author: JjLEON A. CANNIZZARO, JR., Judge. LOVE, J.,

text:
    STATE of Louisiana v. Sebastian SHORT.
    No. 2002-K-2766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Harry F. Connick, Orleans Parish, District Attorney, Scot P. Koloski Assistant District Attorney, New Orleans, LA, for State of Louisiana/Relator.
    Powell Miller, Orleans Indigent Defender Program, New Orleans, LA, for Defendant/Respondent.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

The defendant, Sebastian Short, was charged with one count of simple possession of cocaine, to which he pled not guilty. He subsequently filed a motion to suppress the evidence against him, which the trial court granted. On the application of the State of Louisiana, we grant this writ to review the trial court’s judgment suppressing the evidence.

On the evening of October 10, 2002, New Orleans Police Department Officers Abram Pedesclaux and Chad Jacobs were stopped at a red light at the corner of South Claiborne and Washington Avenues. After the officers’ light turned green, a car driven by the defendant ran the red light on South Claiborne. The officers turned the corner and stopped the defendant in the same block. Officer Pedesclaux testified at the suppression hearing that when they stopped the defendant, he admitted that he did not have a driver’s license. At that point, the officers ordered him out of the car, handcuffed him, frisked him, and placed him in the back of their patrol car. When the defendant opened his car door, Officer Jacobs noticed a baggie hanging out of the pocket of the door. In addition, the defendant appeared nervous. The officers suspected the baggie may have contained contraband and called for a canine unit. When the dog arrived, it [ ¡>“alerted” on the side panel of the driver’s door and on the console inside the car. The officers seized the baggie, which contained rocks of crack cocaine. Officer Pedesclaux insisted that nothing was seized from the car until after the dog indicated contraband was present. He further testified that in addition to arresting the defendant for possession of the cocaine, the officers issued citations to him for running the red light, driving without a license, and careless operation of a vehicle.

On cross-examination, Officer Pedes-claux testified that although the defendant admitted he did not have a driver’s license, the officers did not arrest him immediately for the offense because they first wanted to verify that no license had been issued to him. Officer Pedesclaux also testified that he and his partner did not ask the defendant his “name and information” prior to handcuffing him and placing him in the back of their car. On re-direct, he stated that driving without a license is an “arrestable” offense.

The trial judge gave no reasons for finding “no probable cause” and suppressing the evidence, yet it appears from his questions posed to Officer Pedesclaux that he was bothered by the fact that the officers ordered the defendant out of the car, handcuffed him, and placed him in the back of the police car prior to ascertaining that he had no driver’s license. However, we note that no evidence was seized from the defendant himself; indeed, Officer Pe-desclaux testified that Officer Jacobs frisked the defendant and found no weapons. Rather, the evidence seized came from the pocket of the driver’s door in the defendant’s car. Officer Jacobs noticed the baggie, which was found to contain cocaine, when the defendant opened his door and exited the car. Thus, the issue is whether the officers were justified in ordering the defendant to exit his car.

|3It is undisputed that the officers saw the defendant commit a traffic offense. At that point, they had probable cause to stop him for the commission of that offense. See State v. Wilson, 467 So.2d 503, 515 (La.1985); State v. Diaz, 2001-0523 (La.App. 4 Cir. 10/31/01), 800 So.2d 1090. In addition, after the officers stopped the defendant, he admitted that he did not have a driver’s license. At that point the officers had probable cause to arrest him for driving without a license and could lawfully order him to exit the car.

The State next argues that the officers were justified in seizing the baggie containing cocaine because one of them “observed a plastic bag containing a white rock-like substance in plain view in an open compartment in the driver side door.” The transcript, however, indicates that Officer Pedesclaux never stated that either he or his partner actually saw the rocks of cocaine; he merely testified that Officer Jacobs saw the baggie hanging out of the car door’s pocket. As such, contrary to the State’s argument, the plain view exception to the warrant requirement would not apply to this case because there was no showing that the officers saw the rocks and immediately recognized them as cocaine. See State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205; State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132.

Nonetheless, because the officers had probable cause to arrest the defendant for driving without a license, they could detain him while they called for the canine unit. In State v. Miller, 2000-1657 (La.10/26/01), 798 So.2d 947, the Court held that the officers were justified in detaining the defendant, stopped for a traffic violation, for almost an hour while waiting for a canine unit to arrive. The Court found that although the officers did not have probable cause to arrest the defendant for an offense during this time period, her answers to their questions gave them | reasonable suspicion of criminal activity, and the duration of the wait for the canine unit “reasonably correlated with the escalating level of suspicion as the officers pursued a means of investigation likely to confirm or dispel the trooper’s suspicions without unnecessary delay.” Id. at p. 4, 798 So.2d at 950. The Court further noted that the intrusiveness of the stop did not intensify as the duration of the stop increased.

In this case, the officers were justified in detaining the defendant because he admitted that he did not have a driver’s license. The baggie in the defendant’s car, as well as his nervousness, gave the officers reasonable suspicion to believe the baggie might contain contraband. They called for a canine unit, and the dog “alerted” on the door panel where the baggie was located. A canine search is not a “search” within the meaning of the Fourth Amendment. See U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Boudreaux, 98-2306 (La.App. 4 Cir. 1/26/00), 752 So.2d 304. Once the dog “alerted” on the panel, the officers had probable cause to search the car without first obtaining a warrant. See Maryland v. Dyson, 521 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Wyatt, 99-2221 (La.App. 4 Cir. 9/27/00), 775 So.2d 481. Thus, we find the trial court erred in suppressing the bag of cocaine.

Accordingly, for the above reasons, the trial court judgment granting the defendant’s motion to suppress is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

LOVE, J., DISSENTS WITH REASON.

LOVE, J.,

dissents with reasons.

I respectfully dissent. The trial court was correct in granting the motion to suppress, as the officers did not have probable cause to arrest Sebastian Short. When Mr. Short informed the officers that he did not have a driver’s license, they were required under La. C.Cr.P. art. 211.4 to confirm whether Mr. Short had been issued a valid driver’s license. Instead they immediately removed him from the car, handcuffed him, frisked him, and placed him in the back of the police unit. According to the testimony of the officers, they did not ask Mr. Short his name or any other identifying information before placing him in the back seat of the police vehicle; hence, the officers could not have confirmed that Mr. Short was not issued a valid driver’s license before the arrest. Therefore, the arrest was improper. It was in executing this unlawful arrest that the officers discovered plastic baggie in the door, which the officers attest then gave them reasonable suspicion to detain Mr. Short until the K-9 unit arrived. However, without the unlawful arrest the officers’ would not have had reasonable suspicion. Therefore, the evidence should be suppressed.


source: Caselaw Access Project

author: | .MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Roland J. DAVIS.
    No. 2002-KA-2059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, For PlaintiffAp-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   | .MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

Defendant Roland J. Davis was charged by bill of information on April 5, 2002 with distribution of a substance falsely represented to be a controlled dangerous substance, a violation of La. R.S. 40:971.1. Defendant pleaded not guilty at his April 10, 2002 arraignment. On June 10, 2002, defendant was tried and found guilty as charged by a six-person jury. On July 26, 2002, the trial court denied defendant’s motions for new trial and for post-verdict judgment of acquittal. Defendant waived all legal delays and was sentenced to forty months at hard labor with credit for time served. The trial court denied defendant’s motion to reconsider the sentence. On that same date, defendant pleaded guilty to being a third-felony habitual offender. Defendant waived all legal delays, and the court vacated the original sentence and resentenced defendant to the same sentence, forty months at hard labor with credit for time served. The trial court granted defendant’s motion for appeal on July 26, 2002.

J¿'ACTS

New Orleans Police Department Detective Jeff Keating testified that at 10:00 p.m. on February 6, 2002, during Mardi Gras, he was working in an undercover capacity in the 500 block of Bourbon Street. Defendant approached him. The two made eye contact, and defendant asked if he was looking for anything. Det. Keating replied that he was looking for something to party with. Defendant said he had ecstasy, which Det. Keating knew to be a Schedule I narcotic. The detective indicated he was interested, and defendant said they were twenty dollars a tablet. Det. Keating said he would take one, and handed defendant a twenty-dollar bill. Defendant accepted the money, and put it into his right pants pocket. Defendant then removed a circular black plastic container from his left pants pocket, opened it, and removed a tablet from it. After the transaction was completed, Det. Keating gave a prearranged signal to other officers, who arrested defendant three to five steps away from Det. Keating. Det. Keat-ing identified the black plastic container in evidence, and the tablet he purchased from defendant.

It was stipulated by the State and defendant that criminalist John Palm Jr., if called as a witness, would testify that the tablet defendant sold Det. Keating, and eleven other tablets and the plastic container they were in, tested negative for any controlled dangerous substance.

New Orleans Police Officer Sergeant Michael Lohman and Det. David Lemoine were standing a few feet away from Det. Keating at the time of the sale. Sgt. Lohman observed everything. He and Det. Lemoine arrested defendant after being signaled by Det. Keating. Det. Loh-man recovered the twenty-dollar from defendant’s right front pants pocket and the black plastic container with eleven tablets from defendant’s left front pants pocket. Det. Lohman identified the | ^evidence. Det. Lohman admitted on cross examination that, based on his experience and the appearance of the tablets, he did not believe they were controlled dangerous substances, but instead were counterfeit. He said the testing confirmed his belief. Det. Lohman conceded that one or two pedestrians might have walked between him and Det. Keating and defendant during the sale. However, the detective maintained that his view of the sale had not been obscured.

Defendant, testifying in his own behalf, admitted to two convictions for possession of cocaine and one for solicitation of prostitution. He stated that Det. Keating approached him and inquired about marijuana. He told the officer he did not fool with marijuana. The detective noticed the pillbox in his hand, and asked what was inside. Defendant said he opened the box and took out a pill, and the next thing he knew he was being handcuffed. He said no one gave him any money. He claimed to have told the officer where he could purchase a whole box of the pills at a herb/import shop two blocks from where they were standing. He said he had just left the herb/import shop; he used to work there. Defendant saw an officer he knew at the police station, and that officer talked to one of the arresting officers and returned to tell defendant that police did not have anything on him and would let him go if he gave them a “drug deal.”

Defendant was asked on cross examination why the officers conspired to arrest him. He said there were a lot of reasons, such as they just wanted to make an arrest. He had paid twenty-five dollars for the herb pills that evening, and had no other money. When Det. Keating asked about the pills he had, defendant told him it was herbal ecstasy. He said he opened the box and the detective took the pill out of the box. Defendant said one of his cocaine convictions arose out of an arrest in the French Quarter area. On the day he was arrested for the instant Loffense, defendant was waiting for his girlfriend to get off work at a coffee shop across the street from the herb shop.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

In this first assignment of error, defendant claims that the evidence is constitutionally insufficient to sustain his conviction.

This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
|sIn addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

Defendant was convicted of violating La. R.S. 40:971.1, which provides:

A. It shall be unlawful for any person to produce, manufacture, distribute, or dispense any substance which is represented to be a controlled dangerous substance and which is an imitation controlled dangerous substance, or any controlled dangerous substance which is a counterfeit controlled dangerous substance.

In State v. Pierre, 500 So.2d 382 (La.1987), cited by defendant, the court stated:

The culpable mental element in R.S. 40:971.1 is the representation underlying the nature of the substance. It is impossible for one to unknowingly represent that a substance is an illegal drug or narcotic. When one “represents,” he acts with intent. Thus, the criminal intent required by the statute is implicit in the word “represented.” The state bears the burden of proving the offender’s criminal intent by showing that the offender produced, manufactured, distributed or dispensed a substance which he represented to be a controlled dangerous substance.

500 So.2d at 384-385.

| ^Defendant notes that the commercial herb pill box was labeled “ecstasy.” When cross examining defendant, the prosecutor referred to the pill box as stating “psychedelic [sic] ecstasy.” Defendant submits that, viewing the evidence in light most favorable to the prosecution, “the evidence showed that [he] claimed the pill was ‘ecstasy’,” that in fact it was ecstasy — herbal ecstasy — and that sale of herbal ecstasy is not a crime.

Det. Keating testified that he told defendant he was looking for something to party with. According to Det. Keating, defendant replied that he had some “ecstasy.” Defendant contradicted that, stating that he told the detective it was “herbal ecstasy.” Det. Keating testified that he knew ecstasy to be a Schedule I narcotic (controlled dangerous substance). The detective paid twenty dollars for one tablet of the substance, which was some sort of herbal product labeled “psychedelic ecstasy.” There was no testimony that twenty dollars was common street price for one tablet of ecstasy. However, defendant had eleven more tablets of the substance in a small container, and admitted that he had purchased the container of tablets that evening for twenty-five dollars from a herbal shop in the French Quarter. The fact that defendant sold this single tablet for twenty dollars evidences his intent to represent the product as the controlled dangerous substance Det. Keating knew as ecstasy.

Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant distributed the tablet to Det. Keating, knowingly representing it to be the controlled dangerous substance commonly referred to as ecstasy, but which in fact effectively was an imitation/counterfeit controlled dangerous substance.

There is no merit to this assignment of error.

[ ASSIGNMENT OF ERROR NO. 2

In the second of his two assignments of error, defendant claims that the trial court erred in overruling his objections to parts of the prosecutor’s closing argument, which defendant asserts referred to other crimes committed by defendant. The prosecutor attacked defendant’s credibility in closing argument, noting that, because defendant testified in his own behalf, the jury had a right to know he had prior convictions, including one from an arrest in the French Quarter. The prosecutor further noted that defendant had been arrested for the instant offense while in the French Quarter.

Defendant admitted his prior convictions when he testified. La. C.E. art. 404(B) bars use of evidence of other crimes to prove the character of a person in order to show that he acted in conformity therewith. However, La. C.E. art. 609.1 provides that every witness in a criminal case who testifies subjects himself to examination relative to his criminal convictions on the issue of credibility. Thus, the prosecutor’s reference to the fact of the convictions in his closing argument attacking defendant’s credibility was proper.

While the fact of the convictions is admissible to attack credibility, La. C.E. art. 609.1(C) bars reference to details of those convictions, except in limited circumstances, none of which are applicable in the instant case. In the instant case defense counsel made two general objections, without specifying the ground therefore, immediately after the prosecutor referred to the prior convictions and details thereof. After the jury had retired, the trial court entertained objections, and defense counsel made a more specific objection that the prosecutor had improperly referred to details of the convictions and made a “pattern” argument. This referred to the prosecutor’s comment that one of the prior convictions arose from an arrest |sin the French Quarter, and that the arrest in the instant case also occurred in the French Quarter. The trial court noted the objection for the record.

We note that defense counsel did not request a mistrial, or an admonition to the jury. Defendant submits that asking for an admonition or mistrial “was pointless,” and argues that his conviction should be reversed because he was prejudiced by the prosecutor’s pattern argument. However, defendant’s remedy in this instance was to move for mistrial pursuant to La. C.Cr.P. art. 775, providing that on motion of a defendant a trial court shall grant a mistrial where prejudicial conduct in or outside of the courtroom makes it impossible for a defendant to obtain a fair trial. Defendant cannot now argue reversible error where he failed to move for a mistrial. See State v. Robinson, 2000-1050 (La.App. 4 Cir. 4/11/01), 784 So.2d 781 (reversing conviction on ground counsel ineffective in failing to move for a mistrial after prosecutor’s reference to inadmissible other crimes during rebuttal argument), reversed, 2001-1373 (La.4/26/02), 816 So.2d 846 (appellate record insufficient to determine whether failure to move for mistrial strategic decision).

Accordingly, there is no merit to this assignment of error.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The prosecutor's reference to the details of the prior convictions would not fall under the mistrial provisions of La. C.Cr.P. art. 770(2), which bars reference to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Even under this statute, the defendant must move for the mistrial.


author: I WILLIAM H. BYRNES, III, Chief Judge.

text:
    Vernon COOPER v. PUBLIC BELT RAILROAD, et al.
    No. 2002-C-2051.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Gregory G. Weiss, Terese M. Bennett, Weiss & Eason, L.L.P., New Orleans, LA, for the Plaintiff/Relator.
    Harry S. Hardin, III, Joseph S. Piacun, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Defendant/Respondent.
    Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY.
   I WILLIAM H. BYRNES, III, Chief Judge.

The plaintiff Vernon Cooper’s writ application is granted to review the trial court’s ruling that denied the plaintiffs motion in limine. We affirm.

Facts

In the early morning hours of May 25, 1998, a Public Belt Railroad (“PBR”) train hit the plaintiff as he left the “Moonwalk”, a public area located near the Mississippi River. At the time of the accident, Cooper was allegedly walking across the railroad tracks, returning to the French Quarter.

Procedural History

Vernon Cooper sued PBR and various others, alleging theories of negligence and strict liability.

Ingrid Pucciarelli was allegedly an eyewitness to the accident. PBR obtained an affidavit from Ms. Pucciarelli on May 28, 1999. In August 1999, the plaintiff sought discovery of the affidavit and the investigative report of PBR’s investigator. PBR refused to relinquish the affidavit or the report, and Cooper sought to compel discovery of these documents. Following an in camera | ¡/inspection, the trial court ruled that the documents were privileged and refused to order production of the documents. On April 12, 2000, in writ no. 99-C-3175, this court denied Cooper’s writ application, finding that on the showing made, Cooper failed to show an abuse of the trial court’s discretion.

In her September 8, 2000 deposition, Ms. Pucciarelli testified that she had no recollection of the contents of her affidavit, had not seen the affidavit prior to the deposition, and that she did not draft the affidavit. Further, she did not remember a notary being present during the signing of the affidavits. Cooper’s counsel alleges that he was unable to discuss the affidavit with Ms. Pucciarelli because she had no recollection of the document, and PBR had refused to produce it because of its claim that the affidavit was privileged.

On July 1, 2002, PBR waived its privilege and supplemented its discovery with the affidavit. Ms. Pucciarelli’s affidavit contradicts the testimony given in her deposition in some respects and mentions another alleged eyewitness, Jason Valde-via, who was placed on PBR’s witness list on the same date that discovery was supplemented. On July 23, 2002, Cooper filed a motion in limine to preclude the affidavit from being used at trial on the ground that PBR’s untimely waiver enabled PBR to engage in trial by ambush and prejudices the plaintiffs case. On September 10, 2002, the trial court denied Cooper’s motion, and ruled that the parties would be permitted to introduce evidence and testimony concerning Ms. Pucciarelli’s affidavit. Cooper requests a review of that ruling.

In his writ application, Cooper argues that the trial court erred by denying his motion in limine because: (1) the affidavit and the investigative report are the 13work product of PBR and should not be admissible under the La.Code of Evidence; and (2) PBR’s expert should not be allowed to testify based on privileged documents.

The trial court’s ruling does not address the admissibility of the investigative report or what documents may be addressed by PBR’s expert witness at trial. At issue in Cooper’s present writ application is whether the trial court erred in denying Cooper’s motion in limine to exclude Mrs. Pucciarelli’s May 28,1999 affidavit.

Standard of Review

The trial court has great discretion in its consideration of evidentiary matters such as motions in limine. Heller v. Nobel Insurance Group, 2000-0261 (La.2/2/00), 753 So.2d 841; Furlough v. Union Pacific RR Co., 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, 757, writ denied, 2000-2929 (La.1/12/01), 781 So.2d 556. On review, the appellate court must determine whether the trial court abused its great discretion in ruling on a motion in limine.

Waiver of Work Product Qualified Privilege

Cooper argues that previously the trial court and this court found that the affidavit is privileged, and is not discoverable or admissible at trial. In previously denying supervisory writs, this court implied that the affidavit was privileged when it stated:

On the showing made, we find no abuse of the trial court’s discretion in denying plaintiffs motion to compel production of documents. The plaintiff failed to show that the denial of this information would unfairly prejudice the plaintiff in preparing his claim or would cause him undue hardship. See La. C.C.P. art. 1424.

La. C.C.P. art. 1424 provides in pertinent part:

|4Art. 1424. Scope of discovery; trial preparation; materials

The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production'or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.

In the first paragraph, La. C.C.P. art. 1424 creates two types of privileges for discovery materials: (1) The first sentence provides for a qualified privilege; and (2) the second sentence provides for an absolute privilege.

The affidavit in question apparently was taken by one of PBR’s investigators before a notary and is privileged pursuant to the first sentence of La. C.C.P. art. 1424. In denying Cooper’s original writ application, this court recognized the qualified nature of the privilege when it noted that Cooper failed to demonstrate that denial of access to this information would unfairly prejudice him or cause him undue hardship.

The affidavit consists of Ms. Pucciarelli’s impressions only, and the affidavit is privileged under the first sentence of La. C.C.P. art. 1424, which governs writings obtained by the adverse party in preparation for trial. Cooper provides no cases that hold that the work product privilege cannot be waived or that documents obtained under the work product privilege are inadmissible at trial.

La. C.C.P. art. 1424 provides that information covered by the work product rule may be released in cases wherein a party can show prejudice or hardship if access to the privileged information is denied.

|,fin Simmons v. Transit Management of Southeast Louisiana, Inc., 2000-2530 (La.App. 4 Cir. 2/7/01), 780 So.2d 1074, 1076-1078, unit denied, 2001-0421 (La.2/16/01), 786 So.2d 106, this Court noted:

... La. C.C.P. art. 1424, which establishes the “attorney work-product rule,” generally prohibits courts from ordering “the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indem-nitor, expert, or agent in anticipation of litigation or in preparation for trial.” However, that prohibition does not apply when the court is “satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.” The purposes of the work-product rule are both to provide an attorney a “zone of privacy” within which he is free to evaluate and prepare his case without scrutiny by his adversary and to assist clients in obtaining complete legal advice. Hodges v. Southern Farm Bureau Casualty Insurance Co., 433 So.2d 125, 131-32 (La.1983). Moreover, the privilege created by the work-product doctrine is qualified, not absolute. Id. at 131.

Louisiana’s jurisprudence consistently has recognized that the privilege created by the work product doctrine is qualified, not absolute. Landis v. Moreau, 2000-1157, p. 9-10 (La.2/21/01), 779 So.2d 691, 697; Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 131-32 (La.1983); Whittenburg v. Zurich American Ins. Co., 2000-2697 (La.App. 4 Cir. 4/18/01), 786 So.2d 163, 166.

Absolute Privilege under 23 U.S.C. § 4.09

Cooper maintains that Ms. Pucciarelli’s affidavit is privileged because it consists of the mental impressions, conclusions, opinions or theories of an attorney or an expert and that the privilege is an absolute one. Cooper refers to Palacios v. Louisiana and Delta R.R., Inc., 98-2932 (La.7/2/99), 740 So.2d 95 and Sevario v. State ex rel. Dept. of Transp. and Development, 98-1302 (La.App. 1 Cir. 1/10/99), 752 So.2d 221, writ denied, 1999-3457 (La.4/7/00), 759 So.2d 760, and writs not considered, 1999-3638 & 2000-0044 (La.4/7/00), 759 So.2d 81, 82, for the proposition that PBR’s experts should not be allowed to render an opinion based on these privileged documents.

Palacios and Sevario, are distinguishable from the present case. In both cases, the plaintiffs’ experts relied on documents privileged under 23 U.S.C. § 409, a federal statute that bars discovery and admission as evidence of highway safety information compiled by the states for the purpose of obtaining federal funds to enforce safety. The purpose for the creation of that evidentiary privilege was to foster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil tort suits. Palacios, swpra, 740 So.2d 95 at 98. For that reason, an absolute prohibition against discovery or use of such information exists.

The work product privilege differs from the privilege created by 23 U.S.C. § 409. Because of the need to promote the free flow of information, the privilege created by 23 U.S.C. § 409 must necessarily be absolute, i.e., that information must be shielded from discovery and admission at trial at all cost. However, the work product privilege provides an attorney a “zone of privacy” within which he is free to evaluate and prepare his case without scrutiny by his adversary and to assist clients in obtaining complete legal advice. Landis v. Moreau; supra; Whittenburg v. Zurich American Ins Co., supra.

The work product privilege may be waived, and in the present case, PBR waived the privilege when it voluntarily provided Cooper with Ms. Pucciarelli’s affidavit. Additionally, the parties do not dispute the fact that the affidavit will be Lused at trial solely for impeachment purposes. At the time that the issue of dis-coverability of the affidavit was first addressed by the trial court and this court, neither party had deposed Mr. Pucciarelli and neither party had listed her as a witness. However, when she gave a slightly different version of how the accident occurred, PBR recognized that the affidavit may be needed for impeachment purposes, waived its work product privilege, and voluntarily provided Cooper with the affidavit.

Privileged Information Admissible for Impeachment Purposes

This court has previously stated that use of privileged information for impeachment purposes, even in cases wherein privileges have not been waived, is a recognized exception to various privileges because of the need to further the goal of truthseeking. In Pitard v. Stillwater Transfer and Storage Co., 589 So.2d 1127, 1132 (La.App. 4 Cir.1991), writs denied, 594 So.2d 1314 (La.1992), the dissent stated:

Even as to confessions, in furtherance of this principal of truthseeking, prosecutors may use otherwise inadmissible, incriminating statements to impeach the testimony of a defendant. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645-46, 28 L.Ed.2d 1 (1971).

In the present case, the affidavit is admissible for impeachment purposes.

Prejudice

Cooper also contends that he will be prejudiced if PBR is allowed to use the affidavit to impeach Ms. Pucciarelli because PBR used its claim of privilege to deny Cooper timely access to the affidavit. Cooper argues that he is prejudiced because he has been ambushed by the inconsistencies in Ms. Pucciarelli’s testimony, and it will cause him undue hardship. Cooper notes that had Ms. Pucciarelli “been given the affidavit prior to her perpetuation deposition, she | ¿would have had a fair opportunity to refresh her recollection, state that she did not review it carefully, or explain any inconsistencies prior to and during her testimony.”

PBR points out that it is not clear that the affidavit will be used until Ms. Pucciar-elli is called as a witness at trial. Only if she testifies contrary to her affidavit at trial, will the need arise to use the document to impeach her. Cooper has adequate time until the February 2008 trial date to depose Ms. Pucciarelli again if he feels that more information is needed from her. Cooper did not show that he has been prejudiced by the late disclosure of this affidavit.

Cooper failed to show that the trial court abused its discretion in denying the plaintiffs motion in limine.

Accordingly, the ruling of the trial court is affirmed.

WRIT GRANTED: RELIEF DENIED; AFFIRMED.

      . This case has been before this court several times in the past. Cooper v. Public Belt Railroad, unpub., 1999-C-3175 (La.App. 4 Cir. 4/12/00); Cooper v. Public Belt Railroad, unpub., 2000-C-0204 (La.App. 4 Cir.4/19/00); Cooper v. Public Belt Railroad, 2000-0378 (La.App. 4 Cir. 12/20/00), 776 So.2d 639; Cooper v. Public Belt Railroad, unpub., 2002-C-1555 c/w 2002-C-1556 (La.App. 4 Cir. 9/20/02).


author: LPATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Lionel YOUNG.
    No. 2002-KA-1280.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Harry F. Connick, District Attorney of Orleans Parish, Scott Peebles, Assistant District Attorney of Orleans Parish, New Orleans, LA, for PlaintiffiAppellee.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   LPATRICIA RIVET MURRAY, Judge.

The defendant, Lionel Young, appeals his conviction and sentence for distribution of cocaine. His appointed counsel filed a brief assigning one error, and he filed a pro se brief assigning four additional errors. We amend his sentence to correct an error patent and otherwise affirm.

STATEMENT OF THE CASE

On February 10,1999, Lionel Young was charged by bill of information with possession and distribution of cocaine in violation of La. R.S. 14:967. On February 12, 1999, he was arraigned and pleaded not guilty. On May 5, 1999, a twelve-person jury found him guilty of distribution of cocaine, but acquitted him of the possession charge. On January 27, 2000, the trial court sentenced him to five years without the benefit of parole, probation or suspension of sentence. On that same date, the state filed a multiple bill. On March 31, 2000, following a hearing, the trial court adjudicated Mr. Young a second felony offender. On May 19, 2000, the trial court re-sentenced him to fifteen years “without benefit,” which was ^construed to mean without benefit of parole, probation or suspension of sentence. On November 29, 2001, this court granted Mr. Young’s writ application finding that he was entitled to appeal his conviction and sentence. On April 5, 2002, the trial court granted Mr. Young an out of time appeal. On August 30, 2002, this court denied Mr. Young’s motion for an extension of time to file his supplemental pro se brief. As noted, both Mr. Young and his appointed counsel filed briefs with this court.

STATEMENT OF THE FACTS

Mr. Young was arrested for distributing cocaine to an undercover police officer. The undercover buy was part of an ongoing narcotics operation called “Operation Triek-or-Treat.” It was solely a buy operation with the bust (arrest) to follow at the end of the operation. This was a joint operation between the New Orleans Police Department (NOPD) and the Louisiana State Police that lasted about six weeks. The area in which the operation was conducted was one in which there was a high number of complaints of drug use and activity.

Simply stated, the operation involved three levels of police participation; to wit: undercover officers, a case handler, and a take-down team. The undercover officers’ role was to make the drug buy and to communicate the seller’s description and location to the take-down team. Because the undercover officers could not use the police radio, the case handler’s role included relaying the undercover officers’ description of the suspect over the police radio to the take-down team. To do so, the case handler was stationed nearby to monitor over an audio transmitter the officers’ conversations with potential suspects. The take-down team’s role was to enter the area, locate the suspect, and obtain information from the suspect to facilitate a subsequent arrest. Generally, it took about two to three |3minutes from the time the take-down team received the description until they arrived in the area and stopped the suspect.

On September 22, 1998, NOPD Officer Valdemetria McCollum and Louisiana State Police Officer Derrick Stewart were working as the undercover agents in this operation. Riding in an unmarked vehicle that was equipped with both an audio and video recorder and an audio transmitter and looking for potential street corner drug dealers, Officer McCollum spotted Mr. Young in the area of Chippewa and Josephine Streets. She testified that her attention was drawn to him because of certain gestures that he made which she construed as flagging her down.

When Officer McCollum stopped the vehicle, Mr. Young approached first on the passenger side, where Officer Stewart was seated. Because the passenger side door was always kept locked for the officers’ protection, Mr. Young was forced to walk to the driver’s side where Officer McCol-lum was seated and where the microphone and recording equipment apparently was located. As he walked over, Officer McCollum relayed a description of him over the audio transmitter. When he approached her, he inquired as to what she was looking for; she replied “a dime” — ten dollars worth of cocaine. He answered that he did not have dimes but that he could get her a twenty or a slab. She then agreed to buy a twenty — twenty dollars worth of cocaine. Following Mr. Young’s instructions, she circled the block while he went to get the drugs. When she returned, he flagged her down. The actual drug deal then took place; he handed her an off-white, rock-like substance, and she handed him two ten dollar bills. She then exited the area. While doing so, she gave a second description of Mr. Young over the audio transmitter.

According to Officer McCollum, Mr. Young was easy to identify based on his clothing because he had on a Michigan sports team cap, a dirty |4white t-shirt, black jean shorts, and unlaced tennis shoes without socks. She also stated that he had a gold tooth. Officer McCollum’s testimony regarding Mr. Young’s clothing description was corroborated by the testimony of both Detective Robert Ferrier, the case handler, and Detective Jeffrey Keating, a take-down team member. Indeed, Detective Keating testified that he readily located Mr. Young based on Officer McCollum’s clothing description.

Within minutes of the undercover officers’ departure from the area, Detective Keating and his partner moved in, located Mr. Young and conducted a field interview in order to obtain pertinent information to identify him for a later arrest. Upon locating Mr. Young, Detective Keating and his partner exited their police unit, identified themselves, approached him, and then obtained information from him. Their meeting with Mr. Young lasted about fifteen to twenty minutes.

Detective Keating detailed the following information that they obtained from Mr. Young: the location of stop (Josephine and Chippewa street), date (September 22, 1998), time (2:45 p.m.), suspect’s name (Lionel Young), address (2120 Annunciation Street), date of birth (August 1, 1952), scar (located on right arm), tattoo (left bicep), and other personal information (gold tooth with a star on it and missing a tooth). Detective Keating further testified that they recorded this information on a Field Identification Card (FIC). The purpose for recording all this information was to allow for the issuance of an arrest warrant at the end of the operation when a collective round up of the subjects was planned to take place.

Detective Keating further testified he did not arrest Mr. Young at that time because that was not part of the operation; instead, an arrest warrant was eventually issued about six weeks later. Although he did not search |sMr. Young, Detective Keating testified that he did do a weapons pat down. He found neither weapons nor drugs on Mr. Young, but he recalled finding twenty dollars in Mr. Young’s hands.

Both Detective Keating and Officer McCollum subsequently met separately with Detective Ferrier. At those meetings, Detective Ferrier obtained from Officer McCollum the off-white, rock-like substance and the videotape, and he obtained the FIC from Detective Keating. The officers involved in the operation also met at the station; based on the information the officers provided, they were able to produce a photograph of Mr. Young. Both Officer McCollum and Detective Keating positively identified that photograph as the suspect with whom they had just met. At that time, Detective McCollum also viewed the videotape and confirmed it was an accurate portrayal of the transaction she had just had with Mr. Young.

Detective Ferrier also testified regarding his participation in the ongoing operation as a case handler. He stated that he was stationed in a vehicle two to three blocks away from the undercover officers and that he was monitoring the audio transmission. As noted, he corroborated Officer McCollum’s testimony regarding the clothing description of Mr. Young that he relayed over the police radio to the take-down team. He further testified that his role as “case handler” also included preparing the arrest warrant and the police report. As noted, due to the ongoing nature of the undercover drug buy operation, the arrest warrant was not issued until about six weeks later.

The state introduced into evidence and played for the jury the videotape capturing the entire drug deal between Officer McCollum and Mr. Young. The state also introduced the testimony of Criminalist Harry O’Neal, a NOPD chemist, who the State and the defense stipulated was an [^expert in forensic chemistry. Mr. O’Neal testified that the off-white, rock-like substance Officer McCollum obtained from Mr. Young tested positive for cocaine.

DISCUSSION

ERROR PATENT AND COUNSELED ASSIGNMENT OF ERROR

A review of the record reveals an error patent in Mr. Young’s sentence that is also assigned as error by Mr. Young. In resentencing Mr. Young as a multiple offender, the trial court imposed a fifteen year sentence “without benefits,” which was construed to mean without benefit of parole eligibility for the entire fifteen years. Mr. Young argues that the habitual offender statute restricts probation and suspension of sentence only and that the trial court lacked the authority to limit his parole eligibility for his entire sentence. He thus seeks a remand for re-sentencing.

Agreeing in part with Mr. Young’s argument, the State asserts that when the trial court sentenced Mr. Young as a second felony offender the entire fifteen years should have been without benefit of probation or suspension of sentence, but only the first five years should have been without benefit of parole eligibility. The State is correct.

The multiple offender statute does not restrict parole eligibility; it restricts only probation and suspension of sentence. See La. R.S. 15:529.1(G)(provid-ing that “[a]ny sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sen-fence.”) Restrictions on parole eligibility must be based on the sentencing provision for the underlying conviction. See State v. Pittman, 95-382, p. 33 (La.App. 5 Cir. 10/1/96), 683 So.2d 748, 765 (citing State v. See, 467 So.2d 525 (La.1985)). In this case, the sentencing provision for the underlying conviction is La. R.S. 40:967(B) (4) (b), which provided for a five |7year restriction on parole at the time of the offense. The trial court erred insofar as it restricted Mr. Young’s parole ineligibility beyond the first five years of his sentence.

Pursuant to La.C.Cr.P. art. 882, an appellate court may correct an illegal sentence. We, therefore, amend Mr. Young’s sentence to provide that the entire fifteen years are without benefit of probation or suspension of sentence, but that only the first five years are without benefit of parole eligibility.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Mr. Young’s first assignment of error is the inadequacy of the trial transcript. He argues that the trial transcript is replete with inaudible statements, missing pages, and duplicate pages, hindering his ability to review the record for errors and hindering this court’s review of his assigned errors. Citing State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1234, he argues that he has a right to a complete transcript of the trial proceedings, partieu-larly where trial counsel is not appellate counsel.

La. Const. Art. I, § 19 guarantees all defendants a right to appeal “based upon a complete record of all evidence upon which the judgment is based.” Recently, in State v. Frank, 99-0553 (La.4/16/01), 803 So.2d 1, the Louisiana Supreme Court enunciated a three-part standard for reviewing | ^incomplete record claims. First, “[m]aterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal.” 99-0553 at pp. 20-21, 803 So.2d at 19-20. Second, “inconsequential omissions or slight inaccuracies do not require reversal.” Frank, supra. “Finally, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts.” Frank, supra (citing State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773).

Applying that standard to the instant case, we conclude that the trial transcript before us falls within the second Frank category of “inconsequential omissions or slight inaccuracies,” which do not require reversal but rather is adequate for appellate review. Although the trial transcript in this case is replete with inaudible references, it includes the testimony of the State’s six witnesses as well as the defense’s three witnesses. Although Mr. Young refers to two pages that are missing and two pages that are duplicated in the record that he was provided, the original record before this court includes those two missing pages and does not include any duplicate pages. Moreover, as summarized in the detailed recitation of the facts set forth above, this court was fully able to ascertain from the transcript the testimony presented at trial. Given the overwhelming |9evidence of Mr. Young’s guilt, including the videotape recording of the drug deal, the inaudible references in the trial transcript are inconsequential and do not warrant a reversal of his conviction.

In so finding, we note this case is analogous to State v. Harry, 2001-2336, pp. 3-5 (La.App. 4 Cir. 6/26/02), 823 So.2d 987, 991-92, in which we rejected a similar argument. In Harry, supra, we found that the trial transcript as a whole was coherent and understandable, noting it included a complete, coherent transcription of the trial with only short phrases, statements, series of words, or single words referenced as “inaudible.” The same is true in this case.

A second prong of Mr. Young’s inadequacy of the record argument is his assertion that we erred in denying his August 2002 request for an extension of time to file his supplemental appellate brief. He requested that we grant him an extension of time while he pursued a request in the trial court to obtain a transcript of the voir dire, opening and closing arguments, and the jury instructions. In denying his request, we stated that “the record already provided to the defendant-appellant to use in preparing a supplemental brief contains the objections made during voir dire and closing argument, and certificates from the court reporter that there were no objections during opening statements and the charge to the jury.”

In addressing this argument, we note that Mr. Young’s trial attorney failed to raise any objections during those portions of the proceedings. As a result, any alleged error occurring during those proceeding could not be reviewed on appeal because it was not preserved for appellate review. Nor do we find the lack of these non-evidentiary proceedings from the record sufficient to render it constitutionally inadequate. See State v. Goodbier, 367 So.2d 356, 357 (La.1979)(declining to reverse when record did not Iminclude transcript of voir dire examination and court reporter’s affidavit indicated that no objections were made by the attorneys during voir dire); see also State v. Simpson, 2001-1850, p. 14 (La.App. 4 Cir. 10/16/02), 829 So.2d 650, 660 (rejecting similar argument regarding unavailability of jury charges). For these reasons, we find Mr. Young’s arguments regarding the inadequacy of the record unpersuasive.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Mr. Young’s second assignment of error is that the in-court identification procedure was impermissibly suggestive and that the overall evidence of identification was insufficient to establish he was the person that committed the crime. In this regard, we find it significant to stress that the witness whose identification testimony Mr. Young contests was a police officer. Particularly, he challenges Officer McCol-lum’s testimony, noting that the prosecutor asked her leading questions and failed to ask her to make an in-court identification of Mr. Young until the end of direct examination.

The gist of Mr. Young’s argument is that this is a case in which identity is disputed and the state must therefore negate any reasonable probability of misiden-tification in order to satisfy its burden of establishing every element of the crime charged beyond a reasonable doubt. See State v. Coleman, 2002-0634, pp. 4-5 (La.App. 4 Cir. 10/23/02), 831 So.2d 375, 377-378. When, as here, the reliability of the defendant’s identification is In challenged a five-part test is utilized; to wit: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Id. (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

Examining Officer McCollum’s testimony in light of those factors, she had ample opportunity to view Mr. Young during the drug deal. Indeed, she testified that she got a good look at him.. Her attention was sharply focused on him because she had to verbalize a description of him to relay to the take-down team. She also testified that she was certain of her identity of Mr. Young based on the videotape and the photograph. Finally, she made the photographic identification of him at the station shortly after the crime. Officer McCollum’s testimony thus satisfies the five-factor test.

In an additional attempt to establish his claim of misidentification, Mr. Young placed great emphasis at trial and on appeal on a reference in the police report to someone named Anderson. Reading from the police report, Detective Ferrier testified at trial that the paragraph containing that reference states:

1 ^“Detectives located at the Second District station had checked Lionel Young’s name via the Motions computer and located State identification number and ran that number through the NOPD print track machine. Young’s State identification number, which was a picture, which was printed and viewed by an undercover detective. Detectives McCollum and Stewart positively identified this picture of Anderson as being the same person who sold them one piece of an off-white, rock-like substance.” (Emphasis supplied).

Responding to questions regarding that reference, Detective Ferrier repeatedly testified that this was simply a typographical error and that no one by that name was involved in the drug deal at issue. Detective Ferrier further explained that this was a typed report, that he apparently had typed over another similar report, and that he had simply neglected to change the name. The jury, therefore, was presented with a credibility call regarding that reference, which it apparently resolved in favor of the State.

In sum, we conclude that the testimony of Officer McCollum and Detectives Keat-ing and Ferrier coupled with the other evidence satisfied the State’s burden of negating any reasonable possibility of mis-identifieation and of proving beyond a reasonable doubt that Mr. Young committed the crime.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Mr. Young’s third assignment of error is that the trial court erred in charging the jury that it was to consider only the evidence presented at trial, without charging the jury that they may also consider the lack of evidence as well. The alleged charge that Mr. Young assigns as error was in reality the trial court’s explanation to the jury of the meaning of a stipulation. This occurred during the course of the trial when the State and defense counsel stipulated that Mr. O’Neal was an expert in the field of forensic chemistry. Following that stipulation, the trial judge gave the jury the following explanation of a stipulation:

| isCourt: Okay. Ladies and Gentlemen. A stipulation is one exception] to the rule that you will hear. You are to consider only the testimony and evidence that were permitted to be introduced during the trial. Now when state and defense counsel stipulate, that means that they agree upon a fact. Then there’s no further need for questions or any other elements or testimony on that fact. So you’ve heard the stipulation that Officer Harry O’Neal is an expert in this area.

Mr. Young attempts to equate the above explanation to an improper jury charge to the jury that it could not find reasonable doubt from the lack of evidence. Given this explanation by the trial court was clearly not a jury charge coupled with the fact that Mr. Young has failed to establish how this explanation could have prejudiced him, we find this argument clearly is not persuasive.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

Mr. Young’s final assignment of error is that he was denied a fair trial when a juror admitted to playing a board game and when the videotape of the drug deal was replayed for a class of school children present in the courtroom. Both these events occurred after the State had presented its case-in-chief and the jury was viewing the documents and evidence filed into the record by the state. At that point, the trial court asked the jurors whether it would be a distraction if, while they were looking at the evidence, the police officer played the videotape for the school children, and the jurors responded no. The trial court judge then questioned one of the jurors because the judge believed that juror was taking notes. The juror responded that she had not been taking notes, but playing a board game.

The record reflects that both of these events were handled by the trial court on the record as follows:

BY THE COURT:
|14[To the jurors] Has everyone had an opportunity to look at the exhibits? Ma’am, you’re not keeping notes? You can’t keep notes. You may have heard last—
BY THE JUROR:
I’m not. I was playing a board game. BY THE COURT:
In a civil court, they passed a law about a year and a half ago where the jurors can keep notes. But they did not pass that for criminal cases. We still have to rely on our memory and testimony that you heard.
Also, we asked you all if you would find that showing the tapes to the students would be a distraction, and we also instructed the officer to keep it down, and I didn’t hear anything. Did any of you all hear her explanation to the children?
BY THE JURORS:
No.

Given that the trial court appears to have appropriately addressed these matters on the record coupled with the lack of any contemporaneous objection by defense counsel, we find this argument unpersuasive. See La.C.Cr.P. art. 841 (providing that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence”).

DECREE

For the foregoing reasons, we affirm the conviction, amend the sentence to provide that the first five years are to be without parole eligibility, and affirm the sentence as amended.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

      . Given Mr. Young is the sole appellant and given that the jury acquitted him of the possession charge, the facts surrounding that charge, which was based on an unrelated seizure of a crack pipe on February 3, 1999, are not before us and are thus not addressed.

      . At the time of the offense, La. R.S. 40:967(B)(4)(b), provided:
      Distribution, dispensing, or possession with intent to produce, manufacture, distribute or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) or R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

        See State v. Mayeux, 2001-3195 (La.6/21/02), 820 So.2d 526 (noting well-settled general rule that the law in effect at the time of the commission of the offense is determinative of the penalty).

      . See La.C.Cr.P. art. 843 (requiring that in all felony cases the recording of "all the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements and arguments of counsel”); La. R.S. 13:961(C)(pro-viding that in criminal cases tried in district court the court reporter "shall record all portions of the proceedings required by law or the court.”)

      . See State v. Robinson, 387 So.2d 1143 (La.1980)(reversing given that testimony of a state and defense expert witness was missing); State v. Ford, 338 So.2d 107 (La.1976)(flnding omissions material given that substantial portions of the record were missing, including the testimony of four State witnesses, voir dire examination of prospective jurors, and the prosecutor's opening statements); see also State v. Bright, 2000-1255 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1117 (finding record inadequate given "[t]he cumulative effect of the missing portions of testimony of the defendant and other material witnesses, and the frequency of 'inaudible' and 'spelled phonetically' in the transcript"); State v. Diggs, 93-0324 (La.App. 4 Cir. 6/29/95), 657 So.2d 1104 (citing Ford, supra, and finding the unavailability of an officer's complete testimony necessitated a new trial since it could not be determined whether the missing testimony was substantial or inconsequential).

      . See State v. Goodbier, 367 So.2d 356, 357 (La.1979)(declining to reverse when record did not include transcript of voir dire examination and court reporter's affidavit indicated that no objections were made by the attorneys during voir dire); see also State v. Lyons, 597 So.2d 593 (La.App. 4th Cir.1992)(declining to reverse when record did not include some of the jury charges, transcript of voir dire, impaneling of jury or opening statement).

      . As Mr. Young contends, the duplicate copy of the record does indeed have two pages of the transcript missing and two pages duplicated.

      . It is well-settled that the standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is to consider the record as a whole and not just evidence most favorable to the prosecution; and if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988). Additionally, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id. The trier of fact's determination of credibility is not to be disturbed on appeal absent an abuse of discretion. State v. Cashen, 544 So.2d 1268 (La.App. 4 Cir.1989).
      When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Rather, this court when evaluating the evidence in the light most favorable to the prosecution, must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012. This is not a separate test from Jackson, but is instead an evidentiary guideline for the jury when considering circumstantial evidence, and this test facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984).
      La. R.S. 40:967 provides that it shall be unlawful for any person to knowingly or intentionally: produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance analogue classified in Schedule II. A defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipient. State v. McGee, 98-2116, p. 10 (La.App. 4 Cir. 2/23/00), 757 So.2d 50, 58. The state must show (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. Id.

      . We further note that defense counsel did not object to the in-court identification of the defendant by Officer McCollum, nor is there any indication that defense counsel filed a motion to suppress the identification. Therefore, the defendant has failed to preserve this issue for appellate review. La.C.Cr.P. art. 841 provides that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”


author: I PATRICIA RIVET MURRAY, Judge.

text:
    CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS v. The CITY OF NEW ORLEANS and The Civil Sheriff for the Parish of Orleans.
    No. 2002-CA-1236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Gilbert R. Buras, Jr., New Orleans, LA, for PlaintiffAppellant.
    Franz L. Zibilich, Chief Deputy City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee (City of New Orleans).
    Peter C. Rizzo, Paul R. Valteau, Jr., Civil Sheriff, New Orleans, LA, for Defendant/Appellee (Paul R. Valteau, Jr., Orleans Parish Civil Sheriff).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   I PATRICIA RIVET MURRAY, Judge.

This is an action for declaratory and injunctive relief. The Civil Service Commission of the City of New Orleans (the Commission) commenced this action against the City of New Orleans (the City) and the Office of the Civil Sheriff (Sheriff) seeking to enjoin them from operating under the terms of a Cooperative Endeavor Agreement (the Agreement) and seeking a declaration that the Agreement was invalid. The City and the Sheriff responded by filing various exceptions. From a judgment sustaining the exceptions and denying injunctive relief, the Commission appeals. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1995, the Sheriffs deputies have provided security services at various public buildings in the City of New Orleans under yearly contractual agreements with the City. The security services provided by the Sheriffs deputies, who are unclassified employees, are the same as those provided by the City’s Ground Patrol Officers (GPO), who are classified employees.

In late 1995, the GPO lodged a complaint with the Commission regarding, among other things, the City depriving them of overtime opportunities by using the Sheriffs deputies to discharge duties assigned to them. The GPO also complained|gthat while the City apparently had placed a freeze on hiring new classified employees for GPO positions, the Sheriff was hiring additional deputies to work in City buildings performing the duties of the GPO. Responding to the complaint, the City indicated that the Sheriffs deputies were merely “complementing] the City’s Classified Employees for building security” and that “[a]ctive recruitment for the City’s staff has been continuous.”

At its regular meeting on November 30, 1995, the Commission addressed the GPO’s complaint and considered a proposed interagency agreement between the Sheriff and the City. Disapproving by unanimous vote the interagency agreement, the Commission stated that the agreement and its purported statutory foundation could not supersede the Commission’s exclusive jurisdiction under the state constitution to make a determination on the continuing status of classified service positions.

By letter dated October 9, 1996, the Commission notified the City’s Department of Property Management that it had “formally disapproved the Cooperative Endeavor Agreement to provide building security and that the duties described in that agreement fall within the classified service.” The letter further warned that any party making payment of public funds for such services would be considered in violation of La. R.S. 33:2421 and personally liable for reimbursing all such sums.

In September 2000, the Commission sent a public records request to the City’s Department of Property Management seeking production of any contract or agreement between the City and the Sheriff purporting to provide ground patrol or other security-like services together with a statement of the rates of pay and benefits for those Sheriff employees.

lain October 2000, the City responded by producing a Cooperative Endeavor Agreement dated December 10, 1999, between the City and the Sheriff for the calendar year 2000. The Agreement confers upon the Sheriff the authority to provide deputies to the City, through the Grounds Patrol Division of the Department of Property Management, to assist in providing security to protect the City’s public buildings. The Agreement also grants the Sheriffs deputies the .same powers given the City’s GPO. The City also produced two monthly invoices (August and September 2000), reflecting that thirty-six Sheriff deputies were used in both months to provide GPO duties.

In July 2001, the Commission commenced this action for declaratory and in-junctive relief against the City and the Sheriff. In its petition, the Commission alleges that the Cooperative Endeavor Agreement between the City and the Sheriff or any other agreement is a “legally impermissible circumvention of the civil service system.” The petition further alleges that the City, through its Department of Property Management, has ignored the Commission’s 1995 disapproval of the Cooperative Endeavor Agreement and its 1996 notification and has continued to operate under the terms of the Cooperative Endeavor Agreement first proposed and disapproved in 1995.

Both the City and the Sheriff responded to the Commission’s action with exceptions. The City filed an exception of no cause of action, claiming that the Commission’s rule requiring approval of the contract is constitutionally infirm because it violates the City’s Home Rule powers. The Sheriff filed exceptions of no cause of action and no right of action.

| .¡Following a hearing on July 20, 2001 on the exceptions and the Commission’s petition for injunctive relief, the trial court found in favor of the City and the Sheriff, denying the Commission’s request for in-junctive relief and granting the Sheriffs exception of no right of action and the exception of no cause of action filed by both the Sheriff and the City. This appeal by the Commission follows.

DISCUSSION

The Commission asserts that the trial court erred in two respects: sustaining the exceptions of no cause of action and failing to grant injunctive relief. An exception of no cause of action tests whether the remedy the plaintiff seeks under the facts alleged in the petition is valid. As the Louisiana Supreme Court has noted, “[a]n exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief.” City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 10 (La.3/2/99), 739 So.2d 748, 756 (Emphasis supplied). This is not such an unusual case.

The City’s exception of no cause of action was based primarily on the alleged invalidity of the Commission’s rule requiring approval of contracts for professional and personal services set forth in Rule III, §§ 6.1-6.3. The ^constitutional challenge the City raises to the Commission’s rule— 1.e., that it violates the City’s broad Home Rule powers — is the same challenge it unsuccessfully raised in Civil Service Commission of City of New Orleans v. City of New Orleans, 2001-0635 (La.App. 4 Cir. 4/10/02), 826 So.2d 23, writ granted, 2002-1812 c/w 1815 (La.11/1/02), 828 So.2d 581. Affirming the trial court’s rejection of that constitutional challenge, we held that those rules “are clearly and unequivocally within the scope of the Commission’s constitutional and Chartered authority and serve to achieve the goals and objective of the merit system of public employment.” 2001-0635 at pp. 12-13, 826 So.2d at 30. We further reasoned that “[t]he rules protect these classified employees from an administration that would use [such contracts] ... as a means of eliminating civil service protection of the employees and defeating the objectives of providing for selection, hiring, promotion and demotion on the basis of merit.” 2001-0635 at p. 11, 826 So.2d at 30.

Contrary to the City’s contention, our prior decision is not distinguishable. Simply because this case involves an agreement between two governmental entities and Civil Service Commission involved a privatization agreement between the City and a private entity is a distinction without a difference. Although the Louisiana Supreme Court has granted certiorari to review our holding in Civil Service Commission, we are nonetheless bound by that decision unless and until it is overruled.

1 fiGiven the Agreement at issue was never approved by the Commission and the Commission disapproved a prior agreement, we find merit to the Commission’s contention that the Agreement is in violation of its rule and that it is entitled to injunctive relief. In arguing to the contrary, the City contends the Agreement is not subject to the Commission’s rule for three reasons: (1) it is a Cooperative Endeavor Agreement as authorized by La. Const. Art. VII, § 14(C); (2) it is neither a professional service, nor a personal service contract; and (S) its enactment did not displace any civil service employees. We find none of these arguments persuasive.

First, the City’s reliance on the characterization of the Agreement as a Cooperative Endeavor Agreement authorized by La. Const. Art. VII, § 14(C) to remove it from the Commission’s rules is misplaced. Section 14(C) is located in the provision of the state constitution that regulates the donation, loan, or pledge of public credit. The general rule against donating public property is set forth in Section 14(A), which provides:

Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision, shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.

Various exceptions, which are not at issue in this case, are enumerated in Section 14(B). Section 14(C), which the City relies upon, defines and authorizes cooperative endeavors, providing:

Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.

|7Tracing the history of Section 14 of the current constitution, a commentator notes that this type of provision was adopted in response to the substantial corruption that resulted from provisions in the 1868 Constitution that allowed the state to invest in certain corporations constructing internal improvements, especially railroads. Lee Hargrave, The Louisiana State Constitution, A Reference Guide 131 (1991). Subsequent constitutions thus included this type of provision to “limit the power of the state to use its funds or credit for the benefit of private development.” Id. Although the jurisprudence construing Section 14 and its 1921 counterpart is scant, “[t]he cases that do exist hold primarily that this section is violated whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so.” City of Port Allen, Louisiana v. Louisiana Municipal Risk Management Agency, Inc., 439 So.2d 399, 401 (La.1983).

Section 14(C) had no counterpart in the prior constitution; “it ‘liberalizes’ the rule of Section 14(A) which ‘if strictly construed would prevent much of what a modern state is expected to do for its citizens.’ ” City of Shreveport v. Chanse Gas Corp., 34,958, 34,959, p. 18 (La.App. 2 Cir. 8/22/01), 794 So.2d 962, 975 (quoting Lee Hargrave, The Work of the Louisiana Appellate Courts for the 1975-1976 Term: Constitutional Law, 37 La. L.Rev. 480, 486 (1977)). Translated, Section 14(C) means that “even if political subdivisions cooperate for a public purpose, they still may not give away their assets to other political subdivisions, the United States government or public or private associations or corporations, or to individuals merely for a ‘public purpose.’ ” City of Port Allen, 439 So.2d at 402.

| ¡¡Read in context, Section 14(C) does not authorize political subdivisions to engage in an otherwise legally invalid agreement merely by labeling it a Cooperative Endeavor Agreement. Rather, Section 14(C) presupposes the existence of an underlying legal obligation to transfer public funds, such as a lawful contract. It follows then that, contrary to the City’s contention, characterizing the Agreement as a Cooperative Endeavor Agreement does not remove it from the Commission’s rule.

Second, the City’s argument that the Agreement does not involve a professional or personal service contract but rather a security services contract is merely a semantics argument. See Civil Service Commission, 2001-0635 at p. 13, 826 So.2d at 31 (rejecting a similar semantics argument regarding the term “privatize.”) Regardless, this argument is undermined by a consideration of the purpose for the Commission’s rule. The rule is intended to preclude such contracts from providing for performance of services that could and should be provided by civil service employees. See Jack A. Parker & Associates, Inc. v. State Through Dep’t of Civil Service, 454 So.2d 162, 166 (La.App. 1 Cir. 1984). The security services provided for in the Agreement at issue are personal services included in the duties of a classified service position (the GPO). The Agreement thus involves the precise type of services that the rule is designed to cover.

Third, the City’s argument that the rule should not apply because no civil service employees were displaced as a result of the enactment of the Agreement is a policy argument. The fundamental flaw in this argument is that it overlooks | ^reality; specifically, the City has opted to replace its former classified GPO employees with unclassified Sheriff deputies. As the City acknowledges in its brief to this court, the current number of GPO positions filled is down to nine due to attrition. The City’s actions in this case are the very actions the rule is designed to safeguard against; namely, “governmental agencies ... in time granting] public service contracts for all work currently performed by classified employees and in effect abolish[ing] the classified service.” Jack A. Parker & Associates, 454 So.2d at 166.

Because the Agreement at issue is in violation of the Commission’s rule, the trial court erred in failing to find the Commission entitled to injunctive relief. The Sheriff, however, argues that even assuming the Agreement is unlawful, injunctive relief is nonetheless precluded due to the Commission’s lengthy delay in seeking declaratory or injunctive relief. The Sheriff further argues that the Commission had ongoing, daily notice of the presence of his deputies in the City’s buildings and that it would be an extreme injustice to nullify the Agreement at this late date. The Sheriff still further argues that the delay resulted in a ratification and a tacit approval of the Agreement and that the Commission is therefore equitably es-topped from seeking such relief. We disagree.

Resort to equitable considerations and estoppel is not permitted “when in conflict with positive written law.” Morris v. Friedman, 94-2808, p. 10 (La.11/27/95), 663 So.2d 19, 26 (quoting Palermo Land Co. v. Planning Comm’n of Calcasieu Par ish, 561 So.2d 482, 488 (La.1990)). Valid Commission rules have the force and effect of law. La. Const, art. X, § 10(A)(4); Bannister v. Department of Streets, 95-0404, p. 5 (La.1/16/96), 666 So.2d 641, 647; Paul v. New Orleans Police Dep’t, 96-1441, p. 6, 687 So.2d at 592. The Agreement is in violation of the Commission’s rule; therefore, equitable estoppel does not apply.

Although we conclude that the Commission is entitled to injunctive relief, we nonetheless recognize the pragmatic problems that would result if we ordered that the Sheriff deputies who have been providing security services at City buildings for several years could no longer do so. Moreover, we recognize that the trial court decided this case on exceptions and never tried the issues. For those reasons, we determine that the appropriate remedy is to remand for the trial court to consider the parties’ practical concerns.

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the exception of no cause of action and denying the request for injunctive relief is reversed and the matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. Costs of this proceeding are assessed against the City.

REVERSED AND REMANDED.

      . As the Sheriff aptly points out in his brief, the reference to the Cooperative Endeavor Agreement as a single agreement between the City and the Sheriff is technically inaccurate. Rather, there have been multiple, consecutive yearly agreements between them from 1995 until the present.

      . Although the Sheriff filed an exception of no right of action and although he continues to argue the merits of that exception on appeal, the Commission does not assign the sustaining of that exception as error on appeal. We thus do not address it.

      . Particularly, Rule III, § 6.1 provides:
      All contracts for personal or professional services, and amendments thereto, shall be reviewed and approved by the Director well in advance of their effective dates to insure compliance with the Civil Service Law and to determine whether such services should be provided within the classified service. Such contracts shall become effective only when approved by the Director. When so approved, they may thereafter continue for a period not to exceed one (1) year from the effective date of the contract.
      The other sections of the rule and the applicable Louisiana Constitution provisions are set forth in our decision in Civil Service Commission of City of New Orleans v. City of New Orleans, 2001-0635 (La.App. 4 Cir. 4/10/02), 826 So.2d 23, writ granted, 2002-1812 c/w 1815 (La.11/1/02), 828 So.2d 581.

      .In 2000, the Commission asserted a claim identical to that asserted in this case by amended petition as part of its action against the City challenging a privatization agreement with another private entity in Civil Service Commission, supra. According to the parties, the trial court in that related case dismissed this claim on an exception of improper cumu-lation. The Commission then filed this separate, stand-alone action. Meanwhile, this court in the related action rendered its decision affirming the trial court, and the Louisiana Supreme Court granted certiorari.

      . See La. Atty. Gen. Op. No. 01-136, cited by the Commission, which opines that a prerequisite for a valid Cooperative Endeavor Agreement is "the presence of a legal obligation or duty by the transferor to alienate said funds or property” and that this prerequisite is satisfied "by the presence of a valid statute, ordinance, charter or contract.” Id.

      . For the same reason, it was not necessary that irreparable harm be shown in this case. It is well-settled that a showing of irreparable harm is only required when the conduct sought to be enjoined is lawful; "when the conduct is illegal, a showing of irreparable injury is not required.” Ouachita Parish Police Jury v. American Waste and Pollution Control Co., 606 So.2d 1341, 1350 (La.App. 2 Cir. 10/14/92)(collecting cases).


author: 11 DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Donald STEVENSON.
    No. 2002-KA-1152.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Brad Parker, Tulane Law School, Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendani/Appel-lant.
    Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY.
   11 DAVID S. GORBATY, Judge.

On June 5,1996, defendants Donald Stevenson, Caroline Jefferson, and Patrick Stevenson were charged by bill of information with illegal possession of stolen things in violation of La. R.S. 14:69. Defendant Stevenson entered a plea of not guilty at his arraignment on July 1, 1996. Discovery and suppression motions were filed by Stevenson and the other defendants. On July 9, 1996, following a hearing, the trial court found probable cause and denied Stevenson’s motion to suppress evidence. Prior to trial, the bill of information was amended to charge the defendants with unauthorized use of a motor vehicle. On November 20, 1996, after a two-day jury trial Donald Stevenson and Caroline Jefferson were found guilty as charged. Co-defendant Patrick Stevenson was acquitted.

Stevenson’s motion for new trial was denied on May 22, 1997. On July 11, 1997, the trial court sentenced Stevenson to eight years in the custody of the Department of Corrections, with credit for time served. No motion for appeal was filed. Stevenson sought review by application for post-conviction relief and on November 16, 2001, the Louisiana Supreme Court ordered the district court to grant Stevenson an out-of-time appeal. State ex rel. Stevenson v. State, 2000-2776 (La.11/16/01), 801 So.2d 1069.

\ .FACTS

The facts were reported by this court in State v. Jefferson, pp. 2-4, 97-2949 (La.App. 4 Cir. 4/21/99), 735 So.2d 769, 770-772, as follows:

After midnight on April 25, 1996, Sergeant David Klegin observed a vehicle going southbound in the Jesuit Bend area of Plaquemines Parish. The vehicle, a white Nissan Altima, had a Tennessee license plate. As the officer passed the vehicle, the vehicle slowed down. The officer slowed down from fifty-five miles per hour to thirty-five miles per hour. The white vehicle never passed him. The officer then pulled off the road. When the vehicle passed the officer, the officer got behind the vehicle and checked the vehicle’s license plate through the police dispatcher. The officer learned that the vehicle was stolen. Sergeant Klegin requested assistance and state troopers, who were in the area, stopped the white vehicle. There were three occupants in the vehicle: Donald Stevenson was the driver; Caroline Jefferson was in the front passenger seat; and Patrick Stevenson was in the back seat. A rental agreement was found in the glove compartment. However, none of the occupants’ names was on the rental agreement or any of the documentation found in the vehicle.
The three subjects were arrested and the vehicle was impounded. Sergeant Klegin spoke with defendant Jefferson at the lockup to determine the ownership of the vehicle. Jefferson told him that she did not own the vehicle. She told the officer that she borrowed the vehicle from a woman who lived in New Orleans East. Jefferson only knew the woman’s first name but not her last name, address or telephone number. Sergeant Klegin testified that the vehicle’s steering wheel was not defeated, and the occupants had the vehicle’s ignition key.
State Trooper Byron Sims testified that he and Trooper Robert Vittitoe were on routine patrol in Plaquemines Parish when they received a request for assistance from Sergeant Klegin. As the troopers passed Sergeant Klegin on Belle Chase Highway, Sergeant Klegin informed them that the vehicle in front of him had been reported stolen. The troopers initiated a traffic stop. They asked the driver of the vehicle to step out of the vehicle and produce his driver’s license and vehicle registration. The vehicle was a 1995 Nissan Altima with a Tennessee license plate. The driver produced his driver’s license but did not have a vehicle registration. The troopers ran the license plate number through the NCIC and learned that the vehicle was stolen. The driver and two passengers were arrested for possession of stolen property, and the vehicle was impounded.
| a John Hosty, regional security manager for Budget Rent-A-Car, was notified that the vehicle in question was recovered in Louisiana. He was told to contact the Plaquemines Parish Sheriffs Office to retrieve the vehicle. The vehicle had been leased to a Janet W. Naff on June 29, 1995 at the Nashville, Tennessee airport. The vehicle was to be returned on July 5, 1995. Budget Rent-A-Car reported the vehicle stolen on July 28, 1995, when the vehicle was not returned. The theft was reported to the Nashville Metro Police Department. When Hosty retrieved the vehicle, he observed that the vehicle was in good condition. The steering wheel was not defeated, and there were no broken windows.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the evidence was insufficient to support the verdict. In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). When the conviction is based on circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Langford, 483 So.2d 979 (La.1986).

The State had the burden to prove the elements of the crime of unauthorized use of a motor vehicle. La. R.S. 14:68.4 provides:

Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.

|4The Supreme Court has expressly construed unauthorized use of a movable as “requiring a showing of mens rea or criminal intent ...” State v. Bias, 400 So.2d 650 at 652-53 (La.1981).

In State In Interest of H.N, 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, three juvenile defendants were adjudicated delinquent on a charge of unauthorized use of a movable. The arresting officer had received a call of shots being fired from a red Mazda RX7 and, after observing the automobile, he gave chase. The pursuit ended when the car hit a curb and all four occupants fled on foot. The three juvenile defendants were apprehended but the driver escaped. When inspected, the car had no damage to the steering column, but the motor was running even though there was no key in the ignition.

The juveniles testified that when they entered the vehicle they saw nothing to indicate the car was stolen, and that they panicked and fled the vehicle after the driver told them to run because the car was stolen. This court reversed the convictions finding that there was no evidence that the defendants took or used the vehicle with the knowledge that it was stolen, saying:

Here the defendants denied knowing that the Mazda was stolen when they accepted the ride. There was no evidence of forced entry. There was no broken glass in the interior of the vehicle or damage to the steering column. There was a key in the ignition when the defendants entered the car. The defendants testified that they fled because they panicked.

Id. 97-0982, p. 4-5, 717 So.2d at 668. See also State in the Interest of O.B., 559 So.2d 31 (La.App. 4 Cir.1990), distinguished in State v. Jefferson, 735 So.2d at 773.

The present case presents an even stronger basis for reversal than in State In Interest of H.N., supra. Notably, there was no attempt to elude the police by fleeing, and Trooper Sims testified that the occupants cooperated with the 1..Investigation. Furthermore, there was nothing to indicate to an occupant that the car was stolen. Accordingly, the evidence failed to establish that the defendant took or used the vehicle with the knowledge that it was stolen.

The case can be distinguished from that of the co-defendant, Caroline Jefferson, whose conviction was previously affirmed. Jefferson was the person who “obtained the vehicle from an unknown person for her own personal use.” Her statement was that she borrowed the vehicle from a woman whose last name, address or telephone number she did not know. This court found that “(t)he trier of fact could conclude that such a story was suspicious and indicative of criminal knowledge and/or intent.” State v. Jefferson, p. 7, 97-2949 (La.App. 4 Cir. 4/21/99), 735 So.2d at 773. Here, by contrast, the state elicited no evidence that Stevenson was aware of the circumstances by which Jefferson obtained the car. We find that this argument has merit. As such, we need not address defendant’s remaining assignments of error.

CONCLUSION

Accordingly, for the foregoing reasons, the conviction and sentence are reversed.

REVERSED.