the appropriate remedy for a minor sentenced under a provision providing for life imprisonment without parole for a non-homicide crime is to let stand the life sentence, but delete the restriction on parole eligibility. We note as well the supreme court directed the Department of Corrections to revise Shaffer's prison master according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. Thus, in accordance with Shaffer, the Department of Corrections is directed to revise the defendant's prison master according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.1 See Shaffer, 77 So.3d at 942-43.

Accordingly, the trial court properly sentenced the defendant under Graham in not precluding eligibility for parole. The case is remanded to the trial court with instructions for addressing the defendant's prison master regarding his sentence for aggravated rape.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED. REMANDED WITH INSTRUCTIONS.