author: JOHNSON, Justice.

text:
    STATE of Louisiana v. Wayne MACON.
    No. 2006-K-481.
    Supreme Court of Louisiana.
    June 1, 2007.

      Charles C. Foti, Jr., Atty. Gen., Eddie J. Jordan, Jr., Dist. Atty., and Battle Bell, IV, Asst. Dist. Atty., for applicant.
    Rudy Willie Gorrell, Jr., for respondent.
   JOHNSON, Justice.

hWe granted this writ application to review the correctness of the court of appeal’s decision, which upheld the judgment of the trial court vacating defendant’s conviction for unauthorized use of a motor vehicle in violation of La. R.S. 14:68.4, and granting him a new trial. The trial court reasoned that the State had failed to produce the “true” victim, not the owner of the vehicle at the time it was stolen, as the State alleged in the bill of information, but, rather, the insurance company, which had apparently settled with the owner of the vehicle in the year and a half that intervened between the theft of her vehicle and its recovery by New Orleans police officers.

For the following reasons, we reverse the decision of the court of appeal, and remand this matter to the trial court for sentencing.

FACTUAL AND PROCEDURAL HISTORY

On January 16, 2002, Avilla Kern reported that her blue 1996 Chevrolet Lumina had been stolen. On March 17, 2003, two officers from the New Orleans Police Department stopped a white 1996 Lumina after the vehicle ran a stop sign. | ¿The license plate was not visible at the rear of the Lumina. As the officers activated their sirens and lights, the car sped away and, after driving onto the curb, the driver exited the vehicle and fled on foot. Following a foot chase, the officers apprehended defendant, Wayne Macon (“Macon”).

Upon inspecting the vehicle, one of the officers noted that the vehicle identification number (“VIN”) plate on the dashboard appeared to have been tampered with. He requested the assistance of Sergeant Dan Anderson, who was then a member of the auto theft task force. Sergeant Anderson confirmed that the VIN plate on the Lumina’s dash had been tampered with, indicating to him that the vehicle was stolen, and was a “numbers job.”

Due to his specialized training, Sergeant Anderson was able to identify the vehicle’s true VIN, found in a confidential location on the vehicle. Using the true VIN, the vehicle was later determined to be the one reported stolen by Ms. Kern. The police advised Ms. Kern that her vehicle had been recovered, but she was never required to inspect the vehicle to identify it as her stolen vehicle. Ms. Kern confirmed to the police that she did not give anyone permission to use her vehicle.

After he was apprehended by the officers, Macon admitted that he was aware that the vehicle was “a numbers job,” and that he had exchanged two pieces of crack cocaine for use of the car from a person named Troy Lewis. Macon further stated that he had seen the vehicle being driven around for about six months.

Macon was charged with unauthorized use of a motor vehicle, and a jury found him guilty as charged. Macon filed a motion for post-verdict judgment of acquittal on the basis that there was insufficient evidence in the record to support the guilty verdict. Defendant argued that Ms. Kern was never required to identify her vehicle, and that she was only informed by the police officers that her vehicle was identified [sby the VIN. Defendant argued that the State did not prove that the vehicle belonged to Ms. Kern, considering that there were two different VINs on the vehicle, and that Ms. Kern’s vehicle was blue, while the recovered automobile was white. Defendant further argued that he had “permission of another” to use the vehicle, as he had been given consent/permission from Troy Lewis.

The trial court held a hearing on the motion for post verdict judgment of acquittal. During oral argument, while explaining why Ms. Kern did not identify or retrieve the vehicle after it was recovered, the State informed the court that Ms. Kern had previously settled her claim with her insurance company. At this point, the trial court stated that this information raised a new issue, and because Ms. Kern had settled with her insurance company, she was not the rightful victim, as the insurance company was the owner of the vehicle at the time of the defendant’s arrest. The trial court then, sua sponte, converted defendant’s motion for acquittal into a motion for new trial. The trial court granted defendant a new trial, stating that “... arguably, at the very least, the person who is listed in the bill of information in this case (Ms. Kern) is not the victim. Because, in fact, she simply is not the victim.”

The State appealed the trial court’s decision, arguing that it was error to convert the motion for acquittal into a motion for new trial, and asserting that the fact that Ms. Kern may have settled with her insurance company would not change the verdict. The defendant answered the appeal, arguing that the trial court should have granted his motion for post verdict judgment of acquittal. The court of appeal, in a 2-1 decision, affirmed the trial court’s ruling. The court of appeal noted that there was nothing to prevent the defendant from filing a motion for new trial after the hearing, and thus, it would not be in the interest of judicial economy to grant the State’s appeal |4on that issue and remand the case to allow the defendant to file a subsequent motion for new trial. Thus, the court of appeal went forward to address the substantive issues of the motion for new trial. The court of appeal reasoned that the insurance company was the proper party to identify the vehicle and establish that the defendant was not authorized to use the vehicle. The court of appeal concluded that by not presenting testimony from the owner of the vehicle (i.e. the insurance company), the State failed to establish the unauthorized use of the vehicle. Thus, the court of appeal did not find any abuse of discretion on the part of the trial court in granting the new trial.

DISCUSSION

The issue presented by the State for review is whether the trial court erred in granting a new trial “based on the unsubstantiated finding that the victim had received compensation for her stolen vehicle in an unauthorized use of a motor vehicle case.”

New Trial

Article 851 of the Code of Criminal Procedure provides the grounds for a motion for new trial:

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:

(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made diming the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered | fibefore the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

La. C. Cr. Proc. art. 851 (Emphasis added).

In this case, the trial court presumably based its granting of the new trial on “new and material evidence,” La. C. Cr. Proc. art. 851(3), or on La. C. Cr. Proc. art. 851(5), that the ends of justice would be served by the granting of a new trial.

In considering a motion for new trial based on newly discovered evidence, the test is not whether another jury may reach a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Williams, 343 So.2d 1026 (La.1977). We do not find that evidence relating to Ms. Kern’s insurance settlement would meet this burden.

Although the trial court apparently relied on information that Ms. Kern had reached a settlement with her insurance company in granting the new trial, there is no evidence in the record indicating that a settlement was reached; nothing indicating the date of the alleged settlement; and nothing indicating that the title of the vehicle was ever actually changed from Ms. Kern to her insurance company. Considering this lack of evidence, there is no proof that the insurance company was the legal owner of the vehicle at the time of the defendant’s arrest.

Moreover, we are of the opinion that the true victim in this case is the person who was deprived of the use of the stolen vehicle, Ms. Kern. Whether or not she settled her insurance claim does not change the fact that she was the owner of the car when it was reported stolen. The question of whether Ms. Kern settled her insurance | fidaim is of no legal consequence in this case, and does not change the “victim” for purposes of determining whether the defendant was guilty of unauthorized use of a motor vehicle.

Furthermore, information that Ms. Kern had allegedly settled with her insurance company was not a fact previously unknown to the defendant before or during the trial of this matter. In general, “newly discovered evidence” must be of a nature that it was not known to the defendant, nor discoverable by reasonable diligence, before the verdict. State v. Motton, 395 So.2d 1337 (La.1981); State v. Rossi, 273 So.2d 265 (La.1973). At the trial of this matter, defense counsel specifically asked Ms. Kern whether she had settled with her insurance company, however the trial judge sustained the state’s objection to relevance. Although Ms. Kern was not allowed to answer the question, the question itself reveals that the defendant was aware that Ms. Kern may have settled her insurance claim, or, at the very least, that the defendant was aware of this issue. Thus, the issue of Ms. Kern’s insurance settlement is not “newly discovered” evidence such that would justify a new trial.

The trial court is accorded much discretion in evaluating the impact of newly discovered evidence on the verdict, and thus, the ruling on a motion for new trial based on newly discovered evidence will only be disturbed on appeal where there is an abuse of discretion. State v. Brown, 338 So.2d 686 (La.1976). For the above reasons, we find that the trial court abused its discretion in granting the defendant a new trial based on newly discovered evidence.

In reviewing a trial court’s granting of a new trial pursuant to La. C. Cr. Proe. art. 851(5), we note that under most circumstances, district court judgments on |7motions for new trial to serve the ends of justice are not subject to review by appellate courts because they present nothing for review. However, in this case we find that the trial court’s sua sponte decision to convert the defendant’s motion for post-verdict judgment of acquittal into a motion for new trial, then grant a new trial based on a finding that the State had failed to present sufficient evidence to prove the crime with which defendant was charged, constituted legal error that must be reversed.

Sufficiency of the Evidence

In ruling that a new trial was warranted because the State failed to establish the unauthorized use of the vehicle, the lower courts held, as a matter of law, that the State’s evidence was insufficient to support the defendant’s conviction. If the evidence was, in fact, insufficient to support Macon’s conviction, then he was entitled to a judgment of acquittal, and it was legal error to grant a new trial.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any 8switnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

La. R.S. 14:68.4 provides, in pertinent part:

A. 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 motor vehicle permanently. (Emphasis added).

The statute does not specifically require the titled owner of the vehicle to testify and/or identify the vehicle. We hold that the State can meet its burden of proof by proving that the defendant was aware that he was driving a stolen vehicle, as we can presume that there can be no legitimate permission given to drive a stolen vehicle.

At trial, the State presented the testimony of Ms. Kern, Detective Mitch Weatherly, and Sergeant Dan Anderson. Ms. Kern testified that she owned a blue, 1996 Lumina, which was stolen on January 16, 2002. Approximately a year and a half later, she was advised by police that they had found and identified her vehicle by the VIN. She further testified that she did not know the defendant, nor did she know Troy Lewis, and that she had never given either man permission to use her vehicle.

Detective Weatherly testified that on March 17, 2003, he and his partner, Detective Varnado, observed a white vehicle run a stop sign, and, after getting behind the vehicle, he observed that the license plate was not visible. He testified that when they activated their lights, the white vehicle sped up and came to an abrupt stop on the curb. The driver then exited the vehicle and began running. Detective Weath-erly chased the driver, and eventually caught him and took him into custody. The driver [¡¡was identified as defendant, Wayne Macon. After returning to the vehicle, Detective Weatherly 'testified that he began his inspection, and noticed that the VIN plate appeared to be raised off of the dashboard, and that one of the rivets was not secured. Upon further inspection, he noted that the rivets had been glued onto the VIN plate, and that the VIN plate had been glued onto the dashboard. Detective Weatherly was unable to locate the true VIN, thus he contacted Sergeant Dan Anderson and asked him to come to the scene. He testified that Sergeant Anderson was able to locate the true VIN, and that the vehicle was later identified as belonging to Ms. Kern.

Detective Weatherly further testified that the defendant stated that he had exchanged two pieces of crack cocaine for the use of the vehicle from Troy Lewis. Defendant admitted that he was aware that the vehicle was “a numbers job,” and that he had seen the vehicle being driven around for the last six months. Detective Weatherly testified that a “numbers job” indicates a stolen vehicle, whose true VIN plate is replaced by a faulty VIN plate. He further testified that the color of the car is often changed to match the identity with the faulty VIN.

Sergeant Anderson testified that on March 17, 2003, he was a member of the citywide auto theft task force, and had been contacted by Detectives Weatherly and Varnado relative to a vehicle that appeared to have an altered VIN. Sergeant Anderson testified that the VIN plate recovered from the Lumina’s dashboard had been tampered with, and he stated that it was a “numbers job.” He explained that a “numbers job” is when a person removes the VIN plate from a salvage car, steals a car of a similar make and model, cuts the VIN plate off of the stolen car, and replaces it with the VIN plate of the salvage car. Sergeant Anderson also testified that there are additional, confidential numbers within a vehicle, indicating the vehicle’s true VIN, which can be located by a specialized officer. He was able to locate this | ^confidential number (“true VIN”) on the Lumina, and later determined that the vehicle had been reported stolen.

The use of VINs is an integral part of the regulation of motor vehicles at the federal and state levels, and VIN data is presumptively reliable in identifying vehicles. The VIN consists of seventeen characters, unique to each vehicle and required on all cars and trucks. See 49 CFR § 565.4.

In New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the Court discussed the importance of VINs in regulating vehicles:

The VIN is roughly analogous to a serial number, but it can be deciphered to reveal not only the place of the automobile in the manufacturer’s production run, but also the make, model, engine type, and place of manufacture of the vehicle. The VIN is a significant thread in the web of regulation of the automobile. See generally 43 Fed.Reg. 2189 (1978). The ease with which the VIN allows identification of a particular vehicle assists the various levels of government in many ways.

New York, 475 U.S. at 111, 106 S.Ct. at 964.

We are not persuaded by defendant’s argument that because there were two VINs found on the car (the VIN on the dash plate, and the VIN found in the confidential location), that there is a possibility that the confidential VIN could have come from another vehicle. The use of confidential VINs has long been used and relied upon by courts around the nation to identify stolen vehicles. Thus, considering the reliability of VIN data, and the testimony of Sergeant Anderson, and Detective Weatherly, we find that the State sufficiently proved that the vehicle in question was the same vehicle reported stolen by Ms. Kern.

L furthermore, considering all of the evidence in a light most favorable to the State, we find that the jury reasonably found the defendant guilty of unauthorized use of a motor vehicle. The evidence and testimony reflect that Macon was stopped by police while driving a vehicle which he did not own. An investigation revealed that the VIN on the dashboard of the vehicle had been tampered with. Further investigation uncovered the true VIN (located in a confidential area of the vehicle), and identified the vehicle as belonging to Ms. Kern, who had reported the vehicle stolen the previous year. The defendant admitted that he was aware that the vehicle was a “numbers job” and that he had seen the vehicle being driven around for about six months. Defendant also admitted to the police that he had traded crack cocaine for use of the car from Troy Lewis. Moreover, defendant displayed guilty behavior by fleeing the vehicle when it was stopped by the police.

The Fourth Circuit considered a defendant’s knowledge that he was driving a stolen vehicle in State v. Jefferson, 1997-2949 (La.App. 4th Cir.4/21/99), 735 So.2d 769, and affirmed the defendant’s conviction for unauthorized use of a motor vehicle. In Jefferson, the police stopped a vehicle with three occupants. A rental agreement was found in the glove compartment, although none of the occupants’ names was on the rental agreement or on any of the documentation found in the vehicle. The officer noted that the steering wheel was intact, and that the occupants had the ignition key. The defendant driver advised police that she had borrowed the vehicle from a woman who lived in New Orleans East, but that she only knew the woman’s first name. After running the license plate number, the officer learned that the vehicle was stolen. The vehicle belonged to Budget Rent-A-Car and had been rented to a third person, but not returned. The defendant argued that the State did not produce sufficient evidence to show that she intentionally took or used a motor vehicle that belonged to another | ^person. The defendant argued that there was nothing in the vehicle which would indicate to her that the vehicle was stolen. The court disagreed, noting that the defendant was the person who obtained the vehicle from an unknown person for her own personal use. The court held that the trier of fact could conclude that the defendant’s story was suspicious and indicative of criminal knowledge and/or intent. The court also held that the defendant knew, or should have known, that the vehicle did not belong to the woman from whom she allegedly borrowed the vehicle, as the rental agreement was in the vehicle and showed that the car belonged to Budget Renfi-A-Car, and was leased to a third person. The court also noted that the state produced evidence to show that the vehicle had, in fact, been stolen.

In this case, considering the evidence of the tampered VINs, defendant’s conduct, and his admission to the police that he knew that the vehicle was a “numbers job,” we find that Macon knew, or should have known, that he did not have permission from the rightful owner to use the vehicle. Although Macon alleged that he received permission to use the vehicle from Troy Lewis, it is clear, based on the evidence, that Macon knew, or should have known, that Troy Lewis was not the rightful owner who had authority to grant permission to use the vehicle. Thus, we hold that the State has proven that the defendant knew he was driving a stolen vehicle.

We find, based on the evidence in the record, that the State has sufficiently proven the elements of unauthorized use of a motor vehicle.

DECREE

For the above reasons, the ruling of the court of appeal is reversed, and the jury’s verdict is reinstated. This matter is remanded to the trial court for sentencing.

TRAYLOR, Justice, concurs in the result.

      . State v. Macon, 2005-0960 (La.App. 4th Cir.2/1/06), 925 So.2d 618.

      . The trial judge stated: "I think based on everything now that has come in this matter, the interest of justice is such that the defendant at the very least ought to have another trial in this case. And so, I am going to grant the defendant a new trial.”

      . We note that the defendant did not lodge an objection to the court's ruling.

      . State v. Toomer, 395 So.2d 1320, 1328 (1981); State v. Williams, 343 So.2d 1026 (La.1977); State v. D'Ingianni, 217 La. 945, 47 So.2d 731 (1950); State v. White, 207 La. 695, 21 So.2d 877 (1945).

      . La. C. Cr. P. art 858: Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial except for error of law.

      .Because the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only remedy available for that court is the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Fontana, 396 So.2d 1251 (La.1981).

      . See: People v. Valoppi, 61 Mich.App. 470, 233 N.W.2d 41 (1975); People v. Solomos, 83 Cal.App.3d 945, 148 Cal.Rptr. 248 (Cal.App. 1978); United States v. Briddle, 430 F.2d 1335 (8th Cir.1970); Gurleski v. United States, 405 F.2d 253 (5th Cir.1968); People v. Gonzales, 728 P.2d 384 (Colo.App.1986); Commonwealth v. Lowry, 385 Pa.Super. 236, 560 A.2d 781 (1989); State v. Slaughter, 451 So.2d 59 (La.App. 4th Cir.1984); State v. Mitchell, 553 So.2d 915 (La.App. 4th Cir.1989); United States v. Tutiven, 40 F.3d 1 (1st Cir.1994) ("All vehicles bear the public VIN and the federal certification VIN; ninety-five percent bear a confidential VIN. The confidential VIN, which is stamped into the metal of the vehicle, is the most difficult to locate and alter.”).


source: Caselaw Access Project

license: Public Domain

text:
    In re Clifford L. WILLIAMS.
    No. 2007-OB-1127.
    Supreme Court of Louisiana.
    June 13, 2007.
   ORDER

On October 1, 1996, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. Respondent has not been reinstated to practice since that time. Nevertheless, respondent continued to practice law and handled at least seventeen civil and criminal cases during the period of his ineligibility. In 2005, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent arising out of his misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Clifford Lee Williams, Louisiana Bar Roll number 17398, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Clifford Lee Williams for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Clifford Lee Williams shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 07-B-0287 be dismissed as moot.

/s/ Chet D, Traylor Justice, Supreme Court of Louisiana


author: CALOGERO, Chief Justice,

text:
    Jake PALERMO v. The PORT OF NEW ORLEANS, et al. c/w Abraham Veal and Sheila Rochelle Veal.
    No. 2007-C-0363.
    Supreme Court of Louisiana.
    June 13, 2007.
    CALOGERO, C.J., would grant and assign reasons.
    JOHNSON, J., would grant.
   CALOGERO, Chief Justice,

would grant the writ application and assigns reasons.

hi would grant the plaintiffs’ writ application to consider the plaintiffs’ assignments of error. I am especially concerned about the possible abuse of the manifest error rule in the court of appeal’s reversal of the district court’s finding of liability on the part of the ship repair companies. The district court had found that the ship repair companies were liable for plaintiffs’ damages because they failed to warn of dangers of asbestos exposure, failed to segregate their activities from the plaintiffs’ decedents, and failed to provide a safe workplace. Although the court of appeal found evidence that the plaintiffs’ decedents might have been exposed to asbestos because of the fault of the ship repair companies, it reversed the district court’s finding of liability, stating that the record contained no evidence that such exposure was “substantial.” Because I believe that the court of appeal may not have given proper deference to the district court’s factual findings on this issue, I would grant the plaintiffs’ writ to review the evidence on the liability of the ship repair companies.


text:
    STATE of Louisiana In re SPECIAL INVESTIGATION.
    No. 2007-OK-1197.
    Supreme Court of Louisiana.
    June 13, 2007.
    CALOGERO, C.J., dissents in part and assigns reasons.
    KNOLL, J., would grant.
   CALOGERO, Chief Justice,

dissents in part and assigns reasons.

hi dissent in part from the denial of the writ application. I would grant the writ application for the limited purpose of determining whether the applicants should be entitled to have their lawyers present in the grand jury room pursuant to La.Code Crim. Proc. art. 433. In my view, these individuals, who have been charged and arrested, remain subject to prosecution and are therefore “targets” in this grand jury inquiry, irrespective of the district attorney’s assertion to the contrary.


author: PER CURIAM.

text:
    In re Tracy Frazier ROBINSON.
    No. 2007-OB-0027.
    Supreme Court of Louisiana.
    June 15, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Upon review of the Motion to Withdraw Objection filed by the Committee on Bar Admissions, and considering the record of this matter, we conclude petitioner, Tracy Frazier Robinson, is immediately eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    STATE of Louisiana v. Ann Gros PAREDES.
    No. 2006-KP-2412.
    Supreme Court of Louisiana.
    June 15, 2007.
   PER CURIAM.

Granted. The judgment of the court of appeal is vacated and defendant’s conviction for DWI, first offense, is reinstated. The trial judge acted rationally when he concluded that the state proved beyond a reasonable doubt that defendant operated a vehicle while intoxicated based on the videotape depicting her compromised condition and testimony that she admitted consuming Lorcet and Soma within the previous 24 hours. The court was entitled to, and did, take judicial notice that hydro-codone, a Schedule II controlled dangerous substance, is among the active ingredients in Lorcet, R.S. 40:964; La.C.E. art. 201.

CALOGERO, C.J., and KIMBALL and JOHNSON, JJ., would grant and docket.


author: CLARENCE E. McMANUS, Judge.

text:
    Albert A. BECKER v. JEFFERSON PARISH DEPARTMENT OF PARKS & RECREATION.
    No. 07-CA-19.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.
    Russell L. Breckenridge, Amite, Louisiana, for Plaintiff/Appellee.

      Clement P. Donelon, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Jefferson Parish Department of Parks & Recreation (hereinafter “Department”), appeals a judgment of the Personnel Board for the Parish of Jefferson (hereinafter “Personnel Board”) which upheld the hearing officer’s determination reversing plaintiffs termination and reinstating his employment.

The record reflects that, on December 20, 2005, Mr. Becker was employed by the Jefferson Parish Department of Parks & Recreation. He was one of the employees selected to undergo a random drug test. Mr. Becker did not take the test, because he went home sick. After a Pre-Disciplin-ary Hearing on December 28, 2005, Mr. Becker was terminated from employment for violating the Department’s Substance Abuse Policy.

Mr. Becker appealed his termination decision and the Hearing Officer for the Jefferson Parish Personnel Board granted his appeal. The Hearing Officer ordered that Mr. Becker’s employment be reinstated after a seven month suspension without pay, and monthly drug tests, not random, for the next twelve months.

The Department appealed from the Hearing Officer’s decision, and the Personnel Board sustained the decision reinstating Mr. Becker, after amending the | sdecision to eliminate his suspension and the authority to order further drug tests on a nonrandom basis. The Department now appeals to this Court.

In a brief to this Court, the Department argues that the Hearing Officer and the Personnel Board abused their discretion by substituting their judgment for that of the Appointing Authority and the Jefferson Parish Council. The Department further argues that the Personnel Board committed reversible legal error by amending the Hearing Officer’s judgment in favor of Mr. Becker in the absence of an appeal by Mr. Becker.

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215. A dismissal of a civil servant “for cause” is synonymous with legal cause. Adams, supra; Lewis, supra. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Bruno v. Jefferson Parish Library Dept., 04-504 (La.App. 5 Cir. 11/30/04), 890 So.2d 604. Adams, supra.

A public employee may apply to the Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams, supra. The Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. La. R.S. 33:2561, Bruno, supra.

On appeal, this Court should apply the clearly wrong or manifest error rule. Adams, supra. An appellate court review of an administrative disciplinary decision |4is limited to a determination of whether the decision was made in good faith for legal cause; unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. Adams, supra.

Several witnesses testified at the hearing on this matter. Mr. Becker testified that he had been an employee of the Department for twenty-three and one-half years. He had taken drug tests on several occasions in connection with his employment and had passed each one. On December 20, 2005, he was employed by the Department as a Foreman I. His duties were to oversee work crews in beginning and ending tasks, including building and field maintenance. His place of assignment was at the warehouse on Saints Drive, and from there he would report to various locations around Jefferson Parish. As part of his employment, he was required to undergo random drug screenings as provided in the Jefferson Parish Substance Abuse Policy, and had undergone several tests during his employment. Pri- or to this date, he had never refused a drug test. He had been provided with a copy of the Substance Abuse Policy, and was aware of the provisions of that policy. Mr. Becker also testified that he was a diabetic.

On December 20th, he reported to work at Saints Drive. About 45 minutes later, he went to Wally Pontiff Playground with his crew, Maverick Charles and David Swilley, to pick up a piece of equipment (a kiln). Becker testified that he began to feel unwell, with symptoms of dizziness and light headedness, the shakes, and paling of his complexion. He asked one of his crew to drive, but they thought he was kidding, so he drove the parish owned work truck. When the three arrived, there were several other Department employees present at the playground. Becker ordered his crew to “go get that thing”, while he tested his blood sugar, which was high.

1 ¡jBecker’s supervisor, Herbert Robinson arrived at that time, and told them that he was there to pick up three employees, including Becker, for a drug test. Becker told Robinson that he felt ill, and Robinson stated that if he was sick he should go home. Robinson repeated himself and then said that he would call his supervisor, Scott Muhoberac. Robinson contacted Muhoberac by radio, and Becker informed Muhoberac that he felt ill, and was getting ready to go home, to which Muhoberac replied, “Whatever.” Becker interpreted this as permission to go home, which he did. Although Maverick Charles drove him (Becker) from Pontiff Playground to Saints Drive, Becker admitted that he drove himself home from Saints Drive.

When asked whether he told Mr. Robinson that he was concerned about taking the test because his wife smoked, Becker replied no. Becker further testified that he was not concerned about testing positive, and that he did not consider his actions in going home sick as a refusal to take the drug test. He went home because he feared that he would “pass out.” He further stated that he was never told that if he did not take the drug test, he would be fired. After he got home, he received calls from fellow employees warning him that he was going to get fired, so he attempted to call Muhoberac, but he was unable to reach him. He also unsuccessfully attempted to call Fran Robi-chaux, the supervisor of the drug testing program.

Hebert Robinson testified that he was employed by the Department as Foreman II, and that while they both reported to Sam Wiley, he did not have the authority to excuse Becker from the drug test, and that he did not tell Becker that he did not have to take the test. On the date in question, he arrived at Pontiff Playground before Becker, and the other two men. He told Becker and the other two men that they had to take a drug test, and Becker told him that he could not, | ^because he had been around people who smoked, namely his wife. Becker then told him he was going home, and he told Becker that he had to call Scott (Muhobe-rac). Robinson then raised Muhoberac on his radio, and gave the radio to Becker. Robinson denied telling Becker that he should go home, and that he (Robinson) had no knowledge of Becker’s felling badly or sick. Robinson said that after Becker talked to Muhoberac, he then told him he could not take the test because he was ill. Robinson told Maverick to take Becker home because Becker said he was sick. Robinson admitted that when he wrote his statement of events shortly after, he did not mention Becker’s statement that he could not take the test because he was around his wife, who smoked.

Scott Muhoberac testified that he was an Area Coordinator, responsible for overseeing the maintenance and supervisors of the playgrounds and fields in the Eastbank area. He receives the orders for the drug tests, which he then passes on to the appropriate supervisor. He does not have the authority to excuse anyone from taking the drug test. On December 20th, he passed the order for Becker’s test to Robinson, who was in charge in Sam Wiley’s absence. Later, he received a radio call from Becker, telling him that he (Becker) was going home sick. Muhoberac asked Becker if he was serious, and Becker said he was going home. Believing that Becker was joking, he replied “Whatever.” Several minutes later, he called Robinson, who told him that Becker had left. Muhoberac made several attempts to reach Becker, but was unsuccessful. He further testified that Robinson never said anything to him about Becker refusing to take the test because he was around people who smoked. Muhoberac also spoke with Fran Robichaux, who told him that if he got in touch with Becker, to have Becker contact her.

Kevin Aucoin testified that he was the Eastbank Administrator for the Department, responsible for overseeing all the day-to-day operations of the |7Eastbank. He was the Eastbank contact person for the Substance Abuse Policy. (There are three divisions in the Department, namely the Westbank division the Eastbank division and Lafreniere Park.) When the random drug test comes up, Fran Robichaux notifies all three contact people and each is responsible for notifying the appropriate persons. The only time a drug test is cancelled is when someone is out that day. Only Ms. Robichaux can give permission to not take the test.

When Aucoin got the notice for Becker’s drug test, he forwarded it to Muhoberac. It was Muhoberac’s duty to pass the order along to the immediate supervisor, who in this case was Robinson (acting as a supervisor since Wiley was absent.) He did not receive a call from Becker on the date in question. He did receive a call from Mu-hoberac, who told him that he talked to Ms. Robichaux, and also tried to call Becker after he left.

Fran Robichaux testified that she was the Substance Abuse Program Manager for the Human Resources Department of Jefferson Parish. It was her responsibility to oversee the drug testing program. There are training programs covering the ramifications of not taking the drug test that the supervisors are required to attend. According to Ms. Robichaux, the policy provides that if someone does not go for drug testing when directed, he is subject to disciplinary action up to and including discharge. The personnel rules provide that failure to take the test results in termination of employment.

Ms. Robichaux stated that the order for the random drug test originated with her. On that date, she was informed that Becker had gone home sick, and did not show up for the test. She did not authorize him to be excused from the test. Furthermore, Becker’s supervisors did not have the authority to excuse him from taking the test. To her knowledge, no one had ever appealed from a termination of |semployment for failure to take the test before Becker. Ms. Robichaux stated that the ability of an employee to be able to go home alleging that he felt sick would affect the substance abuse policy.

Michael Millican testified that he worked for the Department. He was present at Saints Drive on the morning of December 20th, and was one of the men sent to Pontiff Playground. While at Saints Drive., he noticed that Becker was very pale. Millican drove his own vehicle to Pontiff Playground, and when he got there he saw Becker checking his blood sugar. Robinson came to pick Millican up, along with Becker and Swilley, for the drug test. Robinson told Becker that he looked ill, and he told Becker three times that if he didn’t feel well he needed to go home. Becker asked about the drug test and Robinson said that he would call Muhobe-rac. After Becker talked to Muhoberac, Becker walked back to the truck, and then Maverick drove him back to Saints Drive. Millican testified that he never heard Becker say anything about his wife smoking.

Anthony Corpora testified that he was employed by the Department and he was at Pontiff Playground on December 20th. When Becker got to the playground he checked his sugar level. His mouth was shaking, his complexion was pale and he didn’t look like his normal self. Corpora heard Robinson tell Becker three times that if he was sick he should go home. One of those three times was in response to Becker’s inquiry about the drug test. Robinson also told Becker to call Scott (Muhoberac).

The statements given by David Swilley and Maverick Charles were introduced into evidence at the hearing. Mr. Swilley, in his statement dated December 28, 2005, said that at Saints Drive Becker told him and Maverick that he was not feeling well, and he asked Maverick to drive. They thought he was joking, and told him no. At Pontiff Playground, Becker again told them that he did not Rfeel well. Robinson arrived and told him (Swilley), Becker and Millican that they were being called for the drug test. Then Robinson stated that Becker did not look well, and Becker replied he did not feel well. Robinson told Becker he should go home. Robinson called Scott (Muhoberac) on the radio, and then handed the radio to Becker.

Maverick Charles, in his statement dated January 18, stated that Becker told him he was not feeling well, but he (Maverick) thought he was joking. When they arrived at Pontiff Playground, Maverick saw that Becker had turned pale. He heard Robinson tell Becker that he needed to go home, and then Robinson told him to take Becker to his car.

After the conclusion of testimony, the matter was left open for the introduction of medical records, which were used by the Hearing Officer solely to determine that Mr. Becker did have diabetes.

The Hearing Officer found that Becker had no advance notice of the drug test, and that Becker had diabetes on the date in question. Prior to notice of the drug test, he appeared ill and tested his blood, and then announced that the test was not within the normal limits. Becker asked for permission to go home sick, and received an answer from a second level supervisor that could be perceived as permission to go home. The Hearing Officer then concluded that

Albert A. Becker went home after becoming ill. He appeared ill before he was notified of a drug test. He was authorized to go home by someone who had no real authority to given (sic) him permission and he should have known that his second level supervisor lacked the authority to grant his sick leave request. He must bear some of the responsibility for leaving prior to taking the test.

The Hearing Officer granted Becker’s appeal, and ordered him to resume his duties on July 31, 2006, after a seven month suspension without pay. The Hearing ImOfficer further authorized the Appointing Authority to order a drug test of Becker once a month for the next twelve months, not on a random basis.

The Department requested the Board review the decision. After reviewing the record and hearing the argument of counsel, the Board sustained the Hearing Officer’s ruling, after amending the ruling to eliminate the suspension and the Parish’s authority to order further drug tests on a non random basis, and ordered that Becker’s reinstatement be retroactive to December 30, 2005.

In this appeal, the Department alleges that the Hearing Officer and the Personnel Board abused their discretion by substituting their judgment for that of the Department. The Department further argues that the Personnel Board committed error by amending the Hearing Officer’s judgment in favor of Becker even though Becker did not file an appeal.

The evidence presented showed that plaintiff was ill on the date in question, that he told fellow employees of his illness prior to being informed that he was to take the drug test, and that he went home after being told to do so by his supervisor. The evidence further shows that plaintiff was unaware that his supervisor did not have the authority to send him home once he was scheduled to take the drug test. Furthermore, it appears that the Hearing Officer and Personnel Board found credible plaintiffs testimony that, had he known that he could not be excused from the test, he would have taken it despite his illness. The Hearing Officer, and the Personnel Board, could have determined that the plaintiff went home because he was sick, and not for the purpose of avoiding the drug test, and therefore there was no legal cause for terminating plaintiffs employment, as his conduct in going home did not impair the efficiency of the public service. Based on the record before us, we cannot say that the Personnel Board was manifestly l^erroneous or clearly wrong in sustaining the decision of the Hearing Officer reinstating plaintiffs employment.

Appellant also alleges that the Personnel Board erred in eliminating plaintiffs seven month suspension, because plaintiff did not appeal from the Hearing Officer’s decision. However, Rule II, Section 7.1 of the Jefferson Parish personnel Rules provides in part that

The decision of a referee is subject to review by the Board on any question of law or fact upon the filing of an application for review with the Board within fifteen calendar days after the decision of the referee is rendered.

This rule allows for the review of any issue, not just those raised in the request for review. The Jefferson Parish Personnel Board was charged with the duty of reviewing this case to determine if the Department had good or legal cause for discharging plaintiff and if plaintiffs punishment was commensurate with his dereliction. Bruno v. Jefferson Parish Library Dept., supra. The Board reviewed the record and found that plaintiff committed no action which warranted discipline. Our review finds no manifest error in this determination.

Finally, in plaintiff/appellee’s brief to this Court, plaintiff requests attorney fees. We find no basis to award attorney fees in this matter.

Accordingly, we affirm the decision of the Jefferson Parish Personnel Board, reinstating plaintiffs employment retroactive to the date of December 30, 2005. All costs of this appeal are assessed against appellant.

AFFIRMED.


author: SUSAN M. CHEHARDY, Judge. GUIDRY, J.,

text:
    Darryl PORTER v. PELLERIN CONSTRUCTION COMPANY.
    No. 06-CA-949.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Robert J. Young, III, Metairie, Louisiana, for Plaintiff/Appellee, Darryl Porter.
    Frank R. Whiteley, III, Metairie, Louisiana, for Defendant/Appellant, Pellerin Construction Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| yin this workers’ compensation suit, the employer appeals the judgment finding that the employee met his burden of proving a work-related accident and that the employee had not made fraudulent statements in order to obtain benefits. The employee answered the appeal seeking attorney fees and costs. For the following reasons, we affirm the workers’ compensation judge’s ruling.

Facts

Darryl Porter(“Porter”) was employed by Pellerin Construction Company (“Pelle-rin”) as a carpenter’s helper. On June 30, 2002, Porter fell backward from a ladder and injured his lower back. On July 26, 2002, Porter sought medical treatment for “left hip pain.” On November 21, 2002, Porter sought medical treatment for “left buttock and hip cramping.”

Subsequently, Porter contacted his employer, Pellerin Construction Company and its workers’ compensation insurance carrier, Gray Insurance Company,(hereinafter “defendants”) to request medical treatment for his lower back pain. Defendants began paying workers’ compensation benefits, including | smedieal and indemnity benefits, to Porter. As part of Porter’s benefits, defendants also reimbursed Porter for mileage driven to and from his doctors’ appointments.

Defendants paid weekly indemnity and medical benefits to Porter from the “end of his employment” until May 17, 2004. Defendants terminated all benefits on May 17, 2004 on the basis that Porter had intentionally misrepresented his mileage for the purpose of obtaining additional compensation benefits.

Procedural History

On June 3, 2004, Porter filed a disputed claim for workers’ compensation alleging that defendants terminated his benefits due to an unintentional discrepancy of mileage and dates. Porter subsequently filed a supplemental claim alleging that defendants acted arbitrarily and capriciously in terminating his benefits.

On June 7, 2004, Defendants filed a disputed claim for workers’ compensation alleging that Porter willfully made false statements and misrepresentations to obtain workers’ compensation benefits and requested a forfeiture of workers’ compensation benefits under La. R.S. 23:1208. On July 19, 2004, the claims were consolidated for trial.

On May 16, 2006, trial was held and the matter was taken under advisement. On June 30, 2006, the workers’ compensation judge ruled that Porter suffered a compen-sable injury on June 30, 2002; that Porter was entitled to payment of weekly indemnity benefits of $320.00 from June 30, 2002 and continuing; and that Porter was entitled to payment of temporary total disability benefits, including all medical expenses, medication expenses and transportation expenses for said injury. The judge further ruled that defendants had failed to reasonably controvert Porter’s entitlement to said benefits and were arbitrary and capricious in their termination |4of wage and medical benefits. The judge assessed defendants penalties of $5000.00, and attorney fees of $5000.00.

Defendants appealed. Porter answered the appeal.

On appeal, defendants assign three errors: the workers’ compensation judge erred in refusing to apply La. R.S. 23:1208, where the claimant admits that he submitted incorrect mileage expenses for medical travel; the workers’ compensation judge erred in finding that defendants had been arbitrary and capricious in terminating benefits and awarding penalties and attorney fees; the workers’ compensation judge erred in awarding excessive penalties. In his answer, Porter does not assign error but rather seeks attorney fees and costs.

Analysis

In their first assignment of error, defendants argue that the workers’ compensation judge erred in failing to find that Porter committed fraud by willfully misrepresenting the total mileage for medical travel for the purpose of obtaining workers’ compensation benefits and erred in failing to declare Porter’s entire claim for workers’ compensation benefits forfeited under La. R.S. 28:1208. Defendants specifically contend that the workers’ compensation judge erred in failing to find Porter committed fraud by willfully misrepresenting his total mileage costs based on the evidence presented at trial.

La. R.S. 23:1208 states in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

|,Jn order to establish that a claimant has forfeited his right to workers’ compensation benefits under La. R.S. 23:1208, the employer must show: 1) the claimant made a false statement or misrepresentation; 2) it was willfully made; and 3) it was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12. A workers’ compensation claimant’s willful misrepresentations regarding mileage reimbursement subject him to the forfeiture of his workers’ compensation benefits. St. Bernard Parish Police Jury v. Duplessis, 02-632 (La.12/4/02), 831 So.2d 955, 960.

At trial, defendants introduced depositions from Bryan Thompson, the claims adjuster, and David Jenks, the supervisor and subsequent claims adjuster assigned to Porter’s case. Thompson stated that he reviewed Porter’s mileage reimbursement requests and noticed improprieties. He noted that the mileage reimbursement requests reflected trips of 21 or 22 miles from Porter’s house in Metairie to his doctors in Metairie. Thompson investigated the distances and found that each request was roughly twice the actual mileage. When Porter was notified of the discrepancies, he stated that he thought he might have submitted mileage for an appointment that he did not attend but he was not aware that his mileage estimates were inaccurate.

Porter testified that his mileage was inaccurate because he had used estimates from a log originally prepared by his sister, who took him to his doctors immediately after his injury. Geraldine Thompson, Porter’s sister, testified that she prepared Porter’s first mileage reimbursement request, calculating the mileage from her house in Destrehan to her brother’s house then to the doctor’s offices and back to her brother’s house. She stated that she had taken her brother to his appointments after his injury because he did not have a car at that time. Porter | (¡testified that, when he began driving himself to his appointments, he did not read the mileage on the car’s odometer, because it was broken.

In her ruling, the workers’ compensation judge found that the defendants failed to reasonably controvert the claimant’s entitlement to workers’ compensation benefits. The determination of whether or not a workers’ compensation claimant has forfeited his right to benefits by making a false statement or representation for the purpose of obtaining benefits involves inherently factual determinations and, thus appellate review of the workers’ compensation judge’s findings is governed by the manifest error standard. Distefano v. B & P Const., Inc., 04-0025 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 412.

Factual findings in workers’ compensation cases may not be set aside by an appellate court unless they are manifestly erroneous or clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380. When factual findings are based on determinations of credibility of the witnesses, the trier of fact’s findings are entitled to great deference, because only the fact finder can be aware of the variations in demeanor and tone of voice that bear heavily on the listener’s understanding and belief in what is said. Lirette v. State Farm, Insurance Company, 563 So.2d 850, 852 (La.1990).

At trial, the testimony and evidence revealed that Porter submitted inaccurate claims for mileage reimbursement. Porter offered an explanation for these discrepancies, which the workers’ compensation judge found was credible. The workers’ compensation judge apparently concluded that Porter’s omissions were not willful misrepresentations designed to secure workers’ compensation payments and, thus, forfeiture of benefits was not required. Considering the |7testimony and evidence in this matter, we find no error in that ruling and affirm the judgment of the workers’ compensation judge.

Next, defendants argue that the workers’ compensation judge erred in awarding penalties and attorney fees. It is well settled that a workers’ compensation claimant’s entitlement to benefits is governed by the law in effect at the time of the injury-causing accident. Daugherty v. Domino’s Pizza, 95-1394 (La.5/21/96), 674 So.2d 947, 950, n. 4, citing Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 738. In this case, Porter was injured on June 30, 2002.

At the time of Porter’s accident, La. R.S. 23:1201(F) read, in pertinent part, as follows:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890; Barbarin v. TLC Home Health, 02-1054 (La.App. 5 Cir. 4/29/03), 845 So.2d 1199, 1206. The question is whether the defendant “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time which they refused to |spay all or part of the benefits allegedly owed.” Brown, 721 So.2d at 890; Barbarin, 845 So.2d at 1206.

Further, La. R.S. 23:1201.2., which was later repealed by Acts 2003, No. 1204, effective August 15, 2003, read as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.

The assessment of penalties and attorney fees by the workers’ compensation judge is a factual question which is not to be disturbed on appeal in the absence of manifest error. Barbarin, 845 So.2d at 1206. Awards of penalties and attorney fees in workers’ compensation cases are penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. See Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46.

Defendants argue that the workers’ compensation judge erred in awarding penalties and attorney fees, considering that it terminated Mr. Porter’s benefits after learning of his misstatements in his mileage reimbursement requests. However, we note that David Jenks, a claims adjuster and supervisor for Gray, stated, in his deposition, that he would not have terminated all benefits but rather he would have reduced Mr. Porter’s future mileage reimbursements to account for the discrepancy. After reviewing the record, we cannot say that defendants proved that their actions were reasonable and further find that defendants’ actions were not | warranted under these facts. Thus, we find that the workers’ compensation judge did not commit manifest error in her factual finding that defendants were arbitrary and capricious in terminating Porter’s benefits.

As previously noted, the assessment of penalties and attorney fees by the workers’ compensation judge is a factual question which is not to be disturbed on appeal in the absence of manifest error. Barbarin, 845 So.2d at 1206. Here, the workers’ compensation judge assessed a penalty of $5,000.00, and attorney fees of $5,000.00. We find no abuse in her vast discretion.

Finally, Mr. Porter filed an answer with this Court requesting an increase in attorney fees for the defense of the instant appeal and re-urged his claim in his opposition brief. This court has the inherent authority to review the reasonableness of any attorney fee award. Gravolet v. Board of Commissioners for the Grand Prairie Levee District, 95-2477 (La.App. 4 Cir. 6/12/96), 676 So.2d 199, 206, citing State Dept. of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992). In this case, we decline an award of additional attorney fees.

Conclusion

In sum, we affirm the workers’ compensation judge’s finding that defendants failed to reasonably controvert Porter’s entitlement to workers’ compensation benefits. Further, we affirm the judge’s finding that defendants were arbitrary in their refusal to pay weekly indemnity and medical benefits. Accordingly, the penalty award of $5,000.00 and the attorney fee award of $5,000.00 are affirmed. Costs of this appeal are to be borne by defendants/appellants, Pellerin Construction Company and Gray Insurance Company.

AFFIRMED.

GUIDRY, J., concurs with reasons.

GUIDRY, J.,

concurs with reasons:

b The result obtained in this case would be the same under La. R.S. 23:1201(F) and (I)which were in effect when the payments were discontinued.

      . According to the record, Gray paid medical benefits for Porter that covered two lower back surgeries, which were necessitated by his injury.

      . According to the parties, after their disputed claims were set for trial, Gray agreed to pay benefits from May 27, 2005 until August 8, 2005.


author: SUSAN M. CHEHARDY, Judge.

text:
    Emily Allain SILBERNAGEL v. Eric SILBERNAGEL.
    No. 06-CA-879.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      J. Louis Watkins, III, Attorney at Law, Houma, Louisiana, for Appellant/Appellee, Emily Silbernagel.
    Don C. Gardner, Attorney at Law, Har-ahan, Louisiana, for Appellee/Second Appellant, Eric Silbernagel.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

lain this appeal, Emily Allain Silbernagel and Eric Silbernagel both seek review of judgment rendered in their dispute over custody of their only child, Matthew. After trial, the trial court denied Eric Silber-ganel’s request to designate him as the domiciliary parent. The trial judge also modified the visitation agreement to give each parent physical custody for 7 consecutive days with all other aspects of the original consent decree to remain operative and ordered that Matthew attend St. Louis King of France Catholic School through the end of the 2007 school year. For the reasons that follow, we affirm the judgment of the trial court.

Facts and Procedural History

The parties in this matter, Eric Silber-nagel and Emily Allain Silbernagel, were married on November 15, 1996, and had one child, Matthew, during their marriage. The parties were divorced on January 7, 2004. On July 6, 2004, the parties entered into a consent judgment, which was signed on August 30, 2004. The judgment awarded the parties joint custody of Matthew, with Emily Silbernagel designated as domiciliary parent, subject to specific, regular custodial ^periods to be exercised by each of the parties, with slight modifications of the custodial periods for holidays, birthdays, and summer vacations and subject to Matthew’s attendance at St. Louis King of France Catholic School for the school year ending in 2005. On August 17, 2005, the parties signed a consent judgment partitioning their community property, which left Emily Silbernagel as sole owner of the former family home in Me-tairie.

On August 29, 2005, Hurricane Katrina devastated the Gulf Coast, including Jefferson Parish. Eric Silbernagel took Matthew and evacuated to Baton Rouge, Louisiana, where Eric and his extended family remained for a number of weeks. Emily Silbernagel, due to her employment at Tulane Hospital, was trapped in New Orleans, Louisiana until Friday, September 2, 2005. Thereafter, Emily evacuated to Houma, Louisiana with friends. On Sunday, September 4, 2005, Emily was reunited with Matthew and they returned to Houma. On September 8, 2005, Emily enrolled Matthew in elementary school in Houma, Louisiana. Both parties agree that St. Louis King of France Catholic School had not re-opened at that time. On or about October 10, 2005, St. Louis King of France School re-opened. At the time of trial, Eric had remarried and returned to live in Metairie, Louisiana and Emily remained in Houma, Louisiana.

On October 13, 2005, Eric Silbernagel filed an Emergency Rule for Temporary Change of Physical Custody, seeking designation as domiciliary parent with visitation for Emily Silbernagel every other weekend until she returned to live in Me-tairie, and re-enrollment of Matthew at St. Louis King of France School. Eric Silber-nagel alleged that the change was in Matthew’s best interest because Matthew would be irreparably harmed by his upset regarding “the living conditions in Houma, and the loss of his school and friends.” On or about November 9, 2005, |4the trial judge ordered that Matthew return to St. Louis King of France until both parties agreed to a change of school or the court ordered a change.

On March 6, 2006, Emily Silbernagel filed a Motion and Order for Psychiatric Evaluation of the parties. On March 8, 2006, the State of Louisiana Department of Social Services through the Jefferson Parish District Attorney filed an Ex-Parte Motion and Order to Change the child support payee and transfer the child support award enforcement and modification to the Jefferson Parish Juvenile Court.

Hearings on Eric Silbernagel’s Emergency Rule were completed on April 3, 2006. The trial judge rendered judgment on April 6, 2006, denying Eric Silberna-gel’s request to be designated domiciliary parent; ordering Matthew’s attendance at St. Louis King of France School until the end of the 2007 school year; and changing the visitation schedule to provide each parent with seven consecutive days of physical custody with all other provisions of the original decree to remain operative.

On May 3, 2006, Emily Silbernagel filed a Motion for Appeal, which was granted on May 5, 2006. On May 10, 2006, Eric Sil-bernagel filed a Motion for Appeal, which was granted on May 11, 2006. On May 11, 2006, Eric Silbernagel also filed a Rule for Contempt and Ex-Parte Motion and Order to Return Child Support Award and Enforcement to the district court from juvenile court. After the contempt hearing, the trial judge found Emily in contempt, sentenced her to six months in jail; and ordered her to pay $3,000.00 of Eric Sil-bernagel’s attorney fees as a sanction for allegedly failing to pay her portion of Matthew’s tuition.

On appeal, Eric Silbernagel argues that the trial court erred in failing to designate him as Matthew’s domiciliary parent. On appeal, Emily Silbernagel raises multiple assignments of error: the trial court erred in ordering Matthew’s ^attendance at St. Louis King of France school for the school years 2005-2006 and 2006-2007; the trial court erred in ordering a change in the physical custody schedule; the trial court erred in refusing to allow introduction of evidence at trial, including emails between the parties, evidence prior to the August 30, 2004 consent judgment, and evidence prior to Hurricane Katrina; the trial court erred in denying Emily Silbernagel’s Motion for Psychiatric Evaluation of the parties; the trial court erred in holding Emily Silbernagel in contempt of court; the trial court erred in sentencing Emily Silberna-gel to six months in jail for contempt; and the trial court erred in ordering Emily Silbernagel to pay $3,000.00 of Eric Silber-nagel’s attorney fees as a sanction for allegedly failing to pay her portion of Matthew’s tuition.

Discussion

It is a well recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979)(on rehearing). Every child custody case must be viewed within its own peculiar set of facts. Connelly v. Connelly, 94-0527, p. 4 (La.App. 1 Cir. 10/7/94), 644 So.2d 789, 793. The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738; La. C.C. art. 131.

The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988)(per curiam).

In this case, and as in most child custody cases, the trial court’s determination was based heavily on factual findings. It is well settled that an ^appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

We will first address Eric Silber-nagel’s assignment of error that the trial court erred in refusing to designate him as Matthew’s domiciliary parent. There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and of that needed to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). Evans, 708 So.2d at 738. A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Major v. Major, 02-2131 (La.App. 1 Cir. 2/14/03), 849 So.2d 547, 551. Once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

|7By contrast, a non-considered decree or uncontested decree is one in which no evidence is presented as to the fitness of the parents, such as one that is entered by default, by stipulation or consent of the parties, or is otherwise not contested. Major, 849 So.2d at 552. In cases where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Id. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id.

In the instant case, the underlying custody decree is a stipulated judgment whereby the parties consented to a joint custody arrangement with Emily Silberna-gel as the primary domiciliary parent. Thus, the heavy burden of proof rule enunciated in Bergeron is inapplicable. In order to modify the present custody arrangement, it was Eric Silbernagel’s burden of proof to establish that a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the stipulated judgment on August 30, 2004, and further that the modification proposed by him is in the best interest of the child.

In the present case, Emily Silbernagel moved to Houma, Louisiana, which is an intrastate move within the 150-mile radius established by La. R.S. 9:355.1(4)(b). Major v. Major, 02-2131 (La.App. 1 Cir. 2/14/03), 849 So.2d 547, 551. An intrastate move is not per se a material change of circumstances such that a court may presume that it will materially affect the children’s welfare without further evidence. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, 52; writ denied, 95-1488 (La.9/22/95), 660 So.2d 478.

Is At the hearings on Eric Silbernagel’s Emergency Rule for Temporary Change of Physical Custody, the trial judge heard testimony from Emily Silbernagel; Eric Silbernagel; the maternal grandfather, Nolan Allain; a social worker, Elliott Levine; and Emily Silbernagel’s friend, Laura Ryan.

Emily Silbernagel testified that she had decided to try to sell the family home before the storm because the note was significantly more than she could afford on her salary. Regarding her choice to relocate to Houma, Louisiana in September of 2005, she testified that, after the storm, her home in Jefferson Parish did not have utilities for an extended period of time. She also had available support from close friends in Houma, Louisiana. Further, the school system had returned in Houma and she did not know when Matthew’s school would re-open. She stated that she chose to stay in Houma because the standard of living was better on her salary and she liked the neighborhood and people better.

Nolan Allain testified that his daughter had spoken with him before the storm about her inability to pay the note on the former family home. He also testified that, as far as he knew, Emily Silbernagel was the primary caretaker for Matthew for most of his life. He also testified that Matthew was very attached to his mother and removal from her care would be detrimental to him.

Laura Ryan testified that Emily Silber-nagel and her son, Matthew, stayed with her family for about eight weeks after the storm. She testified that Emily is a friend of her son, Robert. Laura testified that Emily and Matthew lived in two bedrooms inside of her house while her son and his kids lived in a garage-type apartment, which was detached from the house. Laura did not witness any inappropriate contact or behavior by Emily or Robert while any of the children were at the house.

IflEUiott Levine, a licensed social worker, was called by Eric Silbernagel to refute the court-appointed custody evaluators’ report. Levine testified that he had spoken with Matthew on two occasions. He also admitted that he had spoken with Eric Silbernagel on several occasions regarding the custody dispute. He also admitted that he had never spoken with Emily Sil-bernagel. He testified that he felt that based on testimony that he heard that both parents were very loving with Matthew and exhibited good parenting skills. He specifically disagreed, however, with the custody evaluator’s report, which recommended that Emily Silbernagel remain the domiciliary parent even though she had moved to Houma. He stated that, in his opinion, the disruption caused by moving away from the former family home was very significant. Further, he testified that he would disagree with designating the parent that moved 50 miles away from the original home as the domiciliary parent.

In determining the best interest of the child, the trial court considered the twelve non-exclusive factors set forth under La. C.C. art. 134. After reviewing those factors and taking into account the oral testimony presented at the hearing in this matter, the trial judge found that the factors favored maintaining Emily Silbernagel as domiciliary parent.

In sum, the trial court found that Eric Silbernagel failed to meet his required burden of showing that a change of circumstances materially affecting the welfare of his minor child had taken place since the last stipulated judgment, and that the modification proposed by him was in the best interest of the child. We find no error in the trial judge’s ruling.

We turn now to Emily Silberna-gel’s assignments of error. In her first and second assignment of error, Emily Silbernagel argues that Eric Silbernagel failed to present any evidence that proved that Matthew was required to attend St. Louis ImKing of France School in order to meet special needs. We find that Emily Silbernagel’s argument relies on an erroneous interpretation of law.

Here, the parties agreed that Matthew Silbernagel would attend St. Louis King of France School in the original consent judgment. In essence, Emily Silbernagel is essentially moving for a modification of the custody agreement to allow Matthew to attend another school. As discussed above, in order to modify the present custody arrangement, the mover, which, in this instance, would be Emily Silbernagel, bears the burden of proof to establish that a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the stipulated judgment on August 30, 2004, and further that the modification proposed by her is in the Matthew’s best interest.

While Emily Silbernagel presented evidence that she had moved to Houma for financial and personal reasons, we cannot say that it was a change in circumstances that materially affected Matthew’s welfare such that a change in his school was warranted. Further, a child’s successful continuation of his or her education in a proven academic environment is generally found to be in his or her best interest. Campbell v. Campbell, 95-1711, p. 11 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 320. We thus find no error in the trial court’s ruling ordering Matthew’s continued attendance at St. Louis King of France School.

In her third assignment of error, Emily Silbernagel argues that the trial judge erred in modifying the physical custody schedule. Here, the parties agreed to a specific rotation of physical custody of Matthew Silbernagel, which amounted to seven non-consecutive days in every fourteen days. After trial of Eric Silbernagel’s Emergency Rule, the trial judge, in consideration of the factors in La. C.C. art. 131, modified the custody agreement to give physical custody of Matthew Into each party for seven consecutive days, alternating every Friday after school. After reviewing the record, we cannot say that this ruling was in error.

In her fourth, fifth and sixth assignments of error, Emily Silbernagel argued that the trial court erred in refusing to allow introduction of evidence at trial, including emails between the parties, evidence prior to the August 30, 2004 consent judgment, and evidence prior to Hurricane Katrina. Emily Silbernagel did not, however, brief these assignments on appeal. According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Accordingly, we find that these assignments of error have been abandoned by appellant, and will not consider the merits of these allegations. Henry v. Henry, 825 So.2d 548, 552 (La.App. 5 Cir. 6/26/02).

In her seventh assignment of error, Emily Silbernagel argues that the trial court erred in denying her request to require a psychiatric evaluation of the parties. La. R.S. 9:331 provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

Clearly the language of the statute is permissive and not mandatory. The decision of whether a psychological evaluation should be ordered in a custody | ^proceeding lies within the trial court’s discretion. Bourque v. Bourque, 03-1254 (La.App. 5 Cir. 3/30/04), 870 So.2d 1088.

In this case, we find no abuse of the trial court’s discretion in refusing to order psychological evaluations of the parents and child. The parties had previously been evaluated and there was no showing made that psychological issues had developed since the previous evaluation. We find no error in this case in the trial court’s denial of Emily Silbernagel’s request for appointment of a second psychological evaluator.

In her eighth, ninth, and tenth assignments of error, Emily Silbernagel challenges the trial court’s finding of contempt, sentence of six months imprisonment, and order to pay $3,000.00 in attorney fees. We decline to address these assignments of error because the ruling at issue is not properly before us on appeal.

Here, the ruling before us, which both parties properly appealed, is the April 7, 2006 judgment that dealt solely with custody issues. On May 11, 2006, Eric Silbernagel filed a Rule for Contempt, which the trial judge heard and decided on June 13, 2006. In her final assignments of error, Emily Silbernagel attempts to appeal the trial judge’s finding of contempt. The record does not reflect that Emily Silbernagel filed a Motion for Appeal challenging that ruling and, as such, the ruling is not properly before this Court.

In conclusion, we find that the trial court did not err in maintaining Emily Silbernagel as the domiciliary parent, ordering Matthew’s continued attendance at St. Louis King of France school, or denying Emily Silbernagel’s motion for psychiatric evaluation. We also find no error in the trial judge’s modification of the physical custody arrangement to alternating seven-day periods, beginning |1severy Friday, subject to modifications set forth in the original consent judgment for holidays, birthdays, and summer vacations. Accordingly, we affirm each of those rulings. We decline to address the trial court’s finding of contempt with respect to Emily Silber-nagel as it is not properly before this Court. Each party is taxed to pay their own costs of this appeal.

AFFIRMED.

      . Emily Silbernagel's Motion for Appeal, which was filed May 3, 2006, did not seek review of the contempt ruling.


text:
    STATE of Louisiana v. Kirk P. SEVERIN.
    No. 06-KA-906.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Thomas J. Butler, Appellate Counsel, Vincent Paciera, Jr., Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant, Kirk P. Severih.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

laOn October 1, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kirk Severin, with possession of cocaine in violation of La. R.S. 40:967(C). Defendant entered a plea of not guilty on October 4, 2004. Thereafter, defendant filed a motion to suppress evidence, which was denied after a hearing. On May 11, 2006, defendant waived his right to a jury trial and the matter proceeded before the judge. After trial, the judge found defendant guilty as charged and subsequently sentenced him to three years at hard labor.

Facts

According to Officer Gary Gegenheimer of the Gretna Police Department, he had been instructed at the beginning of his shift on September 15, 2004 that law enforcement officials had enacted a curfew in Gretna, Louisiana in response to the threat of Hurricane Ivan. Officer Gegenheimer testified that he and his fellow officers were instructed to strictly enforce the curfew, which was from 6:00 p.m. to 6:00 a.m.

At approximately 11:57 p.m. on September 15, 2004, Officer Gegenheimer was on routine patrol when he observed a man walking near the intersection of [¡Whitney Avenue and Fredericks Avenue. Officer Gegenheimer stopped the man and placed him under arrest for the curfew violation. When Officer Gegenheimer searched defendant incidental to the arrest, the officer discovered three off-white rocks in defendant’s pants pocket, which field-tested positive for cocaine. Defendant was subsequently charged with possession of cocaine.

Argument

In his sole assignment of error, defendant argues that the trial court erred by failing to suppress physical evidence seized after an illegal arrest. Defendant asserts that his arrest was illegal because he was arrested for violating an improperly-enacted curfew. Defendant contends that the State failed to prove the existence of a valid ordinance establishing the hurricane curfew. The State responds that the issue is not whether it established that there was a properly-instituted curfew but whether the police officer had probable cause to arrest defendant.

In determining whether a ruling on a motion to suppress was correct, the reviewing court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at the trial of the case. State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859. Trial courts have great discretion when ruling on a Motion to Suppress. State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). As such, the ruling of a trial court on a Motion to Suppress will not be disturbed absent an abuse of that discretion. Id. at 1179.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. If evidence is 14derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Id. Warrantless searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335-336. The State bears the burden of proving the admissibility of evidence that is seized without a warrant. La. C.Cr.P. art. 703(D); State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574.

Probable cause is required for a warrantless search to fall within the exception of a search incident to arrest. State v. Chauvin, 06-0362 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 759. Probable cause exists when the arresting officer has knowledge of facts and circumstances based upon reasonable and trustworthy information that are sufficient to justify a man of average caution in the belief that the person he is going to arrest has committed or is committing an offense. State v. Flagg, 99-1004, p. 6 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 528, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117.

The authority of local officials to establish an emergency curfew is created by La. R.S. 14:329.6(A), which provides in pertinent part:

A. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any municipality or parish, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding that the public safety is imperiled thereby, the chief executive officer of any political subdivision or the district judge, district attorney, or the sheriff of any parish of this state, or the public safety director of a municipality, may request the governor to proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation by the governor, and during the continuance of such state of emergency, the chief law enforcement officer of the political subdivision affected by the proclamation may, in order to protect life and property and to bring the emergency situation under control, promulgate orders affecting any part or all of the territorial limits of the municipality or parish:
|s(l) Establishing a curfew and prohibiting and/or controlling pedestrian and vehicular traffic, except essential emergency vehicles and personnel.

At trial, the State introduced evidence of the Governor Blanco’s proclamation, dated September 13, 2004, declaring a state of emergency for the entire state in preparation for Hurricane Ivan. The State also introduced the official minutes of the September 15, 2004 Gretna City Council meeting, reflecting Deputy Chief of Police Arthur Lawson’s directive for the City Council to institute a 6:00 p.m. to 6:00 a.m. curfew. At Deputy Chief Lawson’s direction, the City Council enacted an emergency ordinance instituting the hurricane curfew.

In this case, the chief law enforcement officer of Gretna instituted the curfew. Although he had authority to solely institute the curfew and was not required to seek the Gretna Council’s approval, the curfew was ultimately implemented at his request. Thus, the curfew was validly established.

At the suppression hearing, Officer Ge-genheimer testified that he received instructions at the beginning of his shift that the hurricane curfew was to be enforced from 6:00 p.m. to 6:00 a.m. He also testified that he received a copy of the city ordinance pertaining to the curfew at roll call that day. Accordingly, when he observed defendant out on the streets of Gretna around midnight while the curfew was in effect, Officer Gegenheimer had reasonable and trustworthy information to believe that the defendant was committing an offense, namely violating the curfew. Thus, Officer Gegenheimer has probable cause to arrest | ¡¡defendant. After the lawful arrest, Officer Gegenheimer found cocaine in the defendant’s pocket in a search incidental to arrest. We find that the State bore its burden of proving the admissibility of evidence that was seized without a warrant in this case. Therefore, we find no error in the trial court’s denial of defendant’s motion to suppress evidence.

Finally, as is our practice, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920. The review reveals no errors requiring correction in this case.

AFFIRMED.

      . Defendant further argues that the ordinance is invalid for procedural defects. Although defendant argues that a copy of the curfew order was not properly filed in triplicate with the Jefferson Parish clerk of court as required by La. R.S. 14:329.6(C), the statute does not set forth a time period for the filing of the order and defendant did not produce evidence that this ordinance had not been filed. Even assuming the curfew was invalid based on a procedural defect, the search incident to an illegal arrest does not require suppression of the evidence. In Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the United States Supreme Court held that the later invalidity of an ordinance did not undermine the validity of the arrest made for the violation of that ordinance and that the evidence discovered in a search incidental to that arrest should not be suppressed.