author: WALTER J. ROTHSCHILD, Judge. | EDWARDS, J.,

text:
    Virginia McCRAY v. Geno Wesley JENKINS, Maurice Jenkins and Allstate Insurance Company.
    No. 03-CA-539.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      John F. Greene, New Orleans, LA, for Virgina McCray, Plaintiff-Appellee.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, LA, for Geno Wesley Jenkins, Maurice Jenkins and Allstate Insurance Company, Defendanb-Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

This case arises from a motor vehicle accident that occurred on September 16, 2000, on Interstate 10 in Jefferson Parish. Geno Jenkins was operating a vehicle owned by Maurice Jenkins, and Stacy McCray was operating a vehicle owned by his wife, Virginia McCray, when the Jenkins vehicle struck the McCray vehicle from behind. Virginia McCray was riding as a guest passenger in her vehicle at the time of the accident. The parties stipulated that Geno Jenkins was solely at fault in the accident.

At the time of the accident, Geno Jenkins was insured by a policy of motor vehicle liability insurance issued by Allstate Insurance Company. Stacy McCray did not have a valid driver’s license or motor vehicle liability insurance at the time of the accident. Virginia McCray had a policy of motor vehicle liability insurance with Young American Insurance Company, but this policy contained a named driver exclusion which specifically excluded insurance coverage under the policy for use or operation of the vehicle by Stacy McCray.

On May 31, 2001, Virginia McCray filed suit against Geno Jenkins, Maurice Jenkins, and Allstate Insurance Company seeking to recover for property damage hand injuries she sustained in the accident. The defendants answered the petition asserting that the plaintiffs were not entitled to $10,000.00 credits for bodily injury and property damage claims, pursuant to LSA-R.S. 32:866, commonly referred to as the “no pay, no play” statute, because the McCray vehicle was not insured at the time of the accident.

The matter came to trial on December 3, 2002. In lieu of live testimony, the parties submitted a joint stipulation of facts and a number of exhibits to the court. On December 23, 2002, the trial court rendered a judgment in favor of the plaintiff for $14,890.65, plus interest and costs, finding that the “no pay, no play” provision in LSA-R.S. 32:866 did not apply in this case. It is from this judgment that Allstate appeals.

DISCUSSION

On appeal, Allstate argues that the trial court erred in failing to apply LSA-R.S. 32:866 to this case and in failing to determine that Virginia McCray did not maintain compulsory motor vehicle liability insurance on her vehicle at the time of the accident. We agree.

LSA-R.S. S2:866(A)(1) provides:

There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

In A.K. Durnin Chrysler Plymouth, Inc. v. Jones, 01-810 (La.App. 1 Cir. 5/10/02), 818 So.2d 867, the First Circuit addressed the applicability of LSA-R.S. 32:866(A)(1) to a similar factual situation. In Durnin, a vehicle owned by Darrell King and operated by Trina Vinsang struck a vehicle owned by Katherine Jones and operated by her husband, James Jones. Katherine Jones’ liability insurance policy specifically excluded coverage for James Jones. The First Circuit held that |4the “no pay, no play” provision in LSA-R.S. 32:866 did not apply in that situation, finding that the exclusion of her husband, James Jones, from her liability insurance policy did not change the fact that Katherine Jones obtained a liability policy and complied with the compulsory motor vehicle liability security law. Id. at 872.

In Lantier v. State Farm Mut. Auto. Ins. Co., 02-301 (La.App. 3 Cir. 10/2/02), 827 So.2d 597, the Third Circuit addressed this issué as well, but reached a different result than the First Circuit., In Lantier, Joey Lantier was operating a vehicle owned by his sister, Jody Lantier, when he was rear-ended by a vehicle driven by Darlyne Allain. At the time of the accident, Joey Lantier was specifically listed as .an excluded driver on Jody Lantier’s liability insurance policy. The Third Circuit declined to follow the First Circuit’s decision in Durnin and found that -LSA-R.S. 32:866(A)(1) applied to the facts of the case. The Court stated, “we are not bound by a decision of the first circuit and cannot agree with an interpretation of the statute that allows a party to recover their damages when they have excluded a person from coverage on their policy and then allowed that person to operate the vehicle.” Id. at 598.

Virginia McCray asserts that the trial court was correct in following the holding of Durnin, while Allstate argues that the holding in Lantier should apply. We agree with the holding in Lantier.

LSA-R.S. 32:861 requires motor vehicles registered in this state to be covered by a liability insurance policy, a liability bond, or a certificate of self-insurance. Williams v. U.S. Agencies Casualty Ins. Co., 00-1693 (La.2/21/01), 779 So.2d 729, 731. LSA-R.S. 32:900(L) was enacted in order to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by an excluded driver.. Id. Although LSA-R.S. 32:900(L) permits an insurer and insured to specifically exclude the named insured’s spouse or other household member from coverage |sunder a policy, this statute does not permit the owner of a vehicle to allow a person, who has been specifically excluded from liability coverage, to operate the vehicle.

The purpose of LSA-R.S. 32:866 is to discourage the operation of uninsured vehicles. Gibbs v. State Farm Mutual Auto. Ins. Co., 99-1242 (La.App. 4 Cir. 10/13/99), 746 So.2d 685, 686, writ denied, 99-3234 (La.1/14/00), 753 So.2d 220. LSA-R.S. 32:866 has been commonly referred to as the “no pay, no play” provision because “if a motorist fails to pay for liability coverage to protect others, he cannot ‘play’ in the legal system, at least to the collection of his first $10,000 [in] damages.” Progressive Security Ins. Co. v. Foster, et al., 97-2985 (La.4/23/98), 711 So.2d 675, 679. In the present case, Virginia McCray specifically excluded her husband, Stacy McCray, from coverage under her policy. Therefore, she did not pay for liability coverage to protect others when Mr. McCray was driving. However, on September 16, 2000, she allowed Mr. McCray to drive her vehicle, knowing that the vehicle was not covered by her liability insurance policy.

We find that LSA-R.S. 32:866(A)(1) applies to this situation, because Ms. McCray did not have liability coverage for her vehicle when Mr. McCray drove it with her permission. Applying this statute to the facts of this case, we find that Ms. McCray is barred from recovering the first $10,000.00 of her bodily injury claim and the first $10,000 of her property damage claim. Accordingly, we find that Ms. McCray is not entitled to the $2,012.55 she sustained in property damage and towing expenses. We further find that the total award of $12,150.10 for general damages and medical expenses shall be reduced by $10,000.00 for a total of $2,150.10. Ms. McCray is entitled to retain her award of $728.00 for lost wages.

| ¿DECREE

For the reasons set forth above, we reverse the trial court’s ruling that LSA-R.S. 32:866(A)(1) is not applicable to this case, because this provision does in fact apply. We find that Ms. McCray is not entitled to the first $10,000.00 of her bodily injury claim and property damage claim. Therefore, we hereby amend the judgment, and reduce her award from $14,890.65 to $2,878.10.

REVERSED IN PART; AMENDED IN PART AND AFFIRMED AS AMENDED.

EDWARDS, J., Dissents with Reasons.

| EDWARDS, J.,

Dissents.

Insofar as the majority opinion agrees with the holding in Lantier v. State Farm, supra, both ignore, in my opinion, the plain wording of R.S. 32:866. As the court in A.K. Durnin Chrysler-Plymouth Inc. v. Jones, supra pointed out, the starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit.

In my opinion, it is clear that the statute applies to exclude recovery for the first ten thousand dollars of damages for the uninsured owner or operator who attempts to make a claim. Virginia McCray was insured. In the present case, the insured is the injured party seeking to be reimbursed for her injuries. The fact that Virginia McCray specifically excluded Stacy, who later became her spouse, from her policy does not change the fact that she obtained a liability policy in conformity with La. R.S. 32:900, nor does it alter her compliance with the compulsory motor vehicle liability security law.

To follow the interpretation of the majority is to penalize any innocent yet injured passenger of an uninsured driver, under any circumstances, regardless of whether the uninsured motorist is at fault in an accident. This result does not serve any public purpose of which I am aware.

For the above reasons, I respectfully dissent.

        . In its brief, Allstate states that the property damage award rendered by the trial court was $2,740.55, apparently adding the property damage and towing expenses award to the lost wages award. However, the trial court separately awarded $2,012.55 in property damage and $728.00 in lost wages. Lost wages are not part of an award for property damage. We find that Ms. McCray is entitled to retain her award for lost wages, because LSA-R.S. 32:866(A)(1) does not require reduction of an award for lost wages, and Allstate has not assigned the trial court’s award of lost wages as error.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ariax SMITH.
    No. 03-KA-832.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Appellant, Ariax Smith.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

On May 31, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Ariax Smith, with distribution of counterfeit cocaine, a violation of La. R.S. 40:967(A)(2). Defendant was arraigned on June 20, 2002, and entered a plea of not guilty. On September 11, 2002, the State amended the bill of information, changing the charge to possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A)(1).

Trial commenced on November 6, 2002. On November 7, 2002, the twelve-member jury returned a verdict of guilty as charged. On November 14, 2002, the trial court heard and denied defendant’s motions for new trial and post-verdict judgment of acquittal. On November 20, 2002, the court sentenced defendant to seven years at hard labor, with the first two to be served without benefit of parole, probation or suspension of sentence. Defendant made an oral motion for appeal.

FACTS

In early May of 2002, Agent Ricky Jackson, a New Orleans Police officer assigned to work undercover with a local drug interdiction task force headed by the Drug Enforcement Administration (“DEA”), received information from a confidential informant (“Cl”) that a man from Georgia would be arriving in the parea in the next few days with four kilograms of cocaine to sell. The task force began an operation to interdict the sale and arrest the man.

During a telephone call from the Georgia man to the Cl,- Agent Jackson and the Cl arranged to meet the man in the food court of Lakeside Mall in Metairie on the evening of May 6, 2002 to purportedly purchase the narcotics. During the telephone call, the man told Jackson how to recognize him, including the fact that he would be carrying two shopping bags from the store, Footlocker.

That night, Agent Jackson, who was wearing a hidden transmitter and recording device called a Kell, and the Cl went to Lakeside Mall. Five other task force agents were in or around the mall conducting surveillance of the transaction.

Agent Jackson saw a man fitting the suspect’s description and carrying two large shopping bags from Footlocker come into the mall. The man then entered the game arcade near the food court at Lakeside Mall. After Agent Jackson and the Cl approached the suspect in the game arcade, the suspect suggested that they relocate to a men’s restroom in the boy’s department of the J.C. Penney department store in the mall.

The three men walked to the J.C. Penney’s men’s room. On the way, the suspect quickly frisked Agent Jackson to assure himself that Jackson was not a police officer. Upon entering the bathroom, the suspect removed a Reebok shoebox from one of the Footlocker bags, placed it on a sink, and opened it. In the shoebox, there were two packages of white powder, wrapped the way that kilograms of cocaine are generally packaged. The second bag contained a Timberland shoebox with two more packages of white powder. Agent Jackson asked, “Is it good?” Defendant responded, “Yes.”

Agent Jackson told the suspect that the money was in his car. After walking with Agent Jackson to the J.C. Penney’s exit, the suspect decided that he did not [4wish to exit the mall with Jackson. He agreed to meet Agent Jackson at the nearby Red Lobster Restaurant.

Immediately after Agent Jackson exited the mall, he notified the surveillance team that the suspect was leaving the building with the narcotics. Task Force Agents Sewell, Coffey, and Whitehurst stopped the suspect as he exited J.C. Penney and placed him under arrest. The suspect and defendant-herein, Ariax Smith, was carrying two Footlocker bags containing shoe-boxes with kilogram-sized packages of white powder. Defendant immediately said, in reference to the white powder, “It’s not real.” Agent Sewell field-tested samples from two of the packages seized from defendant. Both samples tested negative for cocaine.

Several months later, however, Charles Krone, an expert in the field of drug analysis and the identification of controlled dangerous substances, ran four tests on random samples of the four bricks of white powder seized from defendant on May 6, 2002. Two bricks tested negative for cocaine. The third brick was positive for cocaine in one area. The fourth brick was positive for cocaine in two areas. Krone found that the bricks also contained caffeine and tetracaine, which are “cutting” agents that dealers commonly use to increase the volume of their product.

In his first assignment of error, the defendant contends that the trial court erred in failing to grant the defense’s motion for a new trial because there was insufficient evidence to support the specific intent of Mr. Smith to sell cocaine instead of bunk'. Defendant complains that the evidence at trial was not' sufficient to support his conviction, as the State failed to prove he had the specific intent to sell cocaine rather than counterfeit, or “bunk” cocaine.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find |Rthe essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Pierce, 02-1267 (La.App. 5 Cir. 4/8/03), 846 So.2d 55, 59.

Under La.C.Cr.P. art. 851, the motion for new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied, regardless of the allegations upon which the motion is grounded. In a motion for new trial, the trial judge can only review the weight of the evidence and, as such, make a factual review as a “thirteenth juror,” instead of following the sufficiency standard enunciated in Jackson v. Virginia, supra. The. ruling on a motion for new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion. State v. Badeaux, 01-618 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 908, writ denied, 01-3403 (La.10/4/02), 826 So.2d 1121.

In this case, defendant was charged with possession with intent to distribute cocaine. The State was required to prove that defendant knowingly and intentionally possessed drugs with the specific intent to distribute them. La. R.S. 40:967(A)(1).

Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. Specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126, 1128 (La.1982).

Defendant submits that the State proved, at most, that he had specific intent to distribute counterfeit, .cocaine. He points out that, when he .was placed under 1 fiarrest, he told officers the substance was not “real.” He also stresses that several portions of the bricks tested negative for cocaine.

Agent Jackson testified that he spoke with defendant and made a deal to buy four kilograms of cocaine from him. Agent Jackson also testified that, while they were in the men’s room at J.C. Penney, he asked the defendant whether the product was “good,” and defendant responded that it was.

Charles Krone testified that, in the two packages that contained cocaine, he found caffeine and tetracaine, which are common adulterating agents that are added to cocaine to increase the volume of material. Krone also testified that the two bricks that tested negative for cocaine were wrapped in transparent plastic wrap and brown tape, whereas the two bricks that produced positive results for cocaine were wrapped in rubber, transparent plastic, and tape. Krone explained that the rubber, a latex material, emits an odor that the packagers use to prevent drug-sniffing dogs from detecting the scent of cocaine.

At the hearing on defendant’s motions for new trial and post-verdict judgment of acquittal, the trial judge commented, in part:

There was evidence in testimony at the trial that the substance was, in fact, cocaine. Further, there was testimony from the undercover agent that Mr. Smith made some comments to him while in the bathroom of the J.C. Pen-neysfsic], that this was good stuff. There is a basis for this jury to return the verdict that it did return. The Court finds no error or prejudice in their verdict with regard to the trial of this matter.

We find that no error in the trial court’s denial of defendant’s motion for new trial. Furthermore, after our review of the record, we find that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the State proved the essential elements of possession with intent to distribute cocaine beyond a reasonable doubt.

Finally, we have reviewed the record for errors patent according to La.C.Cr.P. art. 920. We note that the transcript of defendant’s sentencing hearing reflects that the trial judge correctly restricted two years of defendant’s sentence but the minute entry does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Parker, 01-0958, p. 8 (La.App. 5 Cir. 2/13/02), 812 So.2d 86, 91, writ denied, 02-1058 (La.2/21/03), 837 So.2d 624. Therefore, no action is required by this Court.

AFFIRMED.


author: |,SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Walter J. EVANS.
    No. 03-KA-0752.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, Counsel for Defendant-Appellant, Walter J. Evans.
    Walter J. Evans, Angola, LA, pro se Defendant-Appellant.
    Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux (Appellate Counsel), Cameron M. Mary, Walter G. Amstutz (Trial Counsel), Assistant District Attorneys, Gretna, LA, Counsel for Plaintiff-Appellee, the State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   |,SUSAN M. CHEHARDY, Judge.

Walter J. Evans appeals his convictions, by a jury, of two counts of aggravated rape, one count of attempted aggravated rape, and one count of armed robbery. We affirm the convictions, but remand for correction of a patent error.

FACTS

On June 14, 2001, a Jefferson Parish Grand Jury indicted the defendant, Walter Evans, on two charges of violation of La. R.S. 14:42, aggravated rape (Counts One and Two); one charge of violation of La. R.S. 14:27 and La.R.S. 14:42, attempted aggravated rape (Count Three); and one charge of violation of La.R.S. 14:64, armed robbery (Count Four).

The defendant entered a plea of not guilty to all charges. The defendant filed motions to sever the offenses as well as motions to suppress the identifications, the evidence and his statement. The trial court denied all the motions prior tp trial.

On July 11, 2002, a twelve-person jury found the defendant guilty as charged. Subsequently the defendant filed a motion for new trial, which the trial court denied.

|3On August 30, 2002, the trial court sentenced the defendant to imprisonment at hard labor for life on Counts One and Two, for 45 years on Count Three, and for 60 years on Count Four, all to be served concurrently, the sentences on Counts One, Two and Four to be without benefit of probation, parole, or suspension of sentence.

The defendant made an oral motion for appeal at sentencing, followed by a written motion, which the trial judge granted.

On appeal, the defendant has filed a brief by his appointed counsel and also has filed a pro se brief. He raises two assignments of error in each brief:

ASSIGNMENTS OF ERROR (PER APPOINTED COUNSEL)
1. The trial court erred in failing to grant the defense’s motion for a new trial because there was insufficient evidence to support the conviction as to the identity of the perpetrator.
2. The trial court’s [sic] erred in failing to grant the defense motion to sever the counts.
ASSIGNMENTS OF ERROR (PRO SE)
1. The trial court erred in failing to grant the motion to suppress identification based on suggestive, out-of-court identification procedures.
2. The trial court erred in failing to grant the motion to sever the counts.

EVIDENCE

Victim, Counts Three and Four

H.D. testified that on the evening of March 10, 2001 she was going to visit a friend at an apartment complex on Eden-born Avenue in Metairie. As she approached the nearest entrance H.D. saw a man going toward it, so she kept walking and went into the second entrance, further away. When she turned the |4corner by her friend’s door, she met the same man face-to-face, standing right in front of the door. He pulled out a knife, grabbed her and forced her around to the back of the complex, holding the knife to her throat. She told him to stop and put her purse on the ground, thinking he wanted to rob her, but he kept pushing her toward the back. There he ordered her to get on the ground and take off her pants. She did not remove her clothes, but lay face down. He sat on top of her, telling her to be quiet or he would kill her. She said his voice was “very clear,” “very demanding” and he was “well-spoken.”

However, H.D. began screaming and she attempted to call for help on her cellular telephone. They struggled and the man grabbed the phone from her hand. When neighbors came out of the nearby apartments, the man fled, taking H.D.’s telephone with him.

H.D. said she got a good look at the attacker’s face and also noticed he was wearing a white sweatshirt, black jeans, and a black spandex cap. She later worked with a police artist, who produced a facial sketch from her description. On April 12, 2001 H.D. positively identified the defendant as her attacker from a photographic lineup. She also identified the defendant in court during trial. She stated she remembered his eyes, because her attacker had big eyes. She said the defendant has the same eyes.

Victim, Count Two

Shortly after 9:00 p.m. on March 14, 2001, S.P. was on her way to the laundry room at her apartment complex, the Cop-permill Apartments on Edenborn Avenue in Metairie. She saw a man leave the laundry room and she assumed he was a new tenant from an upstairs apartment. She continued to the laundry room |5and started putting clothes in a machine. She felt someone behind her, turned to the right and saw the man she had seen earlier, holding a knife.

The man grabbed S.P. and she screamed for help. He forced her to the ground, face-down, put the knife to her throat and told her he would kill her if she continued to scream. He was squeezing her throat so tight she couldn’t breathe. He then brought her to a patio right outside the laundry room, bent her over a railing, pulled her pants down, and penetrated her with his tip of his penis. S.P. told him, “Please don’t do this. Don’t hurt my baby. I’m pregnant.” She asked him to use a condom to protect her baby. She admitted at trial she was lying and was saying anything she could think of that might change his mind.

He pulled out a condom, but was having trouble opening it, so he penetrated her again without wearing the condom. She pleaded with him to put on a condom and offered to help him with it. She assisted him in putting it on. However, the man lost his erection; he attempted to excite himself again by rubbing against her, but was unsuccessful. He put the knife to S.P.’s throat again and told her, “I’m gonna be right back. Don’t go anywhere.” She stayed there for a few minutes, then ran to the nearest neighbor’s apartment and called 9-1-1.

On April 16, 2001, S.P. positively identified the defendant as her attacker from a photographic lineup. She also identified the defendant in court at trial. She said she saw him clearly in the laundry room, which had bright fluorescent lighting, and remembered his “distinctive eyes” and “slight little marks” under his eyes. She also recalled that he sounded “very educated,” with “every word pronounced,” and that he was wearing a blue-jean type long-sleeved shirt, dark black jeans, a navy blue bandanna with white paisley in “a cowboy sort of tie” over the lower part of his face up over his nostrils, and had a bandanna on his head.

|fiOn cross-examination S.P. admitted that at the time of the incident she thought the attacker was young, perhaps 17, which is how she described him to police. She also admitted that in the police report she described the condom as dark in color, but at trial she said it was “whitish” in color.

Victim, Count One

On April 12, 2001 S.B. left her house at approximately 5:15 a.m. for her usual exercise routine of power-walking with hand-weights in her neighborhood on 41st Street in Metairie. It was still dark, but in the street light S.B. saw a man walking past her house as she was coming down her driveway. She turned onto Madison Street and right before she got to West Metairie Avenue she heard running footsteps behind her.

She thought at first it was another morning exerciser, but a man attacked her, wrapping his arms around her from behind and forcing her to the edge of the street. He threw her to the ground on her back and pushed her face to one side. She attempted to scream, but he told her, “Shut up or I’ll kill you, I’ll take these weights and bash your skull in.”

The man pulled her shorts down around her knees and she could feel his flaccid penis against her thigh. She tried again to scream and again he told her he would bash her skull in. She saw a glint of chrome in his hand- The man manipulated himself but could not get an erection. S.B. heard a car coming along West Metairie, then the man grabbed her by the hair and shoved her up an alley between two houses, where he bent her forward over some garbage cans.

The man shifted her underwear to the side, stroking her genitals from front to back while manipulating himself. After attaining an erection, he shoved S.B. to the ground and began to force his penis into her. S.B. told him he was hurting her |7and he told her again to shut up or he would kill her. Momentarily he got up, told her to put on her clothes, and fled north toward West Napoleon.

S.B. went to a neighbor’s home and called her husband. Her husband came to pick her up and she called the police after she returned to her home.

The defendant was detained by the police as he was walking in the neighborhood. Officers brought S.B. to view him from a police car, but she told the police he was not the man who had attacked her, pointing out that the suspect was wearing different clothing than her attacker. Her attacker wore a white shirt, with black or vfery dark- blue pants' that were loose and baggy. When she saw the defendant in the police car, he was wearing .red athletic shorts and a white tank-top shirt.

At trial S.B. said that the windshield of the police car was smeared with bugs and that there were floodlights shining on the man. According to S.B., she did not think the man in the police car was her attacker because his skin appeared lighter, his face seemed longer, and his hair seemed different.

On the evening of Easter Sunday, however, she recognized her attacker in a photograph shown on television and told her husband, “That’s him, that’s the guy who raped me.!’ Several months later the police showed S.B. a -photo lineup, from which she selected a photograph of the defendant, who also was the man in the photograph she had seep pn TV on Easter. At trial S.B. stated-that the defendant looked the same in the photograph as he did without the floodlights shining on him. She also identified him in court as her attacker.

| ^Police Officers

Deputy Henry Jaume testified he was dispatched at approximately 5:45 a.m. on April 12 to search the area for possible suspects in the rape that had just been reported. Near Turnbull. Street, he encountered the defendant and questioned him. The defendant said his name was Jamal Forbes. The defendant told Jaume that he had been walking his dog and that the dog broke the leásh and got away from him. However, the defendant was not carrying a dog leash. He was wearing red shorts, a white tee shirt, and a baseball cap that said “Alabama.”

As he was stopping the defendant, Deputy Jaume saw another person in the area who “ran off, like a jogger ... going around the corner.” He asked the defendant if they were together and whether he knew the person. The defendant said he did not know him. Jaume asked whether he could describe him and the defendant described the jogger as a “medium-built black male with dark-colored pants and a white T-Shirt.” Deputy Jaume noted that description matched the description of the rapist.

The defendant had no identification on him and gave his address as 2401 Division Street, Apartment F-8. Deputy Jaume said he was suspicious, because Division Street is quite a distance from Turnbull, but Turnbull is approximately one-half block from the scene of the rape. Jaume drove defendant to Division Street to get his ID. On the way to Division Street, however, the defendant admitted that he did not live there, -and directed Deputy Jaume to the apartment complex where he lived, at 4025 West Napoleon Avenue.

Just before they got to the West Napoleon apartment complex, Deputy Jaume stopped at a convenience store to wait for the detectives to meet him. They had a set of keys they had collected at the scene of the rape. After they arrived they went to the defendant’s apartment.

|gThe defendant told Jaume that he did not have any keys and that his way of entry into the apartment was through an unlocked window. However, he advised 'Jaume that the front door was open and they could go in the front door. The detectives, who had arrived with the keys recovered at the scene of the rape, found a key in the set that operated the front door lock, however.

Inside the apartment, the officers found the defendant’s identification indicating that his name was Walter Evans. When Deputy Jaume asked the defendant why he had lied about his name, the defendant told him, “Talk to me and I’ll come clean with everything.” Jaume then walked the defendant out of the apartment and placed him in the rear of his police car, where he advised the defendant of his rights.

The defendant then told Jaume he was in the area of West Metairie when “he saw a black male grab a white woman from behind by her mouth and take her to the ground.” The defendant said that the man saw him, and he got scared and ran off. He told Jaume he was afraid because he thought the police would blame him.

The officers soon discovered that the defendant was not the lessee of the West Napoleon apartment and exited without searching it. Lieutenant Maggie Pernia contacted the defendant’s girlfriend, who was the lessee, and obtained her consent to search the apartment.

Detective Deborah Labit testified she met with Deputy Jaume after he had detained the defendant. The defendant told her his name was Jamal M. Forbes and gave the Division Street address he had given Jaume. He told her he was staying at the Division Street apartment with his brother, Melvin Watkins, whom he said was age 28. He was unable to give her a date of birth for Melvin Watkins, however. The defendant gave his own home address as Tuscaloosa street in Tuscaloosa, Alabama.

|inShe asked him whether he had been over by the 900 block of Madison Street. He told her he had not been in that area, but had been walking a dog near 41st Street and North Turnbull, that the dog was a small dog on a leash that had gotten loose and taken the leash with him. He denied any knowledge of the assault. Detective Labit said that as her interview with the defendant progressed, after she told him what the investigation concerned he became irate, very animated, was not cooperative, and became increasingly hostile. Eventually she terminated the interview.

Detective David Spera testified he sat with the defendant in a marked patrol car while the officers waited for consent to search the apartment. Spera said the defendant initiated a conversation with him. Out of an abundance of caution, Detective Spera advised the defendant of his constitutional rights.

The defendant then told Spera that he had an argument with his girlfriend before dawn that morning and his girlfriend left. The defendant also left and went to the Sav-A-Center on Clearview to purchase cigarettes. Spera said the defendant told him he encountered a high school acquaintance, Melvin Watkins, at the store. On the way to the apartment, Melvin told the defendant that he had a fight with his girlfriend, and needed a place to stay. The defendant agreed that Melvin could stay temporarily.

Spera said the defendant told him that at approximately 5:00 a.m., Melvin said he wanted to go for a walk. The defendant gave Melvin the keys to the apartment and Melvin left. Shortly thereafter, the defendant walked to his girlfriend’s mother’s house, which was nearby, to verify that his girlfriend’s car was there. When he did not see her car, he returned to the apartment. On the way, the defendant saw Melvin, who had been jogging. Melvin told the defendant he did In not need to stay at the apartment and left. Spera said the defendant did not retrieve the apartment keys from Melvin.

After obtaining consent from the defendant’s girlfriend, the police searched the defendant’s apartment that day. Sergeant Darren Monie testified they recovered three bandannas, a pair of blue sweatpants, a pair of black or navy blue sweatpants, black jeans, a black cap, two “Smooth Wave” stocking caps, and a bag of fifteen condoms. Further investigation revealed that thirteen of the fifteen condoms were in the same packaging and bore the same lot number as the condom wrapper that was found at the scene of S.P.’s rape on March 14, 2001.

Detective Richard Broussard testified he took a recorded statement from the defendant at the Investigations Bureau later that morning, after advising defendant of his constitutional rights. In ’the statement, the defendant said he had resided in Salt Lake City for two years before returning to Louisiana in September 2000. He stayed with his mother in Bridge City until November 2000, when he moved to 2401 Division Street with his girlfriend. The defendant moved with his girlfriend to the apartment on West Napoleon on March 30, 2001.

The defendant’s statement to Detective Broussard reiterated the information in his statement to Detective Spera, but the defendant told Detective Broussard that he was walking with Melvin and saw Melvin assault the woman. According to the defendant, he fled toward West Metairie after he saw Melvin attack the woman. Broussard noted that in fleeing toward West Metairie the defendant was actually heading away from where he lived rather than returning to his apartment.

Detective Broussard also testified that although the defendant claimed he had gone to the Clearview Sav-A-Center to buy cigarettes because the convenience |1gstore next to his apartment complex was closed, there were a number of other places closer to his apartment where he could have purchased cigarettes.

Detective Broussard testified that police were unable to obtain fingerprints off the condom wrapper left at the scene of the March 14 rape, nor were there any DNA links to the defendant discovered from any of the victims.

As part of the investigation, the police attempted to find Melvin Watkins with no success. Detective Christopher Fisher testified that they contacted the Jefferson Parish School Board because the defendant said that he and Melvin attended L.W. Higgins High School together. After reviewing “every possible file,” however, the police found no evidence that a Melvin Watkins in the age range provided by the defendant had ever attended school in Jefferson Parish. Detective Fisher said that they found a Ronald Watkins, and showed the defendant a picture of him, but defendant said that was not the person who attacked S.P. The police also investigated a former address where the defendant claimed that Melvin had lived in 1996, but that there was no evidence Watkins had lived there.

The defendant and his girlfriend, Kristina Scott, testified for the defense. Ms. Scott testified that she and the defendant (who goes by his middle name, Jamar, rather than Walter) did not own a dog and that she had never heard of either Jamal Forbes or Melvin Watkins. She also said the defendant did not live in Tuscaloosa, Alabama, in 2001. She had known the defendant for about eight years and they had lived together in Utah while the defendant was going to school there. She also said the defendant had brought condoms from Utah when he returned to the New Orleans area. She stated that the defendant has always had a moustache, and that he never owned a white sweater or a jean shirt. However, she admitted that she said in her statement on April 12, 2001, that the defendant was wearing navy blue or black pants and a white T-shirt when she last saw him.

11sThe defendant’s testimony was consistent with the statement he gave to Detective Broussard. The defendant said he did not recall making any statement to Deputy Jaume about a dog that morning. He said Detective Labit must have misunderstood him when she said that he told her Melvin was his brother. Defendant said he told Detective Labit he was staying with Melvin, “a brother,” terminology which defendant characterized as “Ebonics.”

The defendant denied that he ever raped or robbed anyone. He said the reason he was walking that night was because he had argued with Kristina and walking is his way of dealing with stress. He related his encounter with Melvin Watkins at Sav-A-Center, their subsequent return to his apartment, then their later leaving the apartment to walk again. He said when they observed a white female jogging across their path, Melvin told him, “Check out that white lady,” then took off toward her in a light jog, grabbed her and they went to the ground. Defendant claimed he “just took off and ran” to get as far away from the situation as possible.

The defendant could not explain why he ran in the opposite direction from his apartment, but said he sat behind a school at Airline Highway and Cleary Avenue to catch his breath, then eventually headed back toward his apartment. On the way he was stopped by police twice. The first time the officer let him go; then second time was by Deputy Jaume.

The defendant testified he gave police a false name that day because he was afraid his girlfriend had called the police on him and he did not want to be arrested. He said he did not recall giving any officer an address in Tuscaloosa. He also said he did not tell either the first officer who stopped him or Deputy Jaume about Melvin attacking the woman because he was afraid he would be implicated. The defendant said Melvin had his keys because defendant’s shorts had no pockets and he had asked Melvin to carry the keys in his pockets.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to grant the defense’s motion for a new trial because there was insufficient evidence to support the conviction as to the identity of the perpetrator.

The defendant argues the evidence was insufficient to prove he was the perpetrator in the offenses for which he was convicted. The State contends that it proved the defendant’s guilt beyond a reasonable doubt.

When evaluating the sufficiency of the evidence, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181, p. 4 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

When the key issue in a case is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification in order to meet its burden of proof. State v. Neal, 00-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

|1sThe defendant was convicted of two counts of aggravated rape, one count of attempted aggravated rape, and one count of armed robbery. Armed robbery is defined in La.R.S. 14:64 as follows:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Aggravated rape is defined in La.R.S. 14:42 in pertinent part:

A. Aggravated rape is a rape ... 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:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

An attempt to commit a crime is defined by La.R.S. 14:27 as follows:

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.

Specific intent to commit a crime is an element of an attempted offense.

Specific intent is a state of mind and, as such, need not be proven as a fact but may be inferred from the circumstances and actions of the accused. State v. Graham, 420 So.2d 1126, 1127 (La.1982). The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard. State v. Huizar, 414 So.2d 741, 751 (La.1982).

hfiThe record establishes there is ample evidence other than the victims’ testimony to link the defendant to the crimes:

With regard to Count Two, the aggravated rape of S.P., the condom wrapper found at the scene matched the packaging and the lot numbers of thirteen of the defendant’s condoms. The defendant’s girlfriend testified that the defendant brought the condoms found in the apartment from Utah to Louisiana. According to Don Gonzales, a representative of the company that manufactured these condoms, the condoms left the plant in December of 1999. The condoms were sent to several cities, including Salt Lake City, Utah, but none of the condoms were sent to any state in the Gulf Coast region. Based on this information, a rational juror could have inferred that the condom wrapper found at the scene belonged to the defendant.

Further, Detective Broussard testified that on March 14, 2001 the defendant resided at 2401 Division Street, which was within a block-and-a-half of S.P.’s apartment at 2217 Edenborn Avenue. Detective Broussard illustrated the location of the defendant’s apartment on a map that also pinpointed the scene of the March 10, 2001 attack on H.D. at 3444 Edenborn Avenue.

In addition, the defendant’s apartment on West Napoleon was approximately one mile from where S.B. was raped on April 12, 2001. The defendant was found one-half block from the scene and his keys were found at the scene that morning.

The jury heard the defendant’s trial testimony in which he indicated that Melvin Watkins raped S.B. In finding the defendant guilty, however, the jury obviously rejected this theory.

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant, that hypothesis 117falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Chester, 97-1001, p. 1 (La.12/19/97), 707 So.2d 973.

There are striking similarities in the victims’ descriptions of their attackers: Each victim noticed that her attacker had a distinctive manner of speech: H.D. described him as well-spoken with a “clear” and “demanding” voice; S.P. said the man sounded “educated” and “pronounced ... every word”; S.B. specifically recalled how “articulate” the man sounded. Further, each of the victims was grabbed from behind. Both H.D. and S.P. testified that the attacker put the smooth or blunt side of the knife against their throats and that he forced them to lie face-down on the ground. Both S.P. and S.B. testified that the attacker had difficulty maintaining his erection. S.P. testified that her rapist bent her over a fence; S.B. testified that her rapist bent her over some trash cans.

Although each of the victims positively identified the defendant from a photographic lineup and at trial, the defendant contends that no rational juror could have believed the identification testimony because the identifications were unreliable. However, the jury heard all the victims testify about the identifications. On cross-examination the defense thoroughly explored the circumstances surrounding each victim’s identification of the defendant. After hearing all the testimony, the jury obviously found the State’s witnesses more credible than the defense witnesses.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact finder’s discretion only to the extent necessary to guarantee fundamental due process of law. State v. Howard, 98-0064, p. 14 (La.4/23/99), 751 So.2d 783, 801, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999).

[RWe conclude the State’s evidence at trial was sufficient to exclude every reasonable hypothesis of innocence and that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant committed the offenses for which he was convicted. We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court’s [sic] erred in failing to grant the defense motion to sever the counts.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in failing to grant the motion to sever the counts.

In both his counseled and his pro se Assignment of Error No. 2, the defendant argues the trial court erred in denying his motion to sever the sex offenses for trial.

Defendant was charged with two counts of aggravated rape, one count of attempted aggravated rape and one count of armed robbery. La.C.Cr.P. art. 493 permits the joinder of offenses if the offenses charged “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan,” provided the offenses are triable by the same mode of trial.

The four offenses with which defendant was charged are of the same or similar character and are triable by the same mode of trial, with the punishment for all four offenses necessarily at hard labor. See, La.C.Cr.P. art. 782; La.R.S. 14:27; 14:42; and 14:64. Thus, the offenses were properly joined in the same indictment.

A defendant properly charged in the same indictment with two or more offenses pursuant to La.C.Cr.P. art. 493 may nevertheless move for a severance of 119the offenses under La.C.Cr.P. art. 495.1, which states: “If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.”

In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

State v. Washington, 386 So.2d 1368, 1371 (La.1980).

The defendant has a heavy burden of proof when he alleges prejudicial joinder. Id. A motion to sever under La. C.Cr.P. art. 495.1 is addressed to the sound discretion of the trial court and the ruling should not be disturbed on appeal absent a showing of an abuse of discretion. State v. Celestine, 452 So.2d 676, 680 (La.1984).

The defendant sought severance of all four counts on the grounds that the jury would infer his guilt, the crimes were distinct, and the jury would be confused by the evidence. In opposition, the State asserted that the crimes were similar because the offenses against H.D. occurred 1.56 miles from the defendant’s apartment, the offense against S.P. took place less than 3,000 feet from the defendant’s apartment, and the offense against S.B. was within seven-tenths of a mile of the defendant’s apartment. Further, each of the offenses occurred in the dark and each time the attacker grabbed the victim from behind. After hearing argument from both sides, the trial court denied the motion to sever.

LoAs discussed above, the defendant lived in the vicinity where the offenses occurred. The attacks were similar and occurred between March 10, 2001 and April 12, 2001, a relatively short time period. In all three offenses, the victims were grabbed from behind. In the aggravated rape of S.P. and attempted aggravated rape of H.D., the attacker placed the blunt side of a knife against each victim’s throat.

We conclude the three incidents share enough similarities to make joinder permissible, yet the facts of each offense are not identical and are easily distinguishable from each other. Significantly, the evidence against the defendant on each count was not complex and was presented in an orderly fashion, which allowed the jury to segregate the charges and evidence.

Although the jury instructions were not transcribed, the record contains the written instructions the court read to the jury. Those delineate each offense separately and clearly indicate which offenses correspond to each victim. The record also reflects the defendant made no objection to the jury instructions.' Finally, there is no evidence the jury was hostile toward defendant because of the joinder of the offenses. See, State v. Lee, 99-1404, pp. 9-10 (La.App. 4 Cir. 5/17/00), 764 So.2d 1122, 1128.

Considering the similarity of the offenses, the simplicity of the facts of the offenses, the orderly presentation of evidence, and the positive identification of the defendant as the perpetrator by all three victims, it is unlikely the jury was confused by the joinder or that defendant was prejudiced. There is no evidence that the joinder of the offenses hindered his right to present his defense, in which his primary focus was on establishing that the victims had misidentified him.

The defendant contends the trial of three sex offenses caused the jury to infer his guilt because sex crimes are particularly offensive. However, severance is not [ ^mandated merely because the counts were sex offenses. See Celestine, 452 So.2d at 680. Hence, we find no merit to this assignment.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to grant the motion to suppress identification based on suggestive, out-of-court identification procedures.

In his motion to suppress the defendant argued the photographic lineups presented to the victims were suggestive and resulted in a substantial likelihood of misidentifi-cation.

A defendant who seeks to suppress an identification must prove that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Lowenfield, 495 So.2d 1245, 1253 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986).

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977).

The factors to be considered in assessing reliability were initially set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and approved in Manson v. Brathwaite, supra. They include the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the prior description of the criminal; the level of certainty demonstrated at the confrontation; and the time between the crime and the confrontation. Any corrupting effect of a suggestive identification procedure is to be weighed against these factors. Manson v. Brathwaite, supra.

| aaln determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion to suppress, but may also consider pertinent evidence given at the trial. State v. Burkhalter, 428 So.2d 449, 455 (La.1983).

The defendant contends the identification by S.B. was suggestive because it was based on his photograph shown on television, and because she did not identify the defendant as her attacker shortly after the incident. According to defendant, S.B.’s certainty of the identification was a direct result of the fact that defendant’s photograph was shown on television and in the newspaper, not an independent recollection of the perpetrator.

However, an identification procedure is not suggestive merely because a witness has previously seen a defendant’s photograph. State v. Calloway, 97-796 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, writs denied, 98-2435, 98-2438 (La.1/8/99), 734 So.2d 1229. See also State v. Neslo, 433 So.2d 73, 77-78 (La.1983).

In this case, S.B. explained at the suppression hearing that she did not identify the defendant as her attacker following the rape on April 12, 2001 béeause the lighting was brighter and seemed to make his skin appear lighter than when she saw him earlier. She also stated that he was wearing shorts and a shirt at the time, while her attacker was wearing a white shirt and black pants. She also said that the attacker seemed to be larger.

On the evening of Easter Sunday, S.B. had fallen asleep on the couch and was awakened by her husband. She looked at the television and immediately recognized the photograph shown to be her attacker. Within a few days, she told the police she had recognized her attacker. S.B. also said she clipped and saved a newspaper article that contained the defendant’s photograph, but she had already called the police by the time she saw the article.

1230n October 15, 2001, Detective Men-chel showed S.B. a photographic lineup, from which S.B. positively identified the defendant as her attacker. Detective Menchel testified that it only took S.B. “[a] second” to identify the defendant. S.B. testified at the suppression hearing that Detective Menchel did not force or coerce her to make the identification. Further, S.B. testified she identified the defendant based on her observation of defendant as he was “sauntering” down the street while she was walking the loop in her driveway and during the attack. S.B. denied that she had reviewed the newspaper photograph before viewing the lineup. S.B. said that she had “no doubt” about her identification of the defendant.

Based on the foregoing, there is no basis for finding that S.B.’s identification was suggestive. It is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness. State v. Every, 96-185, p. 10 (La.App. 5 Cir. 7/30/96), 678 So.2d 952, 957.

Applying the factors in Manson v. Brathwaite, supra, we find there was no substantial likelihood of misidentification. S.B.’s testimony at the suppression hearing and at trial demonstrates that she was able to view her attacker before and during the attack and she was very certain when she identified the defendant at the photographic lineup. Although she was unable to initially identify the defendant immediately after the offense, a witness’s failure to identify an accused at a pretrial line-up does not necessarily preclude identification of the defendant in court. State v. Wright, 410 So.2d 1092, 1098 (La.1982). Rather, a witness’s failure to identify a suspect at a pretrial line-up goes to the weight of a witness’s testimony rather than its admissibility. Id.

Nor is there evidence that the identifications made by S.P. and H.D. were suggestive. Detective Menchel showed a photographic lineup to H.D. on April 12, 2001. Detective Spera showed a photographic lineup to S.P. on April 16, 2001. |24 Both officers testified they did not threaten or coerce the victims into making an identification.

Further, there was no substantial likelihood of misidentification. H.D. testified at the suppression hearing that the area outside of her friend’s door was lit. H.D. stated that the light was “shining on him” when she first saw her attacker. Further, she was able to get a full frontal view of his face. H.D. testified that she was one hundred percent certain of her identification. H.D. also assisted the police sketch artist in rendering a drawing, which was shown to the jury at trial.

At the suppression hearing, S.P. testified that the laundry room was very well lit and that she got a good look at her attacker. She made eye contact with the rapist. S.B. explained that the man was wearing a bandanna over his head over his face, just under his nose during the attack. However, when she first saw him, he was only wearing the bandanna on his head. S.P. also was one hundred percent certain of her identification of the defendant.

All of the victims were able to get a good look at the attacker, all paid attention to detail before and during the offense, and all were very certain in the identifications of the defendant as the perpetrator. Accordingly, we find no merit to this assignment.

ERROR PATENT DISCUSSION

We reviewed the record for patent errors and found several.

First, the indictment fails to identify any of the victims and, thus, does not comply with La.C.Cr.P. art. 473, which states in pertinent part, “When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the 12Btrue name of the victim or the name, appellation, or nickname by which he is known.”

However, the defendant was not prejudiced by surprise or lack of notice because the State had provided a copy of its entire file to them, so the failure of the indictment to state the victims’ names is harmless. See State v. Peterson, 96-1663, p. 3 (La.App. 3 Cir. 6/4/97), 696 So.2d 211, 213-214, writ denied, 97-1742 (La.11/26/97), 703 So.2d 644. Accordingly, this error is harmless.

Second, the record does not indicate that the trial court gave defendant notice of the registration requirements for sex offenders as required by La.R.S. 15:543(A). La.R.S. 15:542 requires that all persons convicted of a sex offense must register with the sheriff of the parish where the person resides. La.R.S. 15:543(A) requires the trial court to provide written notification of the registration requirements to the defendant upon judgment and sentencing. Such error may be cured by a remand with instructions and we shall do so in this case. See State v. Stevenson, 00-1296, p. 4 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-1167.

Finally, the defendant’s sentence for attempted aggravated rape is illegally lenient, because the trial court failed to specify that the sentence would be without benefit of parole, probation or suspension of sentence, as required by La.R.S. 14:27(D)(1). This Court need make no correction to this error, however, because the self-activating provisions of La.R.S. 15:301.1(A) will cause the defendant’s sentence to be served without benefits. See State v. Esteen, 01-879, p. 29 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

DECREE

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. The case is remanded to the trial court, which is ordered to inform defendant of the registration requirements of La.R.S. 15:542 by sending written notification to the defendant within ten days of rendition of this opinion and to file written proof in the record that defendant received such notice.

AFFIRMED AND REMANDED.

      . Pursuant to La.R.S. 46:1844(W), we identify the sex crime victims only by their initials.

      . We note the police drawing of H.D.'s attacker bears a striking resemblance to the photographs of the defendant admitted into evidence.

      . In 2001 Easter occurred on April 15, three days after the attack on S.B.

      . The taped statement was played for the jury and entered into evidence along with a transcript of the statement.

      . La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . La.R.S. 14:27 provides in pertinent part:
      D. Whoever attempts to commit any crime shall be punished as follows:
      (1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence ... [.]


author: CLARENCE E. McMANUS, Judge.

text:
    SALLEY & SALLEY v. Joyce T. STOLL.
    No. 03-CA-807.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Roland W. Baggott, III, The Baggott Law Offices, New Orleans, LA, for plaintiff-appellant.
    J. Kendall Rathburn, Moliere, Flanagan & Landry, Metairie, LA, for defendant-appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

This appeal arises out of a suit by the law firm of Salley & Salley against Joyce T. Stoll for unpaid legal bills. Plaintiff/appellant, Salley & Salley, appeals the trial court’s ruling awarding it the amount of $3,500.00, plus costs, on the basis of quantum meruit.

FACTS AND PROCEDURAL HISTORY

Joyce Stoll retained the law firm of Sal-ley & Salley to represent her in a divorce action filed by her husband. On May 5, 2000, Ms. Stoll signed a contract with Sal-ley & Salley for legal services. The contract provided that Ms. Stoll would be charged at the rate of $150.00 per hour for legal services and the smallest increment of billable time would be set at one quarter of an hour. The contract also provided that Ms. Stoll would receive a monthly billing statement itemizing each charge and the work done on her behalf. In conjunction with the contract, Ms. Stoll paid an initial retainer fee of $1,000.00 and also signed a promissory note in the amount of $5,000.00 in favor of Salley & Salley to serve as an additional retainer fee.

1 ¡¿Thereafter, Salley & Salley represented Ms. Stoll in the divorce proceedings until February 2001 at which time the attorney-client relationship was terminated. Salley & Salley subsequently brought suit on an open account and promissory note to collect the outstanding balance of $4,654.66 owed to it by Stoll, together with interest at the legal rate from date of judicial demand and for attorney fees. .On June 23, 2002 the parties proceeded to trial and the trial court ruled in favor of Salley & Salley awarding $3,500.00 on the basis of quantum meruit. On August 27, 2003, Salley & Salley filed a Motion for New Trial, which was heard and denied. Salley & Salley subsequently filed this instant appeal.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In its first two assignments of error, Salley & Salley contends the trial court erred by refusing to allow a full direct examination of its chief witness, Sandra S. Salley, and by refusing to allow its expert, Gene Meaux, to testify as to the reasonableness and necessity of the work performed by Salley & Salley on behalf-of Ms. Stoll.

At trial, Sandra Salley was called to testify concerning her representation of Ms. Stoll. In conjunction with her testimony, plaintiff, Salley & Salley, introduced detailed time sheets and invoices detailing the work done on Ms. Stoll’s case. When plaintiff’s counsel attempted to question Ms. Salley concerning individual charges, the trial judge interrupted the questioning and stated that it was not necessary for the witness to address each specific charge. Plaintiffs counsel subsequently proceeded with another line of questioning. At the conclusion of Ms. Salley’s testimony, plaintiff asked the trial court if it could call Gene Meaux as an expert witness in the area of Family Law, to testify to the reasonableness of the work performed by it on behalf of Ms. Stoll. The trial court denied the request.

LSA-C.C.P. art. 1636 provides, in pertinent part:

| ¿When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.

Here, plaintiff failed to proffer the testimony of either Sandra Salley or Gene Meaux and therefore is precluded from complaining of the exclusion of their testimony on appeal. See, McLean v. Hunter, 495 So.2d 1298 (La.1986). Accordingly, these two assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In its third assignment of error, Salley & Salley argues the trial court erred by considering pre-trial settlement negotiations in rendering judgment in the case. We have examined the record and do not find the trial court considered such evidence. At the opening of the case, pri- or to the introduction of evidence, the trial judge remarked that he had pre-tried the case and recommended a figure to the plaintiff. The judge noted that plaintiff refused the figure. The trial judge then stated he was ready to try the case and proceeded to do so. Nothing in the record reflects that the issue of the pre-trial settlement negotiations was raised during trial or that the trial judge considered the settlement negotiations in his decision. Therefore, we find this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Salley & Salley also contends the trial court erred by conducting the direct examination of Ms. Stoll. Generally, a trial judge, in order to maintain the impartiality that proper trial technique demands, should be careful not only as to the number and types of questions propounded by him to witnesses, but also as to the manner in which they are propounded. Lapeyrouse v. Barbaree, 02-0086 (La.App. 1 Cir. 12/20/02), 836 So.2d 417, 422; Midyett v. Midyett, 32,208 (La.App. 2 Cir. 9/22/99), 744 So.2d 669, 674. However, a layman who represents himself cannot be held to the same standards of skill and judgment that must be attributed | Rto an attorney, although a layman assumes responsibility for his own inadequacy and lack of knowledge of both procedural and substantive law. Lapeyrouse, supra at 422; Rader v. Department of Health and Hospitals, Office of Public Health, Engineering Services, 94-0763 (La.App. 1 Cir. 3/3/95), 652 So.2d 644, 646. Although a trial court has no affirmative duty to assist an unrepresented party, it does have authority in a non-jury case, to reasonably question a witness for clarification when the facts are confused, undeveloped or misleading. Lapeyrouse, supra at 423; Borgos v. Buras, 611 So.2d 764, 769 (La.App. 4 Cir.1992).

The defendant, Ms. Stoll, who was unrepresented in the instant matter took the stand to testify on her own behalf. The trial court then proceeded to question her in reference to the legal services rendered to her by Salley & Salley and whether she disputed the invoices and time sheets which had been submitted into evidence. Based on the record, we do not find the trial court abused its discretion by conducting the examination of Ms. Stoll. The questions were few in number, did not stray outside the scope of questions posed to plaintiffs witness and helped the trial judge clarify and develop the issues to be decided by the court.

Furthermore, we note that plaintiffs counsel did not object to the trial court’s questioning of Ms. Stoll, as required under LSA-C.E. art. 614(C). As a result, plaintiff waives its right to dispute the issue on appeal. Lapeyrouse, surpa at 423. Consequently, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

In its sixth assignment of error, Salley & Salley contends the trial court erred by refusing to allow it to conduct a full cross-examination of Ms. Stoll. During plaintiffs cross-examination of Ms. Stoll, plaintiffs counsel objected to Ms. Stoll’s responses to a series of questions as being non-responsive. The trial judge sustained the objections and then informed plaintiffs counsel that his questions were getting no results and asked him if he wished to ask anymore questions. | Plaintiffs counsel responded he was finished examining the witness. Based on the exchange between the trial judge and defense counsel, it is clear from the record that plaintiffs counsel was afforded an opportunity to continue the cross-examination of Ms. Stoll but chose not to do so. For these reasons, this assignment is without merit.

ASSIGNMENTS OF ERROR NUMBERS FOUR, SEVEN, AND NINE

Salley & Salley also contends the trial court erred by (1) failing to consider the promissory note executed by Ms. Stoll, (2) failing to award the full amount prayed for in the petition, and (3) failing to award attorney fees.

In the present case, Ms. Stoll signed a promissory note in the amount of $5,000.00 in favor of Salley & Salley to serve as a retainer fee. Prior to earning the $5,000.00 fee, the attorney-client relationship was terminated. At trial, the judge disregarded the promissory note and thereafter decided the matter on the basis of quantum meruit.

When an attorney is discharged before entirely earning his fee, he cannot rely on commercial laws to collect on a promissory note given in connection with the legal services. Under these circumstances, he is entitled to remuneration for services actually rendered. Sanders v. Federal Apartments Ltd. Partnership, 31,562 (La.App. 2 Cir. 2/24/99), 733 So.2d 45, 47-48.

In the instant case, the trial court decided the matter on quantum meruit; however, quantum meruit does not serve to permit a client who has agreed to pay an hourly fee, and on whose behalf services have been performed pursuant to that agreement, to ignore statements for those services, discharge the attorney, and avoid contractual fee obligations theretofore incurred. As to services rendered in accordance with the parties’ agreement, the contractual provision is enforceable unless the fee is “excessive, unearned, or incommensurate.” Lester v. Lester, 516 So.2d 219 (La.App. 4 Cir.1987).

Under the circumstances of this case, we find the trial court was correct in disregarding the promissory note; however, we find the trial court erred in rendering judgment on the basis of quantum meruit. Here, Ms. Stoll signed a contract with Salley & Salley, which provided she would be billed for legal services at the rate of $150.00 per hour. The trial judge found the hourly fee to be reasonable and therefore the contract provision is enforceable. Furthermore, we find the detailed invoices contained in the record establish the total amount in principal of services rendered was $4,422.50. While Ms, Stoll maintained at trial that she was not satisfied with the results in her case, she did not contest that Salley & Salley performed the billed services. Accordingly, we find Salley & Salley is entitled to recover $4,422.50 for legal services rendered.

Salley & Salley also contends the trial court erred in failing to award attorney’s fees under LSA-R.S. 9:2781 and as provided for in the promissory note. Having found the promissory note was properly disregarded by the trial court, we examine whether Salley & Salley was entitled to recover attorney’s fees under LSA-R.S. 9:2781-. Collection of attorney’s fees on an open account presupposes the existence of an open account. While Salley & Salley styled its petition as one on open account and promissory note, certain factors must be considered to treat the matter as an open account.

To prevail on a suit on open account, the creditor must prove that the debtor contracted for the services on an open account. There must necessarily be a contract which gave rise to the debt. Dixie Machine Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167, 1169; Vezina and Associates v. Gottula, 94-593 (La.App. 5 Cir. 3/1/95), 652 So.2d 85, writ denied, 95-825 (La.5/5/95), 654 So.2d 332. One who sues on open account has the burden of proving the contract. Dixie Machine Welding & Metal Works, Inc., supra at 1169; Deubler Elec. v. Knockers of Louisiana, 95-372 (La.App. 5 Cir. 11/15/95), 665 So.2d 481.

Factors to be considered in deciding whether an open account exists are: (1) whether there were other business transactions; (2) whether a line of credit was extended by one party to the other; (3) whether there are running or current dealings; (4) whether there are expectations of other dealings. Dixie Machine Welding & Metal Works, Inc., supra at 1170.

A review of the record reveals the existence of a contract between Salley & Sal-ley and Ms. Stoll wherein Salley & Salley was to perform legal services for Ms. Stoll at a certain hourly rate. Furthermore, the invoices establish running dealings between the parties in the form of continued representation of Ms. Stoll by Salley & Salley for approximately a year throughout which time Ms. Stoll was extended a line of credit for those services. Accordingly, we conclude an open account existed in the instant matter.

However, in order to recover attorney fees under LSA-R.S. 9:2781, a party bringing suit on an open account must strictly comply with that statute which provides in part:

(A) When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

The record reflects and Ms. Stoll acknowledged at trial that she received a written demand letter from Sally & Salley sent via certified mail with an attached invoice setting forth that the total amount owed on the account was $4,422.50. However, Salley & Salley’s Petition on Open Account and Promissory Note |nalleged that the amount owed was $4,654.66. The discrepancy in the amounts is the result of the addition of a late charge and interest on the $4,422.50. However, the imposition of late charges and interest are not provided for in the contract between the parties and as a result we find that Salley & Salley failed to comply with the technical requirements of LSA-R.S. 9:2781 and thus are not entitled to attorney’s fees.

ASSIGNMENT OF ERROR NUMBER EIGHT

Lastly, we examine Salley & Salley’s contention that the trial court erred in awarding interest from the date of judicial demand instead of awarding interest from May 5, 2000, the date the promissory note was executed by Ms. Stoll. Having found the trial court properly disregarded the promissory note, we find no error in the trial court awarding interest from the date of judicial demand.

For the foregoing reasons, the judgment of the trial judge is hereby amended to reflect judgment in favor of Salley & Sal-ley and against Joyce T. Stoll for the sum of $4,442.50 together with legal interest thereon from the date of judicial demand until paid, and for all costs, including appellate costs. Furthermore, appellant’s motion for additional attorney fees is hereby denied.

AMENDED AND AFFIRMED AS AMENDED.


author: 11 MARION F. EDWARDS, Judge.

text:
    Elec CAZES v. Derek PERTUIT, in his Individual Capacity and Official Capacity, Official Capacity being a Suit against the City of Gramercy, David Detiellier, in his Individual Capacity and Official Capacity, Official Capacity being a Suit against the City of Gramercy and Cherie Cazes.
    No. 03-CA-842.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.
    Edward Grady Partin, Baton Rouge, LA, for Appellant.
    Barbara Malik Weller, Metairie, LA, for Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   11 MARION F. EDWARDS, Judge.

Plaintiff, Elec Cazes, appeals the trial court’s grant of summary judgment in favor of defendants, Officers Derek Pertuis and David Detillier. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

In July of 2001, plaintiff, Elec Cazes, (“Mr.Cazes”) filed a petition for divorce from his wife, Cherie Cazes, (“Ms.Cazes”), who resided with him in the marital home in Lutcher, Louisiana within St. James Parish. Mr. Cazes’ petition for divorce included a request for a temporary restraining order against Ms. Cazes, which the court granted. The temporary restraining order was served upon Ms. Cazes and she was subsequently required to leave the home, after being given several minutes to collect her belongings. Ms. Cazes and her three children then moved in with her mother in Laplace. Over the next few weeks, Ms. Cazes made several attempts to return to the home in order to collect clothing for her and her children with the assistance of police, pursuant to LSA-R.S. 46:2135, but was unsuccessful.

On July 28, 2001, Ms. Cazes placed a call to the St. James Sheriffs Office for an escort to her home to obtain clothing. The Sheriffs office advised Ms. Cases that no officers were available, but to wait for assistance. While waiting in a Gramercy parking lot, a police officer from the city of Gramercy, Derek Pertuis, approached Ms. Cazes where she was parked and asked her if she | ¿needed assistance. After advising Officer Pertuis of her situation, he contacted a dispatcher and obtained approval to escort Ms. Cazes to the home in Luteher. They were met at the residence by another Gramercy police officer, David Detillier.

Mr. Cazes was present when Ms. Cazes and the two officers arrived at the home. Upon entering the home, Mr. Cazes was instructed by Officer Pertuis to sit on the sofa while Ms. Cazes obtained the clothing. Officer Detillier remained outside. Approximately ten minutes later, Ms. Cazes and the officers left the residence.

On October 19, 2001, Mr. Cazes filed a Petition For Damages Under 42 U.S.C. Section 1983 and La. C.C. art. 2316 against Ms. Cazes, Derrick Pertuis, and David De-tillier, alleging that they had deprived him of his constitutional right to be free of unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution.

On December 4, 2001, the trial court signed a judgment that dismissed Ms. Cazes from the instant suit, finding that 42 U.S.C. Section 1983 was not intended to protect against private trespass. On February 16, 2003, Pertuis and Detillier filed a Motion for Summary Judgment on the issue of their liability, which the trial court granted on April 1, 2002. Mr. Cazes timely filed the present appeal.

LAW AND ANALYSIS

In his first assignment of error, Cazes asserts that the trial court erred in concluding that the Fourth Amendment was not implicated by Officer Pertuis’ warrant-less entry into his home. In his second assignment of error, Cazes claims that the trial court erred in finding that his submission to the officers’ show of authority did not constitute a seizure of his person.

| oAppellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

In State v. Edwards, the Louisiana Supreme Court noted in regard to the fourth amendment:

The fourth amendment to the U.S. Constitution requires that searches and seizures must be reasonable. The purpose of this protection against unreasonable searches and seizures is to safeguard the privacy and security of individual citizens against arbitrary invasions by government authorities. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).

|4In this case, Officers Pertuis and Detil-lier assisted Ms. Cazes in retrieving clothing and personal effects from the former marital home, pursuant to LSA-R.S. 46:2135(C), which provides:

During the existence of the temporary restraining order, a party shall have the right to return to the family residence once to recover his or her personal clothing and necessities, provided that the party is accompanied by a law enforcement officer to insure the protection and safety of the parties.

Mr. Cazes first contends, however, under 42 U.S.C. § 1983, that the alleged violation of his fourth amendment rights took place with the entry of Officer Pertuis into his home without a warrant, and that there was a “seizure” of his person when Officer Pertuis instructed him to sit on the sofa while Ms. Cazes gathered her belongings.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...

In it’s Reasons For Judgment, the trial court explained:

[I]t is this Court’s opinion that the actions of the defendant Gramercy police officers did not rise to the level of a “search and seizure” under the Fourth Amendment as asserted by plaintiffs petition for damages. The facts, as supported by movant’s motion for summary judgment, show that the defendant police officers were in fact acting pursuant to LSA-R.S. 46:2135(0 ...
Even taking the facts alleged by plaintiffs as true, the Court finds the defendant officers in this matter did not conduct any search or seizure of Elec Cazes or his residence. Neither Officers Per-tuis or Detillier were conducting any sort of police investigation of Elec Cazes with regards to the commission of any criminal offense nor were they attempting to seize evidence for any sort of criminal prosecution. Rather, it is apparent that the defendants were simply providing Cherie Cazes and her daughter with assistance in the recovery of personal items (clothing and necessities) with police supervision, as required by Louisiana law.

[BIn making its determination that Pertuis and Detillier were entitled to judgment as a matter of law in regard to Cazes claim under 42 U.S.C. § 1983, the trial court further noted that nothing in the record indicates that the officers threatened or touched Cazes or removed anything from his house; that the officers were on the premises for approximately ten minutes or less; and that the officers were dispatched by the St. James dispatcher and authorized by Gramercy Police policies to act and provide assistance to other parish agencies as they did in this matter.

After a review of the record, we cannot say that the trial court’s conclusion, that Mr. Cazes’ fourth amendment rights were not violated, as well as its decision to grant summary judgment on this issue, is erroneous. Accordingly, we also find no merit in Mr. Cazes’ second assignment of error, that the trial court erred in finding that his submission to the officers’ show of authority did not constitute a seizure of his person.

Cazes has also requested this court to review the record for all errors patent. Uniform Rules, Courts of Appeal, Rule 2-12.4 requires, however, that, “The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the action of the trial court thereon, a specification or assignment of alleged errors relied upon ...” [Emphasis added]. Accordingly, we decline to address any issues not specifically raised by Mr. Cazes on appeal.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir.12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . 2000-1246 (La.6/1/01), 787 So.2d 981.