author: 1 JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Tenna J. BENOIT, Jr.
    No. 04-KA-436.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, LA, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Ralph C. Cox, III, James W. Adair, Trial Counsel, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and THOMAS F. DALEY.
   1 JAMES L. CANNELLA, Judge.

The Defendant, Tenna J. Benoit, appeals from his conviction of third offense driving while intoxicated (DWI). We affirm the conviction and remand.

On March 6, 2001, the Defendant was charged with third offense DWI, a violation of La.R.S. 14:98, R.S. 14:98 D. He pled not guilty at arraignment on April 3, 2001. On June 18, 2001, the trial judge denied his motion to suppress the evidence. The Defendant then filed a writ application with this Court from the denial of the motion to suppress the evidence. We granted the writ, reversed the conviction, and remanded. See: State v. Benoit, 01-810 (La.App. 5th Cir.8/21/01). The Louisiana Supreme Court reversed that ruling, reinstated the trial judge’s denial of the Defendant’s motion, and remanded the matter to the trial court for further proceedings. See: State v. Benoit, 01-2712 (La.5/14/02), 817 So.2d 11.

On February 24, 2003, the case was tried before a six-person jury which found the Defendant guilty as charged. The Defendant filed a motion for new trial which was denied on February 26, 2003. On April 23, 2003, the trial judge (^sentenced the Defendant to imprisonment at hard labor for three years and suspended all but thirty days. Next, the Defendant’s motion for appeal was granted.

According to Jefferson Parish Sheriffs Office Deputy Russell J. Blanchard, III, on October 12, 2000 he was stopped in the center lane for a red light at Ames Boulevard. While waiting for the light to change, he observed that the driver of a white Ford pickup truck in the right lane was not wearing his seatbelt. Deputy Blanchard motioned several times to the driver, later identified as the Defendant, to put on his seatbelt. The Defendant looked at the Deputy and waved, and then proceeded through the intersection when the light turned green.

Deputy Blanchard followed the vehicle. When he saw that the Defendant made no attempt to put on his seatbelt, he stopped the Defendant and instructed him to exit the vehicle. The Defendant slowly exited the vehicle. The deputy observed that the Defendant was unsteady on his feet and had to grab onto his truck because he lost his balance. When the deputy got near the Defendant, he detected the smell of alcohol on his breath. Also, he also noticed that the Defendant’s speech was slurred when he spoke.

Based on these observations, Deputy Blanchard asked the Defendant if he had been drinking any type of alcoholic beverage that night. The Defendant told him that he had just left a friend’s house where he had consumed approximately three 12-ounce beers. The deputy asked the Defendant to submit to three standardized field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one-leg stand test. The Defendant agreed. The deputy |4aIso asked the Defendant if he had any physical defects and the Defendant said only that he had asthma.

Deputy Blanchard first administered the HGN test, explaining that if a person was under the influence of alcohol or certain types of narcotics, the person’s eyes had a tendency to jerk involuntarily, and that there were six points of intoxication or impairment that he had been trained to observe in administering the test. The deputy testified that both of the Defendant’s eyes jerked and that all six criteria for intoxication were present.

Deputy Blanchard next conducted the walk and turn test, which consisted of requiring the person to put his left foot on a solid white line on the road, raise his right foot and put it in front of his left foot, touch his heel to his toe, all the time keeping his hands to his side. After nine steps, the subject of the test is told to take a small pivot step and go back the same way, counting as he moves. The deputy stated that the Defendant was unable to keep his stance, kept moving off the line, lost his balance while turning, used his arms for balance, could not keep his arms to his side, took eleven steps instead of nine after the pivot step, and did not touch heel to toe.

The third test administered by Deputy Blanchard was the one-leg stand, which he explained requires the subject to raise a leg approximately six to eight inches off the ground and to count out loud from 1001 up to 1030, while keeping his hands to his side. If the subject drops his foot at any time, he is instructed to start at the next highest number. The deputy testified that the Defendant was unable to count as he was instructed, that he hopped, used his arms for balance, and swayed before starting the test. At that point, the deputy placed the Defendant under arrest, advised him of his Miranda rights, secured his vehicle at his request, and transported him to the Jefferson Parish Correctional Center where he again | ¡¡advised the Defendant of his Miranda rights. He also advised the Defendant of his rights relating to chemical tests for intoxication and the penalties for refusing to submit to the test, and for taking the test and failing it. The Defendant refused to submit to the Intoxilyzer 5000 breath test.

Deputy Blanchard testified that he had received an award one year for outstanding performance on the night watch, and that he was told he wrote more DWIs tickets than anyone else in the unit.

Paula Benoit, the Defendant’s mother, testified that on October 12, 2000, the Defendant ate breakfast and then went to work at Buddy’s Auto Parts which was located near her house, approximately one mile away. Mrs. Benoit explained that the Defendant had to be at work for 8:00 a.m., so he left home at approximately 7:50 a.m. On that same date, the Defendant came home for lunch at approximately 11:45 a.m. She did not see the Defendant drink any alcoholic beverages either before 8:00 a.m. or at lunchtime.

At home that evening, the Defendant ate dinner at approximately 5:10 p.m., after he got off work. According to Mrs. Benoit, the Defendant did not have any alcoholic beverage to drink with dinner. He then left between 5:45 and 6:00 p.m. to visit his friend Landry “Tookie” Borne. She did not see the Defendant again that evening.

Terry Beasley (Beasley), testified that he was a mechanic and worked at Buddy’s Auto Repair, a business owned by his father and brother. Beasley explained that the Defendant worked for them as a mechanic and that, on the day in question, he and the Defendant started work at 8:00 a.m., broke for lunch at approximately noon, and the Defendant worked from approximately 1:00 p.m. to 5:00 p.m. Beasley did not see the Defendant consume any alcoholic beverages between 8:00 a.m. and 5:00 p.m. He later met the Defendant at 6:15 or 6:30 p.m. at a local daiquiri shop. When Beasley arrived at the daiquiri shop, the Defendant |fiand Borne were already there. The three men stayed for approximately an hour and a half until approximately 8:00 p.m. Beasley stated that when he arrived, the Defendant was drinking a beer. Beasley did not see the Defendant have any other drinks other than the beer. After the men left the daiquiri shop, Beasley drove to his house to drop off his car and joined the Defendant and Borne in the Defendant’s car. The Defendant was driving.

Next, the Defendant, Beasley and Borne went to Steve Plaisance’s (Plaisance) house where they stayed from approximately 8:00 to 10:00 p.m. Beasley did not see the Defendant drink anything there. Plai-sance then asked the Defendant to give him a ride to a bar, the Canal Bank Inn, to pick up his girlfriend. The Defendant and Plaisance left at approximately 10:00 p.m., and Beasley did not see the Defendant after that time. The testimony of Borne and Plaisance largely corroborated that of Beasley.

Additionally, Borne testified that he was the first one to arrive at the daiquiri shop, that he purchased one beer for the Defendant after the Defendant arrived, that he did not purchase any other beers for the Defendant, and that he did not see the Defendant buy any beers on his own or anyone else buy beer for him. Borne also explained that he spilled a beer on the middle of the seat in the Defendant’s truck between the time they left the daiquiri shop and the time they picked up Beasley from his house, and that the truck smelled of beer. However, Borne also stated that he fell asleep at Plaisance’s house for approximately twenty minutes and that the Defendant could have had more beer to drink during that time.

Plaisance did not see the Defendant consume any alcohol at his house. He explained that he and the Defendant left his house at approximately 10:00 p.m. to pick up his girlfriend at the Canal Bank Inn. The Defendant did not drink any beer on the way. When they arrived, the Defendant went inside the bar and came back out immediately with Plaisance’s girlfriend. According to Plaisanee, the 17Pefendant did not have time to have a drink in the bar because he was only in there for approximately one minute. Plai-sance then drove his girlfriend’s car home. He did not see the Defendant after he left the bar.

The State offered a stipulation that the Defendant was the same individual, who pled guilty to DWI in Second Parish Court on June 18,1998 and in First Parish Court on September 23, 1998. The Defendant agreed to the stipulation and the trial judge admitted State’s Exhibits 4 and 5, certified copies of the Defendant’s two DWI convictions. Then, the State introduced testimonial evidence relating to the stipulated offenses.

Louisiana State Trooper Daryl Thomas testified that, on July 20, 1997, he was dispatched to the scene of an accident involving injuries on U.S. 90 westbound at Lapalco Boulevard. Trooper Thomas arrested the Defendant on that date for DWI and for being involved in an accident in which he was at fault. He identified State’s Exhibit IB as the fingerprint card pertaining to that arrest. He testified that the Defendant submitted to a breath test and that the results were .216. Louisiana State Trooper Scotty Lewis testified that, on February 21, 1998, he arrested the Defendant for DWI. When he asked the Defendant to submit to a field sobriety test and a breath test, the Defendant refused, stating that his attorney told him not to submit to the test. Trooper Lewis identified State’s Exhibit 2B as the fingerprint card relating to that arrest.

On appeal, the Defendant asserts that the trial judge erred in denying his motion for new trial and that the evidence was insufficient to support the conviction.

SUFFICIENCY OF THE EVIDENCE

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the appellate court first determines the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55, citing State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Woodhead, 03-1036, p. 6 (La.App. 5th Cir.1/27/04), 866 So.2d 995, 999.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, pp. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, unit denied, 02-2200 (La.3/14/03), 839 So.2d 32. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Cazenave, 00-183, p. 14 (La.App. 5th Cir.10/31/00), 772 So.2d 854, 860, unit denied, 00-3297 (La.10/26/01), 799 So.2d 1151. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.; State v. Marcantel, 00-1629 at 9, 815 So.2d at 56.

In cases involving circumstantial evidence, La.R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court stated:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a the Defendant could afford an exculpatory explanation of the events.” ... Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt....

(Citations omitted; emphasis in the original).

| flThe Defendant argues that the evidence was legally insufficient to sustain the conviction for third offense DWI. He does not dispute that he was operating the vehicle or that he had two prior DWI convictions. Rather, he contends that the State failed to prove beyond a reasonable doubt that he was intoxicated, noting that the only evidence presented regarding this issue was Trooper Blanchard’s subjective interpretations of his performance on the field sobriety test. The Defendant points out that his driving was not impaired, that his behavior when he exited the vehicle could have been attributed to nervousness, that the alcoholic odor could have been attributed to the beer spilled in his truck, and that his family and friends did not see him drink more than one beer, even though they were with him during the entire day. He contends that the interpretation of the results of the field sobriety test could be explained by the fact that Trooper Blanchard was the DWI record holder in Jefferson Parish.

Intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La.1983). The behavioral manifestations sufficient to support a charge of DWI must be determined on a case-by-case basis. Some behavioral manifestations, independent of any scientific tests such as blood or breath alcohol tests, are sufficient to support a charge of DWI. State v. Berkeley, 00-1900, p. 6 (La.App. 5th Cir.5/31/01), 788 So.2d 647, 652, writ denied, 01-1659 (La.4/26/02), 814 So.2d 549. The observations of an arresting officer may be sufficient to establish guilt. Allen, 440 So.2d at 1334.

The Defendant introduced evidence to show that Deputy Blanchard was mistaken in his subjective observations of him during the field sobriety test, that there was no breath test, that none of the Defendant’s family or friends saw the Defendant drink more than one beer that day, and that the alcoholic odor came from the spilled beer in the Defendant’s truck and not from the Defendant’s breath. ImHowever, the jury chose to believe that he was intoxicated based on the deputy’s observations of the Defendant’s appearance, the alcoholic odor emanating from him, and the Defendant’s failure to perform the various field tests successfully.

The jury made credibility determinations and this Court cannot assess credibility nor reweigh the evidence on appeal. Cazenave, 00-183 at p. 14, 772 So.2d at 860; Marcantel, 00-1629 at p. 9, 815 So.2d at 56. After viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the' essential elements of the crime beyond a reasonable doubt, and could exclude the hypothesis that the Defendant was not intoxicated. Thus, we find that the evidence was sufficient to convict the Defendant of DWI.

DENIAL OF MOTION FOR NEW TRIAL

The Defendant next asserts that the trial judge erred in denying his motion for new trial and for mistrial. He contends that the trial judge erred in allowing the State to introduce testimony by two State Troopers who related details of the two prior DWI convictions. The Defendant argues that the parties stipulated that the Defendant had two prior DWI convictions and that the introduction of the details of those convictions was irrelevant and prejudicial. He asserts that, because the evidence was insufficient to support the conviction, the conviction could only be attributed to the erroneous admission of the evidence in question.

LSA-C.Cr.P. art. 851(2) provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error[.]

|nThe ruling on a motion for new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion. State v. Badeaux, 01-618, p. 6 (La.App. 5th Cir.11/27/01), 802 So.2d 905, 908, writ denied, 01-3403 (La.10/4/02), 826 So.2d 1121.

Defendant argues that his motion for mistrial should have been granted pursuant to La.C.Cr.P. art. 771, which reads as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a dramatic remedy and, except in instances in which the mistrial is mandatory, a mistrial is warranted only when the trial error results in substantial prejudice to the defendant, depriving him of a fair trial. State v. Eskano, 00-101, p. 14 (La.App. 5th Cir.1/30/01), 779 So.2d 148, 155.

In this case, on the morning of trial, the State offered a stipulation to the defense that the Defendant was the same individual who pled guilty to DWI in Second Parish Court on June 18, 1998 and in First Parish Court on September 23, 1998. The Defendant accepted this stipulation. However, the State proceeded to call Trooper Thomas to testify regarding the first of the Defendant’s two prior |]2PWI convictions. The Defendant objected on the basis that two prior DWIs were stipulated to by the parties and that the evidence was more prejudicial than probative and almost tantamount to Priewr evidence. The Defendant objected to any testimony as to those convictions and to the documents that he anticipated the State would use.

The State responded that, even though it had accepted the stipulation, it could still call witnesses regarding the prior DWI convictions. The State argued that with the stipulation, it would not need to call a fingerprint expert to print the Defendant in court and then to render his expert opinion that the Defendant was the same person who had been previously convicted. It indicated that this was not a Prieur situation, because an element of third offense DWI was that the Defendant had two prior DWI convictions. The State also told the trial court that it was not planning to ask either officer any details about the offenses.

The trial judge overruled the objection with respect to the witnesses. He stated that the Defendant could not stipulate to an element of the crime. He sustained the objection with respect to photographs of the Defendant relating to the prior convictions.

On the stand, Trooper Thomas testified to the first DWI, stating that he was dispatched to the scene of an accident involving injuries. The Defendant objected on the basis that he had already stipulated to the conviction, and that the officer was getting into facts. The trial judge overruled the objection. The Trooper also stated he asked the Defendant to submit to some field sobriety tests. The Defendant objected, stating that the trooper was testifying to fact details about the prior case. The State responded that the testimony was relevant, because the Defendant could argue that he pled guilty to that DWI eharge, but did not have a ^reason to enter the plea. The trial judge sustained the objection. The Defendant then moved for a mistrial “because of the reference to criminal elements” which was denied. The State then asked the trooper the results of the breath test, which was .216. The trial judge overruled the Defendant’s objection to the question.

The State next called Trooper Lewis as a witness. When the State asked the witness whether he had asked the Defendant to submit to a breath test, defense counsel objected, and the trial court overruled it. The trooper stated that the Defendant refused the test, claiming that his attorney told him to refuse it. The Defendant argued that this testimony unfairly inferred that he did not take the test because he was drunk.

In connection with the stipulation, the trial court admitted certified copies of the Defendant’s two DWI convictions, without objection.

At the hearing for the new trial, the Defendant argued that, if the State wanted to show pattern, motive, intent, or habit, it was required to file a Prieur motion. Otherwise, there was no rational basis for the testimony, but to “tarnish him in front of the jury.”

The State responded that the stipulation did not preclude it from introducing evidence of the two prior convictions. It argued that the officers did not go into great detail regarding the two prior convictions and that the details regarding the prior breath test was pertinent because, during opening statement, the defense pointed out that in this case, the State did not have a breath test. The State maintained that a Prieur hearing was not necessary because the two prior convictions were elements of the offense.

The trial judge agreed with the State and denied the Defendant’s motion for a new trial. The trial judge noted that he did not allow the State to go into much detail regarding the two previous DWIs, and that at least once, he had sustained one of the Defendant’s objections. The trial judge said that he felt that the extent [14to which the State attempted to show a few details of the prior convictions was relevant because of the defense that it anticipated.

In State v. Taylor, 01-1638, p. 16 (La.1/14/03), 838 So.2d 729, 744-745, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the Louisiana Supreme Court discussed the law regarding stipulations in pertinent part (footnote added):

Moreover, defendant cannot control the state’s method of proof. In a criminal prosecution, the state has the burden of proving each element of the crime beyond a reasonable doubt. A defendant may not exclude from the jury’s consideration relevant evidence concerning a crime merely by offering to stipulate. Old Chief, [] 519 U.S. at 186-87, 117 S.Ct. at 653 (A “familiar standard rule” in the criminal law is that “the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.”)....

The Louisiana Supreme Court has held that “ ‘[t]he State cannot be robbed of the moral force of its case merely because the stipulation is offered.’ ” State v. Ball, 99-428, p. 10 (La.ll/30/99), 756 So.2d 275, 280 (quoting State v. Watson, 449 So.2d 1321, 1326 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985) (citing State v. Harvey, 358 So.2d 1224 (La.1978))). In Taylor, the issue involved the defense’s stipulation to second degree murder in a first degree murder prosecution. In Ball, the defendant was charged with possession of a firearm by a convicted felon. There the court allowed the evidence of the specific prior felony, stating: “Proof of a prior specifically enumerated felony conviction is an essential element under La. R.S. 14:95.1.” Ball, 99-428 at 10, 756 So.2d at 281.

All relevant evidence is admissible, except where limited by law. La.C.E. art. 402. Relevant evidence is evidence that has any tendency to make the 1^existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. La.C.E. art. 401. Although relevant, evidence may nonetheless be excluded, if the probative value is substantially outweighed by its prejudicial effect. La.C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230, p. 11 (La.App. 5th Cir.2/25/03), 841 So.2d 977, 985, unit denied, 03-853 (La.10/3/03), 855 So.2d 308.

We have not found cases considering this issue in the context of multiple DWI convictions. However, an essential element of the crime of DWI, third offense, is that the Defendant has two prior convictions for driving while intoxicated. Although the cases are not specifically on point, the analyses of Taylor and Ball are pertinent in this case. The State cannot be deprived of its right to prove its case by its chosen evidence by a stipulation by the Defendant. Thus, we find that the admission of the testimony of the two troopers involved in the prior arrests for DWI, to prove that the Defendant was convicted of the prior DWIs, was not error, or was the evidence relating to the Defendant’s refusal to take the breath test. However, the testimony by Trooper Thomas that he was called to the scene of an accident with injury, does not go to the fact of whether the Defendant was guilty of DWI. It should not have been said. The statement had no relevance to the question of whether the Defendant was guilty of DWI in that accident and may have had prejudicial effect. Thus, it should not have been allowed into evidence. Our next question is whether such statement is harmless or not. An error is harmless when the guilty verdict actually rendered was surely unattributable to the error. State v. Johnson, 94-1379, p. 18 (La.11/27/95), 664 So.2d 94, 102. Under the facts of this case, we further find that the statement was harmless. As we have already determined, viewing the evidence under the Jackson |1(istandard, the evidence was sufficient to convict the Defendant of the crime charged.

The Defendant also argues that the admission of the evidence of the two prior convictions had the prejudicial effect of confusing the jury. The record reflects that the trial judge received a question from the jury which said, “Are we dealing with the 2000 case [or] all three?” To resolve the issue, the State and the Defendant agreed that the trial judge would tell the jury that they were determining the guilt or innocence of the Defendant in the 2000 case, and that the trial judge would reread the bill of information to them. The trial judge then told the jury that it was to determine the guilt or innocence of the Defendant in the 2000 case and reread the bill, as was agreed upon by all counsel. Additionally, the record reflects that the trial judge gave a limiting instruction to the jury, telling them that the prior convictions were alleged solely to enhance the penalty. In light of the foregoing, we find that the resolution of this jury inquiry, which was agreed upon by the State and the Defendant, was reasonable and not prejudicial to the Defendant.

The Defendant next contends that the trial court erred by admitting the fingerprint cards from the prior convictions. However, the admission of this evidence could not have prejudiced the Defendant since he stipulated to the prior convictions. Therefore, this issue lacks merit.

The Defendant also asserts that the State made an improper comment during its closing argument when it stated that the Defendant refused to take the breath test in the current case, as he did in his 1998 arrest. The Defendant argues that the State made another improper comment during its rebuttal argument when it mentioned that the Defendant refused to take the breath test again, after the breath test in 1997 resulted in a reading of .216.

The record reveals that the Defendant did not object to any portion of the State’s closing argument and thus did not preserve the issue of any improper 117argument contained in it for appellate review. La.C.Cr.P. art. 841; State v. Bridgewater, 00-1529, p. 27 (La.1/15/02), 823 So.2d 877, 900. Our next question is whether the statements were of such a nature to be error, whether they are harmless or not. Even if the State made improper comments during closing argument, the error was harmless. The trial judge instructed the jury that statements and arguments made by the attorneys were not evidence. Accordingly, we find that the trial judge did not err in denying the Defendant’s motion for new trial or mistrial.

ERROR PATENT

The record was reviewed for patent errors, in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. The review reveals errors in this case.

The transcript indicates that the trial judge’s clerk told “Chris” that he needed to fill out the home incarceration form, presumably to provide the Defendant with notice of the conditions. However, if one were filled out, it is not in the record. Without any evidence in the record indicating that the Defendant was notified of the conditions as required by La. R.S. 14:98 D(3)(a), we cannot presume that he was so notified. Thus, we remand the case with instructions to the trial judge to notify the Defendant of the specific conditions of home incarceration, as provided in La.R.S. 14:98 D(3)(a), and to file written proof of the notification in the record, within 10 days of the rendition of this opinion.

Next, the commitment indicates that the trial judge advised the Defendant of the two-year prescriptive period for filing an application for post-conviction relief, pursuant to La.C.Cr.P. art. 930.8. However, the transcript shows that the trial judge did not so advise the Defendant. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d, 732, 734 (La.1983). Thus, we will remand the case with instructions to the trial judge to inform the Defendant of the two-year prescriptive period by sending written notice to the Defendant within ten days after the rendition of this opinion and to file written proof in the record that the Defendant received such notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, the Defendant’s conviction and sentence are hereby affirmed. The case is remanded with instructions to the trial judge to inform the Defendant of the conditions of home incarceration and of the two-year prescriptive period by sending written notice to the Defendant within ten days after the rendition of this opinion and to file written proof in the record that the Defendant received the notices.

CONVICTION AND SENTENCE AFFIRMED; REMANDED.

      . The trial judge also ordered the Defendant to:
      (1) undergo a substance abuse evaluation and in-patient treatment program for four to six weeks;
      (2) serve the remainder of the three-year sentence on home incarceration once he had completed the treatment program and his thirty days;
      (3) complete and fully participate in a driver improvement program;
      (4) pay a fine of $2,000 to be paid within six months of his release from home incarceration, his thirty days, and the four to six week in-patient treatment program. The trial court initially ordered the Defendant’s vehicle to be seized, unless there was an exception in the law that applied. When it learned that the Defendant's parents were the lien holders for the full amount of the vehicle, the trial judge stated that he would not order the vehicle to be seized.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . Although the State indicated that it had accepted the stipulation, as was stated previously, it was in fact the State who offered the stipulation and the Defendant who accepted it.

      . Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In Old Chief, the crime charged was a convicted felon in possession of a firearm. The Court found there that the state could not specify the felony, based on federal law. The Louisiana Supreme Court in Ball distinguished the case and declined to follow Old Chief.


source: Caselaw Access Project

author: J^EDWIN A. LOMBARD, Judge. 1T CANNIZZARO, J.,

license: Public Domain

text:
    Jonathan CARROLL v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2004-CA-0122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.

      Rita K. Akehurst II, Mark E. Morice, the Morice Law Firm, Gretna, LA, for Plaintiff/Appellant.
    Deborah Henson, Assistant City Attorney, Victor L. Papai, II, Assistant City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney, Sherry S. Landry, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   J^EDWIN A. LOMBARD, Judge.

RELEVANT FACTS AND PROCEDURAL HISTORY

Jonathan Carroll joined the New Orleans Police Department (“NOPD”) on October 29, 2000 under the rank Police Officer One. Carroll was terminated on September 20, 2001 based on a positive result for drugs from a urinalysis. This test was later shown to be a false positive.

Officer Carroll appealed his termination to the New Orleans Civil Service Commission (“CSC” or “Commission”), who found that he was a probationary employee and, thus, could not appeal his termination. Officer Carroll appealed that decision to this Court, which, on March 26, 2003 reversed the judgment of the Commission, and found that he was wrongfully terminated. Additionally, this Court ordered Officer Carroll to be reinstated to his original position with the NOPD and granted appellant back pay from the date of his suspension through the date of his reinstatement, plus “all costs and attorney fees associated with this matter.”

Subsequently Officer Carroll filed a Motion to Enforce Judgment with the Civil Service Commission on November 4, 2003. In the motion, appellant asked | gthat he be awarded back pay at the rate of sergeant, overtime pay, all costs associated with his case, and attorney fees. The Commission set the matter for hearing on November 17, 2003. At that hearing, counsel for the appointing authority notified the Commission that the City of New Orleans was ready to reinstate Carroll. The appointing authority disputed the monetary amounts claimed in the Motion to Enforce. The Commission then continued the hearing until December 15, 2003 and ordered counsel to submit quantum memoranda.

On December 3, 2003, Officer Carroll agreed to return to the NOPD on December 8, 2003. Carroll moved to St. Bernard Parish after being terminated by the NOPD and he requested a two-week grace period to re-establish his residency in Orleans Parish.

At the hearing on December 15, 2003 counsel argued concerning the amounts to be awarded for the back pay claims, overtime, sergeant’s pay, as well as costs and attorney fees. The Commission ruled that: (1) the reinstatement issue was moot because Officer Carroll had been reinstated to his former position; (2) Officer Carroll was owed back pay minus the “applicable offset” to the appointing authority; (3) the claim for overtime pay would be granted upon a showing of reasonable certainty that Officer Carroll would have been required to work the claimed overtime during the subject period; (4) all filing fees and expert costs, including testing, were owed to appellant, but other costs were denied; and (5) attorney fees of $1,500.00 were owed appellant. This appeal followed.

| STANDARD OF REVIEW

A reviewing court should apply the clearly wrong or manifest error rule prescribed -generally for appellate review in deciding whether to affirm Civil Service Commission’s findings. LSA-Const. Art. 10, § 12, See also Goins v. Dept. of Police, 89-1243 (La.App. 4 Cir. 10/30/90), 570 So.2d 93.

ASSIGNMENTS OF ERROR

Appellant asserts that the Commission erred in: (1) granting a credit to off set wages earned during his wrongful termination; (2) not granting him sergeant’s pay; (3) awarding attorney fees in the amount of $1,500.00; and, (4) allowing appointing authority to present memorandums and arguments, not previously briefed or argued, at the hearing held on December 15, 2003.

LAW AND DISCUSSION

The law is well settled as to whether an appointing authority is entitled to receive a credit, or offset, for wages earned by the employee during his or her period of separation, even where that discharge is later found to be wrongful. Civil Service Commission Rule II, Section 11.1 states:

In all appeals to the Commission under these Rules wherein a final judgment has been rendered ... immediate steps shall be taken by the City to fully comply with the judgment, [sic] This restoration shall include, where appropriate, reimbursement for all back wages and emoluments due and accrued annual and/or sick leave, less an offset for any wages earned during the period for which back pay was restored.

La.Rev.Stat. Ann. § 49:113 provides:

Employees in the state or city civil service, who have been illegally discharged from them employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of |4illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.

This Court has recently addressed this issue and ruled that an illegally discharged city employee is entitled to back pay, minus a credit for all monies received by the employee from other employment during his separation from the City. See Perkins v. Sewerage and Water Board, 95-1031 (La.App. 4 Cir. 2/29/96), 669 So.2d 726, 730. Appellant’s argument is without merit.

Officer Carroll asserts that he would have been promoted to the rank of sergeant had he not been wrongfully terminated and, thus, should be compensated at that heightened rate for some of the subject period.

Officer Carroll’s three-year anniversary of service with the NOPD was October 29, 2003. He was reinstated on December 8, 2003, approximately six weeks later. Although Officer Carroll met the length of service requirement for promotion to sergeant, there was no evidence of an opening in the ranks, that he would have taken and passed the sergeant’s exam, or that he would have been selected for the position. There is no basis in fact that the series of events outlined above would have happened. Therefore, this assignment of error lacks merit.

As for the Appellant’s claim for overtime, the Commission stated: “Concerning the appellant’s claim for overtime, such payment shall be granted upon a showing of reasonable certainty that he would have been required to work overtime during the period for which back pay and benefits are to be restored.” The Commission correctly placed the burden on Officer Carroll to establish his claim, but the record does not reflect where he was given a return date on the issue of overtime. Accordingly, the issue of overtime is remanded to the Commission to | sallow Officer Carroll an opportunity to show with reasonable certainty that he would have been required to work overtime.

This Court’s March 26, 2003 judgment awarded “all costs and attorney fees associated with this matter.” The Commission, however, in its reason for judgment, stated: “All filing fees and expert costs, including testing, shall be paid to appellant. All other costs are denied. Absent finding a figure of attorney’s fees in the Fourth Circuit Court of Appeal’s decision, the Commission in its discretion awards $1,500.00.”

Considering this Court’s previous judgment, we find the Commission’s award of $1,500.00 to be manifestly erroneous. The Commission abused its discretion in failing to award “all costs and fees associated with this matter” as specified by this Court. The record reflects that Appellant submitted a detailed descriptive list of the number of hours worked and costs incurred in resolving this matter. We find that the fees correspond with the amount of work and effort that has been put forth over three years, including multiple motion hearings and two appeals and award $39,286.57 in costs and attorney fees.

Carroll’s argument that the Commission erred in allowing the appointing authority to present memorandums and arguments, not previously briefed or argued at any hearing, prior to December 15, 2003 is without merit. Louisiana District Court Rule 9.9(b) states:

A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum must be served on all parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

LWhen the November 17th hearing was reset to December 15th, the Commission ordered additional briefs to be submitted to consider the quantum issues. The record does not reflect where either party submitted briefs or memoranda for the November hearing, but the record does reflect where the City filed its quantum memorandum on December 4, 2003, eleven calendar days before the hearing.

For the foregoing reasons, we affirm in part, amend in part, and remand this matter for further proceedings.

AFFIRMED IN PART; AMENDED IN PART; REMANDED

KIRBY, J. concurs for the reasons assigned by Judge Cannizzaro.

CANNIZZARO, J., concurs with reasons.

KIRBY, J., concurs for the reasons assigned by Judge CANNIZZARO.

1T CANNIZZARO, J.,

concurs with reasons.

I concur in the majority opinion. I am writing separately, however, to emphasize the very disturbing facts in this case.

According to the initial ruling of the Civil Service Commission in this matter, Mr. Carroll stepped on a nail while performing his duties as a police officer. Because he had been involved in a work-related accident, he was required to submit to a test for illegal drugs when he was treated for his injury at the Tulane University Medical Center emergency room. Mr. Carroll furnished a urine sample for the drug test, but the sample was not sealed in his presence. Additionally, there was no evidence that the procedures required to insure the integrity of the sample were followed. While Mr. Carroll was in the emergency room, it was crowded with intoxicated men who had been involved in a brawl at a fraternity party.

The urine sample collected at the time of Mr. Carroll’s accident tested positive for marijuana. As a result, he was terminated from his job as a police officer. It was Mr. Carroll’s contention that his urine sample was inadvertently switched with the urine sample of another patient, most likely one of the intoxicated men in the emergency room at the same time that he was there. Therefore, Mr. Carroll claimed that he was wrongfully terminated from his job.

12Mr. Carroll appealed his termination to the Civil Service Commission. At the hearing before the commission, Mr. Carroll testified that he had never taken illegal drugs, that he had taught drug prevention courses, and that he was qualified as an expert in drug abuse. Mr. Carroll also testified that he was strongly opposed to the use of illegal drugs.

Among the evidence presented to the commission were the results of a second drug test conducted shortly after the first test. Three days after the first urine sample was obtained from Mr. Carroll, another sample of his urine was collected. This sample tested negative for drugs.

An expert witness for the City of New Orleans testified that it would have been scientifically impossible for the second urine sample to have tested negative for the presence of THC, the active ingredient in marijuana, if the first test had accurately reflected the level of THC in Mr. Carroll’s urine. Additionally, a blood sample was taken from Mr. Carroll the same day that the first urine sample was collected, and the blood tested negative for illegal drags. Finally, Mr. Carroll submitted to additional drug testing, including hair analysis, at his own expense, and all of the tests showed that there were no illegal drugs in his body.

In its original decision, the Civil Service Commission stated that “[w]e are disappointed that the Appointing Authority would terminate an employee and ruin his career without sufficient evidence to support its decision.” I also note that Mr. Carroll was terminated from his job after sufficient additional testing for illegal drugs had been completed to verify that he did not have drugs in his system at the time of the initial urine test.

Mr. Carroll should never have been terminated from his job. It is very unfortunate that Mr. Carroll has had to become involved in such contentious litigation in order to be reinstated with the police department. Although the amount of attorney’s fees awarded in this case may seem excessive, I believe that they are | ¡justified. Mr. Carroll was forced to retain counsel to protect his rights when the City of New Orleans seemed determined to deprive him of those rights in the face of clear and convincing evidence exonerating Mr. Carroll. Rather than simply reinstating Mr. Carroll in his position with the police department when it was clear that Mr. Carroll had not used illegal drugs, the City of New Orleans instead proceeded to engage in protracted litigation.


author: JjiEDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Dwayne LEWIS and Phillip Bridges.
    No. 2004-KA-0227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.

      Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Dwayne Lewis.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Phillip Bridges.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   JjiEDWIN A. LOMBARD, Judge.

PROCEDURAL HISTORY

On October 24, 2001 the State filed a bill of information charging the defendants-appellants Dwayne Lewis and Phillip Bridges with five counts of armed robbery, violations of La. R.S. 14:64, and one count of possession of stolen property, a violation of La. R.S. 14:69. Also, in a seventh count of the bill of information, the State charged Bridges alone with violating La. R.S. 14:95.1 relative to being a convicted felon in possession of a firearm. The defendants pled not guilty at their arraignments on October 29, 2001. Pretrial motions were heard on December 14, 2001 and October 18, 2002, and on February 8, 2008 the court issued its ruling denying the motions. Trial was held on August 25, 2003 as to four of the armed robbery charges (counts one, three, four, and six) and the possession of stolen property charge (count two). The jury returned verdicts of guilty as charged on all counts as to each defendant. On September 18, 2003 counsel for Bridges filed a motion for new trial, which counsel for Lewis subsequently adopted. On October 7, 2003 the trial court denied the motion, and |2after both attorneys announced their clients’ readiness for sentencing, the court sentenced each defendant to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence as to each count of armed robbery. The court sentenced each defendant to two years for possession of stolen property. The court ordered that the sentences run concurrently. Counsel for Lewis immediately moved for and was granted an appeal.

On November 14, 2003, counsel for Bridges filed a motion for an out of time appeal, which the court granted. On December 10, 2003 the State filed a multiple bill charging Bridges with being a second felony offender. Although the matter was set for a hearing several times, the proceedings have not yet been held.

After the appellate record was lodged and briefs from all parties had been filed, the appellant Dwayne Lewis filed a pro se request for the record and to file a supplemental brief. The request was granted, and the record was sent to the defendant on April 8, 2004 with forty-five days in which to file the brief. However, Lewis has not filed a brief.

RELEVANT FACTS

On September 9, 2001, in the hour between 9:00 p.m. and 10:00 p.m., several armed robberies occurred in New Orleans East. Terraine Dennis was the first victim to testify at trial. He recounted that at 9:20 p.m. he and a friend, Isaiah, were walking to Isaiah’s house when a green car pulled up in front of them at the intersection of Bill and Benson Streets. Two males, one of whom was armed with a gun, got out and told them to empty their pockets. Mr. Dennis and his friend complied; Mr. Dennis also gave the robbers his bag. The robbers then told 1 sthe victims to turn around and leave. Mr. Dennis and Isaiah ran in different directions. Mr. Dennis then went home and called the police. When officers interviewed him, he provided them with a description of the perpetrators. He testified at trial that he described one robber as five feet, six inches tall and approximately 150 pounds and the second robber as six feet tall, approximately 175-180 pounds. He also described their clothing. One perpetrator was wearing a white t-shirt, a white bandanna, and dark-colored jeans. The other’s jeans and t-shirt were dark-colored.

Not long after the police had arrived at Mr. Dennis’s home and interviewed him, the officers transported him to another crime scene. There Mr. Dennis identified some personal items, including his CD player that had been in his bag. He testified at trial that he also identified two suspects on the scene as the robbers; this identification was based on their clothing and because his stolen property was on the scene with the suspects. Mr. Dennis identified the defendants in court as the two suspects who robbed him and whom he identified on the night of the crime. However, during cross-examination, he admitted that at a pretrial motion hearing he had testified he could not identify the men who robbed him. He also clarified that “a lady that drove up the street” had returned some of his belongings to him.

The next victim to testify at trial was Tyereann Henry. She stated that she was walking with her god sister, Jamie Ridg-ley, on Dwyer Road, on the night of September 9, 2001. They had just left a Ridg-ley family function and were going to the bus stop to go home because it was a school night. She stated that they saw two males walking toward them. The males walked just past them and then turned around. One of the men, whom Ms. Henry described as the “red” one, pulled out a |4gun and told Jamie Ridgley, “B’, give me all your stuff.” Ms. Ridgley gave him her purse, jewelry, and her school bag. Ms. Henry gave him her purse. According to Ms. Henry, the second male, who was dark-skinned, did not specifically ask for anything. Instead he patted Ms. Henry down, but did not take anything. However, as the robbers were walking off, the “red guy” noticed that Ms. Henry was wearing rings, came back, took her jewelry, and then ran off. The girls saw the two robbers leave the area in a bluish-green car.

After the robbery, the girls returned to the home of Ms. Ridgley’s grandmother and called the police. Officers arrived and interviewed them. Approximately twenty minutes later, the officers received a dispatch that two suspects were in custody. The officers drove the girls and Ms. Ridg-ley’s grandmother to another location where the girls identified the defendants as the men who had robbed them. At the scene, the police showed Ms. Henry two rings, one of which belonged to her and one which belonged to Jamie Ridgley; Ms. Henry also identified the rings at trial.

During cross-examination, Ms. Henry conceded that, at the time they made the identification of the defendants, she and Jamie Ridgley were aware that the police suspected that the two men had been robbing other people that night. She further admitted that, at the pretrial motion hearing, she had testified that the dark-skinned robber had covered his face with a black hat during the crime.

Jamie Ridgley did not testify at trial, although she had testified at the pretrial motion to suppress identification hearing held on December 14, 2001.

The final victim to testify was Beryl Woods. She stated that, at 9:40 p.m. on September 9, 2001, she was walking to the bus stop to go to work when a car turned the corner and stopped. A man armed with a gun jumped out and demanded 1 fiher money. She gave him $1.50 from her pocket. He then demanded her rings, which she gave him. When he told her to give up her tote bag, she instead gave him the wallet from inside it. The robber then got back into the car, which Ms. Woods described as a small dark green one, and drove off. Ms. Woods then walked back home and called the police. At first two male police officers arrived, but they then left, telling her that a female officer would arrive shortly to take her statement. Less than thirty minutes after the robbery, the first officers called in and said that two men had been caught. The female officer transported Ms. Woods to the scene where she identified two suspects. She also identified her rings that had been taken in the robbery. Ms. Woods further testified that the second man had been a passenger in the green car and had never gotten out. She identified both defendants in court.

In further testimony, Ms. Woods stated that her wallet was returned to her almost immediately after the robbery by a neighbor who had found it, looked inside, located Ms. Woods’ address, and delivered it to her. This occurred before Ms. Woods went to view the captured suspects.

Officer Brian Robertson of the Seventh District testified that he and his partner David Leang were answering calls on September 9, 2001. They responded to a call of an armed robbery of two juveniles at Dwyer Road and Babylon. As he and his partner were interviewing the victims, a radio call came in that the suspects had been apprehended in the Fifth District. The two officers transported the juveniles to Louisa and Elder Street where they made positive identifications of the suspects. Officer Robertson further testified that the victims had provided information that the suspects had fled in a small green car and that one of them had a white bandanna.

| fiDetective Regina Williams testified that she was on patrol in the Fifth District on September 9th. She interviewed a robbery victim (Ms. Woods) at Franklin and North Tonti and then drove the victim to another scene. There, the victim positively identified the suspects.

Officer Matthew McCleary testified that he was on patrol in the Fifth District on September 9, 2001 and heard the dispatcher put out a call of an armed robbery by two black males in a green Nissan Altima. He observed a vehicle matching the description of the wanted vehicle and initiated a traffic stop. At that point the Altima slowed down, and both suspects jumped out. Officers gave chase on foot. Officer McCleary pursued and ultimately apprehended Dwayne Lewis, who had been driving the Altima, while other officers apprehended the second suspect, Phillip Bridges. The officers then returned to the place where the Altima, which was still running when it had been abandoned, had crashed. A check of the license plate revealed the Altima had been reported stolen. Officer McCleary placed Lewis under arrest for possession of stolen property.

At trial, Officer McCleary identified pictures of the Altima, including an interior photograph that reflected that the ignition had been defeated, meaning that the car could be started without a key. He testified that he recovered $252.00 from Lewis, and other officers seized $178.27 from Bridges. Additionally he identified some rings that had been recovered from Lewis. Officer McCleary further identified a gun that was recovered from the area where the defendants were apprehended.

Officer Patrick Hartman testified that he and his partner, Dan Plustache, participated in the response to the call of several armed robberies by two suspects |7in a green car. Officer Hartman stated that he and his partner apprehended one of the suspects, although he could not recall the suspect’s name at trial.

The defense called no witnesses at trial.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1 (BRIDGES) & 2 (LEWIS)

Both appellants contend that the evidence was insufficient to support their convictions for possession of stolen property, to wit, the green Altima. They argue that, because the owner of the vehicle never testified, the State failed to show that the vehicle was stolen or that the defendants did not have permission to use it. The State responds that the defeated steering column of the vehicle was sufficient evidence to prove the vehicle had been the subject of a theft.

In State v. Thomas, 99-1955 (La.App. 4 Cir. 1/26/00), 752 So.2d 318, this Court citing State v. Ash, 97-2061 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, summarized the standard of review that applies when a defendant claims that the evidence produced to convict him of violating La. R.S. 14:69 was constitutionally insufficient as follows:

In evaluating whether evidence is constitutionally sufficient 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). The reviewing court is to consider the record as a whole and not just the 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 |scalled 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 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 proved 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 is an evi-dentiary 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).
In order to sustain a conviction under La. R.S. 14:69, the State must prove that (1) the property was stolen; (2) the property was worth more than five hundred dollars; (3) the defendant knew or should have known that the property was stolen; and (4) the defendant intentionally received the property. La. R.S. 14:69; State v. Hoskin, 605 So.2d 650 (La.App. 4 Cir.1992); State v. Lampton, 97-2616 (La.App. 4 Cir. 3/10/99), 729 So.2d 754.

State v. Thomas, pp. 6-7, 752 So.2d at 322-323.

The Louisiana Supreme Court has addressed the particular question of the sufficiency of evidence to show that the property was stolen within the meaning of the statute. In State v. Nguyen, 367 So.2d 342 (La.1979), a storeowner testified regarding a burglary of several jewelry items from his store. The defendant came to the store with one of the items, a pendant, and asked the victim to make a chain for it. The victim took possession of the pendant without informing the defendant that it | nhad been stolen. When the defendant returned to pick it up, the victim told the defendant about the burglary and asked if he would be willing to help recover the other items taken during the 'burglary. The defendant agreed and accepted $500 from the victim to purchase the stolen items. The defendant was able to purchase a watch for $100 from his landlady, who had apparently obtained it from another tenant, and delivered it to the victim. The defendant also gave the victim back $300, and according to the testimony of the victim’s wife, was permitted to keep $100 for his troubles. He was subsequently arrested for possession of the property stolen in the burglary that he had returned to the victim. In considering the argument that this evidence was insufficient to support his conviction, the court stated:

Mere possession of stolen property does not create a presumption that the person in possession of the property received it with the knowledge that it was stolen by someone else; the state must prove that the accused actually knew or had good reason to believe that the property was stolen before a conviction under La.R.S. 14:69 can be obtained. State v. Walker, 350 So.2d 176 (La.1977); State v. Henderson, 296 So.2d 805 (La.1974); State v. Rock, 162 La. 299, 110 So. 482 (1926).
Eminent criminal law treatise writers have observed that the crime of receiving stolen property requires the prosecution to prove additionally, although most statutes do not specifically mention it, that the receiver intended to deprive the owner of his property. W.R. LaFave and A.W. Scott, Criminal Law, s 93 (1972); 2 Wharton’s, Criminal Law and Procedure, s 567 (1957); Clark and Marshall, Crimes, s 12.39 (7th ed.1967); cf. R.M. Perkins on Criminal Law, p. 329 (2d ed.1969).
These scholars also maintain that it is essential to the commission of the crime of receiving stolen property that the property in question be “stolen” at the moment the defendant receives it. If at the time of the alleged offense the property, although previously stolen, has lost its stolen character through a recovery by the owner or his agent, the receiver cannot be held guilty. 2 Wharton’s Criminal Law and Procedure, s 573 at p. 293 (1957); Clark and Marshall, Crimes, s 12.38 (7th ed.1967); R.M. Perkins on Criminal Law, p. 326 (2d ed.1969).

Nguyen, 367 So.2d at 344. Then court further opined that,

110If the law were interpreted so as to prevent the stolen property from losing its stolen character upon recovery by the owner, an absurd result inconsistent with the legislation’s purpose would be achieved. Policemen, spouses, relatives, friends and trusted employees acting in good faith for the owner, as well as the owner himself, would be guilty of the crime upon receipt of the property with knowledge that it had once been stolen, if the stolen character of the property were to continue even after recovery by the owner or someone acting- for him.

Id. at 345.

In State v. Juengain, 410 So.2d 1099 (La.1982), the court was faced with a case where the evidence regarding the stolen nature of the property was inadmissible hearsay. In that case, the allegedly stolen property was American Express Traveler’s checks. The State attempted to introduce business records from American Express to substantiate that they had been stolen, but the trial court disallowed the evidence because the records had not been properly authenticated. However, the trial court did allow the American Express investigator to testify that he had learned that the checks had been stolen; he recounted that he learned this from his investigation that included speaking to the woman who had purchased the checks and reported them stolen. The Supreme Court held this evidence was insufficient as the investigator’s knowledge was strictly inadmissible hearsay. Juengain, 410 So.2d at 1101. Because no other evidence was presented to substantiate that the traveler’s checks (which the defendant had attempted to sell) were stolen property, the court reversed the defendant’s conviction.

A similar issue arose before this Court in State v. Warren, 538 So.2d 1036 (La.App. 4 Cir.1989). In that case the defendant was convicted of the illegal possession of an hydraulic winch, an electric fan, a butane tank, a diesel fuel tank, a counter balance valve, a steel pad eye, two 2 inch couplings, one rotary coupling, and one pressure regulator, all allegedly stolen from a boat yard where he was |T1 employed. The owner of the boat yard identified some, but not all, of the items as from his boat yard. However, he was unable to say that they had been stolen from the yard. The only evidence of an actual theft consisted of inadmissible hearsay from a witness who testified that he heard the person from whom the defendant obtained the winch admit that it had been stolen from the boat yard. This Court reversed the conviction because of a lack of admissible evidence that the items were actually stolen.

Similarly, in State v. Dominick, 506 So.2d 193 (La.App. 5 Cir.1987), the court reversed one of the counts for which the defendant was convicted. The defendant was observed stealing goods from a Sears department store in Gretna; the security officers apprehended her and an accomplice with the stolen goods in a car in the parking lot. Also in the car were items traced to a J.C. Penney store in Orleans Parish. At the subsequent trial, the defendant was convicted of theft of the Sears merchandise and possession of stolen property, to wit, the J.C. Penney items. However, the only evidence that the Penney’s items were stolen came from the security chief from J.C. Penney, who identified the merchandise as coming from a Penney’s but was unable to state that the items had been stolen.

In an earlier case, State v. Bruce, 472 So.2d 79 (La.App. 5 Cir.1985), the Fifth Circuit had also reversed a conviction for possession of stolen property because of a lack of evidence to substantiate a theft. In Bruce the defendant was apprehended in a vehicle that was registered to the Avis airport rental car company and reported stolen to the Kenner police. In an errors patent review for sufficiency of the evidence, the court found that the State had failed to meet the requisite standard under the following facts:

11?The State’s evidence did establish that the defendant was in possession of the vehicle in question, and it also established its value was in excess of $500.
However, the evidence did not establish that the vehicle was the subject of a robbery or a theft nor, under the circumstances, indicate the offender knew or had good reason to believe that the vehicle was the subject of a robbery or theft. Detective Alan Drumm of the Kenner Police Department testified that the car was listed by the Kenner Police as being stolen. He does not say on what the listing as stolen is premised, say just who reported the car stolen, nor lay a foundation as to the reliability of the listing. A Mr. Herbert Washington, employed by Avis Used Cars and relying on business records, testified that the car was owned by Avis on November 11, 1983; that Avis sold the car on January 18, 1984; and that Avis had paid $8421.27 for the car in March, 1983. Although on direct-examination he asserts the car was reported stolen and that the defendant never had permission to have the car, Mr. Washington on cross-exam concedes that he would not know if the defendant had permission to drive the car. Washington, moreover, responds with circular non-reasoning when defense counsel repeats the question. Additionally, he cannot say when last he saw the particular car since Avis had several blue Firebirds at that time. Mr. Washington never rents cars himself but does various odd jobs. Not Washington but the supervisor on duty would report a car stolen. Washington would know about it only by its showing up on the company computer. On redirect, Washington indicates that Avis’ business records do not indicate that Bruce ever owned the Firebird. When recalled, Detective Drumm testified that Bruce never produced any rental papers on the car.
The defendant apparently had keys with which to enter and start the car. At least he so deftly got into the locked car that Detective Drumm observing him, gathered he had keys. There is no testimony Bruce tried to elude police officers once they made themselves known and no testimony of the defendant’s suspiciously checking about the surroundings as he approached the car. The car was parked to the rear of an apartment complex and backed into its space so that it was not visible from Jefferson Highway. Bruce, apparently, walked directly to the car and got in. When stopped, he never produced any rental or ownership papers. Neither did he ever make any statement. Although Detective Drumm testifies that stolen license plates had been substituted for the car’s proper plates, no evidence indicates the defendant knew or should have known of this. Nor is the car’s being hidden from street view of itself any good reason to believe it stolen.
Essentially, one element of the crime is supported by uncorroborated hearsay while another is not substantiated at all. Under such circumstances, even viewing the evidence in the light most | ^favorable to the State, no case of the defendant’s having committed a crime is proved.

Bruce, 472 So.2d at 81-82.

Arguably, all of the above cases could be distinguished from the instant one because the vehicle in this case had a defeated ignition system and was running despite the lack of a key, thus clearly showing that it had been the subject of a theft. In contrast, the items in the cases discussed above did not have such apparent evidence that they had been stolen. However, the court in Bruce noted that there were two separate elements that were not proven— that the vehicle was stolen and that the defendant possessed it under circumstances wherein he had reason to know it had been. Here, the evidence of the defeated ignition supports a finding that the defendants had reason to know the vehicle had been the subject of a theft, but as the court had noted in Nguyen, an item once stolen does not necessarily retain its “stolen” character forever. Thus, if the vehicle had been stolen, returned to the lawful owner, and then lent by him to the defendants before the ignition system could be fixed, under Nguyen the defendants would not be guilty of possession of stolen property.

The State in its brief cites two cases to support its argument that the defendants’ mere presence in a vehicle with a defeated ignition is sufficient to support the conviction. In State v. Sanders, 622 So.2d 817 (La.App. 4 Cir.1993), a tourist drove to the French Quarter and parked his car. Two hours later when he returned, his car was not there, and he assumed it had been towed. After going to the car pound, and finding that it was not there, he called the police and reported it stolen. At 7 o’clock the next morning, the police called him to identify his car in the Uptown area. When he arrived, he saw the defendant wearing his fraternity 114jacket that had been in the trunk of the car. The steering column of his car had been broken; the lock of the trunk was ripped off; one of the door locks was broken; and the back of the car was dented. The victim testified that he had given no one permission to drive it. The defendant, who had been found in the car by the police when they had responded to a call of a man sleeping in a car with the motor running and blocking the corner, claimed that someone had given him a ride, then parked the car, went upstairs, and never returned. The defendant fell asleep in the vehicle waiting; he claimed he never noticed that the steering column had been broken.

After Sanders was convicted, this Court affirmed, citing State v. Wilson, 544 So.2d 1300 (La.App. 4 Cir.1989), the second case relied upon by the State in its brief. In Wilson, this Court considered whether the fact that the defendant was in a car with a broken steering column and door lock was sufficient to demonstrate that the defendant knew or should have known that the car was stolen and concluded that it was sufficient. Notably, in Wilson, the victim testified to the fact that her vehicle had been stolen and that she had not given anyone permission to drive it. The man who was driving the car when stopped by the police, and who had entered a guilty plea to the offense, testified that Wilson was only a passenger and did not know the car was stolen. This Court concluded that the evidence was sufficient to prove Wilson’s constructive possession of a stolen vehicle, noting:

The State clearly proved the vehicle was stolen and was valued in excess of $500.00. Further the evidence is clear that the door lock on the passenger side was “popped out” and that the steering column was broken. There was broken plastic from the steering column on the floor as well as a screwdriver. The defendant was a willing passenger in the vehicle.

State v. Wilson, 544 So.2d at 1302.

| ifiThe owners of the stolen vehicles testified in both Wilson and Sanders, thus making those cases distinguishable from the instant one. If the owner or some other person with direct evidence of the theft had testified here, this case would be indistinguishable from them. However, because the only evidence of the vehicle’s status as stolen property in this case was the hearsay testimony of Officer McCleary, this case appears to be much closer to the Bruce case. This is particularly true in light of the fact that Officer McCleary provided no details regarding the report that the vehicle had been stolen. He did not testify from whom it was allegedly stolen, from where, or when it had been stolen, i.e., whether it had been the day previously, the week previously, or a month previously. Notably, there was no indication that the defendants had actually been involved in the theft of the vehicle, although they clearly had used the vehicle to commit robberies.

The State’s evidence did establish that the defendants were in possession of the vehicle in question. However, the evidence did not establish that the vehicle was the subject of a robbery or theft nor, under the circumstances, indicate the offenders knew or had good reason'to believe that the vehicle was the subject of a robbery or theft. Even viewing the evidence in the light most favorable to the State, no case of the defendants’ having committed a crime is proved. Therefore, we find there was insufficient evidence from which a rational jury could have concluded these defendants were guilty of possession of stolen property.

ASSIGNMENT OF ERROR NUMBER 2 (BY BRIDGES)

In the second assignment of error filed by the appellant Bridges, he argues that the evidence was not sufficient to support his conviction for the armed robbery of Jamie Ridgley, count three of the bill of information, because Ms. Ridgley did lumot testify. The appellant contends that this conviction rests only on the testimony of Ms. Henry and, without citing any cases to support the contention, avers that the victim must testify for the evidence to be sufficient.

A similar argument was rejected by this Court in State v. Preston, 98-0180 (La.App. 4 Cir. 11/10/99), 752 So.2d 211. In Preston the defendant was convicted, inter alia, of two counts of first-degree robbery. The two victims were together when they were robbed, but only one testified at trial. On appeal the defendant contended that the statute required proof that the victims both had á subjective belief that the defendant was armed, and absent that testimony, the conviction for the first-degree robbery of the absent victim could not stand. This Court rejected that argument, finding that the circumstantial evidence in the form of the other victim’s testimony that they both surrendered their valuables was sufficient to prove the crime.

Here, Ms. Henry testified that the defendants approached Jamie Ridgley and herself. One of them, whom she described as the “red” guy, was armed with a weapon and demanded Ms. Ridgley’s belongings. Ms. Henry testified that Ms. Ridg-ley complied with the demand, giving up her book bag and jewelry. - The second perpetrator, whom she described as dark-skinned, patted Ms. Henry down while this was occurring. This evidence clearly established.Ms. Ridgley was the victim of an armed robbery; furthermore, the evidence established that both defendants were principals to the robberies.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 1 (BY LEWIS)

|17In the first assignment of error raised by counsel for Dwayne Lewis, the appellant contends that the trial court erred when it denie^.the motion to suppress the out-of-court identifications that occurred in one-on-one show-up procedures.

Citing State v. Haynes, 2002-1648 (La.App. 4 Cir. 4/30/03), 847 So.2d 653, turit denied 2003-1698 (La.5/14/04), 872 So.2d 508, this Court in State v. Ford, 2003-1321, pp. 6-7 (La.App. 4 Cir. 2/18/04), 867 So.2d 835, 839, recently reviewed the standard for suppressing a one-on-one out of court identification procedure:

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 788 (La.1984) State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990). One-on-one confrontations between the suspect and the victim, while not favored by law, are generally permissible when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for an on-the-spot identification. State v. Robinson, 404 So.2d 907, 909-910 (La.1981). Such a process assures reliability and fosters prompt release of innocent suspects. Id.
Even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517.

The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the 11sassailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s 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. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Higgins, 01-368 (La.App. 5 Cir. 10/17/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981); State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

In Ford the victim was accosted by the defendant in the bathroom of a French Quarter restaurant. When one of her friends went to check on her, the defendant fled and was pursued by other friends of the victim. They were able to apprehend the defendant a few blocks away and held him until police arrived. One of the friends then returned to the restaurant to get the victim who went to the scene and identified the defendant. This Court held that it was reasonable and appropriate to attempt to secure an identification immediately.

The Court in Ford cited State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, which involved a fact situation very similar to the instant one. In that case, several people were armed robbed within a short period of time. One of the victims was robbed by the defendant who exited a white van and then fled in it after the robbery. She was able to describe the vehicle to the police. While she was still talking to the officers, she learned that the police were investigating a [ ^disturbance that had just occurred nearby. That disturbance was another armed robbery involving suspects who fled in a white van at high speed when a police officer attempted to pull them over. The first victim was transported to the scene of the disturbance where she observed the defendant in handcuffs. She identified him as the person who had robbed her. She also identified her purse and a gun that had been inside the purse when it was stolen; these items had been found at the same location where the defendant and another suspect were apprehended hiding after they had fled from the van. The victims of the other robberies also identified the defendant as the person who had robbed them. This Court concluded that, even if the procedure for identifying the defendant was suggestive, it was reliable and reasonable “[gjiven the fact that he had just emerged from a van involved in a high-speed chase with police officers.... ” Carter, p. 15, 779 So.2d at 136.

The facts in the instant case are just as strong as those in Carter to justify the show-up identification procedures used. At the December 14, 2001 motion hearing, Officer Claude Nixon, who did not testify at trial, testified that he and Sergeant Eden were some of the Fifth District officers involved in the case. He and the sergeant responded to an armed robbery call at Franklin and Tonti where they were met by members of Ms. Woods’ family. The description of a robbery by two males in a small green car was related to the officers. According to Officer Nixon, around the same time, a second armed robbery call came through the Fifth District; this robbery had occurred “just right down the street at Almonaster and North Tonti.” The officers immediately proceeded to that scene where they met with a second victim, Mr. Thompson. He informed the officers that he had been l^robbed by two black males. He was able to give them a more specific description of the vehicle, specifically “a four door green Altima.” Mr. Thompson also related that the vehicle was traveling in a lake bound direction on Almonaster, on the overpass towards Higgins. The officers immediately broadcast this information. According to Officer Nixon, twenty minutes later the vehicle was observed at Louisa and Almo-naster traveling lake bound on Louisa. Officer Nixon, Sergeant Eden, Officer McCleary, and his partner Officer Del Castio then initiated the traffic stop that resulted in the defendants abandoning the Altima while it was still in motion.

In addition to this testimony, the victims of the robberies, with the exception of Mr. Thompson, testified at the motion hearings held on December 14, 2001 and October 18, 2002. Their testimony was very similar to that given at the trial. They all indicated that the police responded very quickly to their reports of being robbed and that they were transported to the scene for the identifications within a short time. Mr. Dennis candidly admitted that he identified the defendants based upon his property being at the scene; however, he also testified that he was able to identify the suspects’ car. Jamie Ridgley testified that she was able to see the face of the dark-skinned robber before he pulled a mask down. She further testified that the second man had a shirt tied around his head, but that she could clearly see his face. Ms. Henry testified at the motion hearing that one robber had a t-shirt tied around his head, but nothing covering his face.

Ms. Woods’s testimony at the motion hearing was similar to that from the trial. She gave slightly more detailed testimony regarding the identification procedure itself, however. She said that the police showed her one man first and asked her if it was the man who robbed her; she replied no, because he was the tall |g1 one who “never got out of the car.” She was then presented with a second suspect, and at that point she identified him as the man who robbed her at gunpoint. In further testimony Ms. Woods said that she remained in the police car and did not know where the suspects came from. She was told that the two suspects had been caught on Higgins and Louisa.

The record of this case, both from the motion hearings and the trial, clearly shows the similarity to the identification procedure held reliable in Carter. A description of the vehicle the robbers were using was broadcast within minutes of the robberies. According to the victims, they were transported to the scene for the identification procedure very shortly after they had been robbed, and all of the robberies occurred within a short time period. When the police attempted to stop the vehicle, the defendants abandoned it without even turning off the motor. Personal property belonging to some of the victims was found on the person of Lewis, and other property was found inside the vehicle. Therefore, even if the procedure used was suggestive, the identifications themselves appear reliable.

This assignment of error lacks merit.

For the foregoing reasons, the appellants’ convictions and sentences for armed robbery are affirmed and the appellants’ convictions and sentences for possession of stolen things are reversed and vacated.

AFFIRMED IN PART; REVERSED AND VACATED IN PART

      . The docket master and minute entries reflect that Lewis was charged with violating La. R.S. 14:64.3, relative to armed robbery with a firearm. However, the bill of information reflects charges of 14:64 (R. 9). Furthermore, the jury verdicts clearly reflect that both defendants were charged with armed robbery (R. 141-159).

      . Trial was not held as to count five because the victim could not be located. On January 16, 2004 the State dismissed this count, although the State reserved its right to reinsti-tute prosecution. The record does not reflect a disposition of the seventh count.

      . Isaiah’s last name is not reflected in transcript; no charges were filed listing him as a victim.

      . At that time, La. R.S. 14:69 was actually titled "Receiving stolen things” and did not include the specific language referencing possession; instead the crime was defined as "the intentional procuring, receiving or concealing of anything of value which has been the subject of a robbery or theft, ...” In 1982, the statute was amended to substitute "illegal possession of” for "receiving” in the heading and the text.

      . Mr. Thompson is the victim named in the count of the bill of information that was subsequently dismissed because the prosecution was unable to locate a current address for him.