text:
    STATE of Louisiana v. Deborah McGEE.
    No. 07-KA-130.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Thomas J. Butler-Appellate Counsel, Thomas Block-Trial Counsel, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Appellee, State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Appellant, Deborah McGee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

bOn October 12, 2005, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Deborah McGee, with looting, a violation of La. R.S. 14:62.5(C). The defendant pled not guilty at arraignment.

On August 16, 2006, after waiving her right to a jury trial, the defendant proceeded to trial before the judge, who found her guilty as charged. On September 22, 2006, the trial judge sentenced the defendant to three years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. This timely appeal follows.

Facts

On August 26, 2005, Governor Kathleen Blanco issued an executive order proclaiming a State of Emergency in Louisiana in anticipation of the impact of Hurricane Katrina. On August 27, 2005, Jefferson Parish President Aaron Broussard declared a State of Emergency in Jefferson Parish in anticipation of the impact of Hurricane Katrina on this area. Following Hurricane Katrina’s landfall on August 29, 2005, law enforcement officers were on patrol in Jefferson Parish.

Is At approximately 5:00 p.m. that day, officers from the Kenner Police Department responded to a call of looting at Brother’s Food Mart at 1227 Veterans Boulevard in Kenner. Officer Ronald Ber-tucci testified that, as he and the other officers arrived at the scene, he noticed the defendant and another person exiting the store through an opening in the front store window, which had been shattered after the plywood had been removed. Officer Bertucci testified that the defendant had two green bottles in one hand and a black plastic bag in the other hand.

Officer Bertucci exited the police vehicle and approached the defendant, who dropped the bag that she was carrying and walked away. When he yelled at her to return, she kept walking and said, “I didn’t do nothing.” The defendant tried to run, which was difficult because of high water in the street. Sergeant Nicholas Huth pursued the defendant on foot and Officer Kenneth Marroccoli pursued them in the police vehicle. Officer Bertucci detained the other person who had exited the store, who was later identified as Michael Smith.

Ultimately, Sergeant Huth apprehended the defendant, who was verbally abusive to him. Sergeant Huth returned the defendant to the scene, where Officer Bertucci positively identified her. Meanwhile, Officer Bertucci observed a third person, later identified as Tyrone Lambert, exiting the store with a bag of items and called for backup.

After apprehending the defendant, the officers determined that the defendant had been carrying two bottles of Heineken beer and at least nine other bottles of alcoholic beverages in the black plastic bag that she dropped when she was confronted. There was no food among the items in the bag the defendant was carrying.

UOffieer Bertucci testified that the defendant said she was not from Kenner. When one of the officers asked her what she was doing there, she claimed that she just came to see if the store was open. She also claimed that she was holding the bag for “Michael.” At trial, Officer Ber-tucci positively identified the defendant as the woman he saw carrying two bottles of beer and a black plastic bag full of alcoholic beverages out of Brother’s Food Store on August 29, 2005. Sergeant Huth positively identified the defendant as the woman whom he apprehended after observing her in front of Brother’s Food Store.

Ahmed Saeed testified that he worked at Brother’s Food Store. Before the hurricane, he boarded it up and evacuated. On the Friday after the storm, he returned to the store and discovered that the store had been looted. Although the store also contained groceries, nothing other than alcohol and tobacco was taken.

At trial, the defendant testified that, pri- or to Hurricane Katrina, she resided at the home she owned in New Orleans. The defendant testified that, before the storm, she was a licensed security officer at the Family Dollar store on Carrollton Avenue. She admitted that she had pled guilty to first-offense driving while intoxicated in 2004.

The defendant testified that, on the afternoon of August 29, 2005, she was standing on a corner on 27th Street in Kenner, about a block away from her sister’s house where she had stayed during the storm, trying to get some fresh air. While she was standing on the corner, she saw a female running and being chased by a police officer on foot. The defendant testified that the officer then approached the defendant, pulled his gun, and ordered the defendant to the ground. The officer asked the defendant if she had seen a woman running, and the defendant answered negatively. Thereafter, the defendant was arrested and taken to jail. According to the defendant, the officer told her she was arrested for a curfew violation. The | .^defendant denied that she entered or took any alcohol from Brother’s Food Store. The defendant claimed that she could not have fled from the officers because her asthma prevents her from strenuous activities, like running.

During the State’s rebuttal, Sergeant Huth testified that he did not lose sight of the defendant from the time he saw her in front of the store until he apprehended her on Tifton Street. He specifically denied that he had been chasing anyone but the defendant or that he told her that she was going to jail for a curfew violation.

After hearing the testimony and reviewing the evidence, the trial judge found the defendant guilty as charged. This appeal follows.

In her sole assignment of error, the defendant argues that the trial court erred by sustaining the State’s objection to the defense’s efforts to impeach the testimony of one of the State’s witnesses. The defendant contends that her right to confrontation was abridged when the trial judge refused to allow her to impeach Officer Bertucci with his prior inconsistent statement. The State responds that the trial judge’s ruling was not an abuse of discretion.

The record reflects that, during the State’s rebuttal, Officer Bertucci testified that the defendant was exiting the store when he first saw her. When defense counsel asked Officer Bertucci, on cross-examination, if he had seen three people exiting the building, Officer Bertucci reiterated that he had seen two people exit the store as the officers arrived at the location and one man exit the store a few minutes later. Defense counsel then showed Officer Bertucci the police report of the incident, which Officer Bertucci denied writing. Although Officer Bertucci acknowledged that he supplied the information regarding the incident to the author of the report, Officer Bertucci testified that he did not write the report and that he could not discern from the handwriting and signature who authored the report.

| (¡When defense counsel asked if the report indicated how many people fled the business, Officer Bertucci testified that the report indicated three people had fled the business, which was accurate. Officer Bertucci repeated that he had seen two people leaving the building when he first drove up then later saw a third man exiting the building while his partners were apprehending the defendant. He acknowledged that the report stated that three people were “fleeing the business,” which was an accurate representation of the entire event. When the defendant asked the officer to read the particular sentence from the report into the record regarding the individuals’ “fleeing” the business, the State objected on the basis of hearsay, since the report was not prepared by the officer. The court sustained the objection.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. art. I, § 16; State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131, 1135. The main purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Id. Cross-examination is the primary means of testing the truthfulness of testimony. Id.

The credibility of a witness may be attacked by any party. La. C.E. art. 607(A). A witness’ prior inconsistent statement may be used to impeach his credibility. See, State v. Johnson, 01-0842 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 115, writ denied, 02-1037 (La.3/21/03), 840 So.2d 532.

La. C.E. art. 607 provides, in pertinent part:

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
|7(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

If the witness has had a fair opportunity “to admit the fact and has failed distinctly to do so,” extrinsic evidence of a prior inconsistent statement is admissible, not to prove the truth of the matter asserted, that is, not for its hearsay content, but to establish the fact of contradiction as a means of impeaching a witness’ general credibility. State v. Owunta, 99-1569 (La.5/26/00), 761 So.2d 528, 529 (per curiam). However, if the witness admits the statement, he has impeached himself by his own testimony and thus, the prior inconsistent statement is inadmissible. State v. Johnson, supra.

On appeal, the defendant does not specify how the trial court’s ruling served to deprive her of her right to confront Officer Bertucci. First, we note that defense counsel questioned Officer Bertucci at length about the number of people that he saw exiting the building during the entire incident, which, he stated, was three. Officer Bertucci also verified that the police report indicated that three people exited the store during this incident. Thus, defense counsel was unable to elicit contradictory testimony from Officer Bertucci.

Further, it is unclear from her arguments at trial or on appeal what additional information she wanted to elicit from Officer Bertucci to impeach him. Importantly, the defendant did not move to introduce the police report into evidence at trial or proffer the document to preserve the record for appeal.

In State v. Albert, 414 So.2d 680, 683-684 (La.1982), the defendant argued on appeal that the trial judge erred in preventing him from impeaching a witness. In that case, the witness admitted his prior statements, which were inconsistent with his trial testimony. The Albert court noted that the defendant had “obtained everything from the witness to which [he] was entitled by law in the way of impeachment — distinct admissions to prior inconsistent statements.”

In the instant case, the defendant achieved all she could accomplish by having Officer Bertucci admit that the report reflected that three people were “fleeing from the business,” whereas he testified that he saw two people walking out of the business as they drove up and one man leaving the store a few minutes later. In this case, the trial judge’s ruling that sustained the State’s objection did not deprive the defendant of her right of confrontation. This assignment of error is without merit.

Finally, as is our practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. We note that there is a conflict between the minute entry of the trial and the transcript of the trial. Here, the transcript reflects the defendant waived her right to a jury trial, whereas the minute entry does not. When there is a conflict between the transcript and the minutes, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983). As such, we remand the matter to have the district court correct the minutes to reflect that the defendant waived her right to a jury trial.

CONVICTION AND SENTENCE AFFIRMED; REMANDED.

      . Co-defendants, Tyrone Lambert and Michael Smith, were charged in the same bill of information. Neither of the co-defendants, however, were tried with the defendant nor are they parties to this appeal.

      . The testimony of Sergeant Huth and Officer Marroccoli was substantially the same as Officer Bertucci’s testimony except neither Huth nor Marroccoli saw the defendant exit the store.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Rose Dove EGLE v. John M. EGLE.
    No. 2006-1550.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2007.

      Walter C. Thompson, Jr., Nicholas D. Doucet, Jan K. Frankowski, Barkley & Thompson, L.C., New Orleans, LA, Bob F. Wright, James Parkerson Roy, Domen-geaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiffs/Appellees Rose Dove Egle, et al.
    H. Alston Johnson, III, Thomas H. Kig-gans, Michelle F. Plauché, Phelps Dunbar LLP, Baton Rouge, LA, for Defendant/Appellant Smith International, Inc.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

I,We revisit this case on appeal by Smith International, Inc. from a judgment on the merits rendered against it in connection with its purchase of a business owned in part by trusts set up for the benefit of the three children of John and Rose Egle. For the following reasons, we reverse the trial court judgment and render judgment in favor of Smith International, Inc., dismissing the plaintiffs’ demands at their costs.

DISCUSSION OF THE RECORD

This appeal represents at least the fourth time that an issue in these proceedings has been presented to this court for our review; our court has published three opinions regarding various aspects of the litigation. See Egle v. Egle, 00-1759 (La.App. 3 Cir. 6/6/01), 787 So.2d 567, writ denied, 01-2002 (La.10/26/01), 799 So.2d 1155; Egle v. Egle, 01-927 (La.App. 3 Cir. 2/6/02), 817 So.2d 136; Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. Because these prior opinions include an exhaustive recitation of the complicated and lengthy factual and procedural history of this litigation, we reference them for a more complete history of the litigation and limit our recitation of the facts and procedural issues to the basics needed for an understanding of the matter now before us. Suffice it to say that this aspect of the litigation involves an attempt to recover, on behalf of the three previously mentioned trusts, a greater portion of the proceeds of the sale of Tri-Tech Fishing Services, L.L.C. (Tri-Tech), an oilfield service limited liability company, to Smith International, Inc. (Smith International).

This litigation began as a community property dispute between Mr. and Mrs. Egle, and this phase of the dispute has as its roots a business transaction which began to develop in March of 1993, or over one year before the Egle children’s trusts were formed. At that time, Ray Daugherty and three other individuals formed TriState | ¡/Technologies, Inc. (Tri-State), an oilfield fishing and tool rental business. While Tri-State was successful, it initially suffered cash flow problems, and it was then that Mr. Egle, who was Mr. Daugherty’s neighbor, became involved. After some initial negotiations, Mr. Egle and the owners of Tri-State, acting primarily through Mr. Daugherty, agreed to join Tri-State with a yet-to-be-formed limited liability company which would provide the needed operating capital for the business operation.

The final agreement provided for TriState and the contemplated limited liability company to form a third legal entity with both having an equal ownership interest in the new company. Additionally, the agreement provided that Mr. Daugherty would have a twenty-five percent interest in the limited liability company to be formed by Mr. Egle, and that Glenn Dau-terive would have a twelve percent interest. Mr. Dauterive had no interest in TriState, but was at the time employed by a Houston, Texas company. Mr. Dauterive was offered an ownership interest by Mr. Egle and Mr. Daugherty because of his sales expertise.

To comply with his part of the merger agreement, Mr. Egle, together with his wife, formed three trusts for the benefit of their minor children, Michelle, John Jr., and Lauren. The Egles funded the three trusts with just under $1,000,000.00, divided equally among the three trusts. Of that total, $20,000.00 to each trust represented donations and the remainder represented loans to the trusts, evidenced by promissory notes to Mr. Egle. As explained by Albert Ajubita, a New Orleans, Louisiana attorney specializing in trusts, estate planning, and tax related matters, who provided the legal services for the formation of the trusts, the $20,000.00 to each trust represented the maximum tax-free donation the Egles could give to their children |swithin the time period when the trusts were formed. The trust documents appointed Mr. Egle’s sister and brother, Janet E. Harrison and Don M. Egle, as co-trustees of each trust.

The three trusts came into existence on April 19, 1994, and on the next day, the co-trustees executed Articles of Organization for The Egle Group L.L.C. (The Egle Group), the limited liability company contemplated in the agreement with TriState. The Initial Report filed with the Louisiana Secretary of State identified Janet E. Harrison and Don M. Egle, in their capacity as co-trustees of the three trusts, as its initial managers. Mr. Ajubita provided legal services for the organization of this legal entity as well, and confirmed through his testimony that a primary purpose for forming The Egle Group was to make available a vehicle for Mr. Egle to use the trusts’ money for investment purposes without sustaining individual tax liability. Specifically, while the trusts would own The Egle Group, Mr. Egle was to make the investment decisions.

On the same day it was created, subscription agreements were executed wherein each trust acquired an ownership interest in The Egle Group. Pursuant to these subscription agreements, John Jr.’s trust received a 29.34 percent interest in exchange for the payment of $44,010.00, and the other two trusts received a 29.33 percent interest each in exchange for individual payments of $43,995.00. Prior to that time, on April 14, 1994, the co-trustees had executed a subscription agreement on behalf of The Egle Group wherein it transferred to Mr. Dauterive a twelve percent interest in the yet-to-be-formed limited liability company in exchange for a purchase price of $18,000.00. The subscription agreement described The Egle Group as a Llimited liability company already in existence and further stated that Mr. Dauterive paid the purchase price “simultaneously with the execution of [the] agreement.”

On October 1, 1994, the co-trustees and Mr. Dauterive executed The Egle Group’s operating agreement. With regard to ownership, Section 1.1 of the Operating Agreement reads as follows:

Don M. Egle and Janet E. Harrison, as Trustees for The Egle Trust for Michelle A. Egle, The Egle Trust for John M. Egle, Jr., and the Egle Trust for Lauren E. Egle (the “Organizers”), have acted as organizers to form a Louisiana limited liability company under the laws of the State of Louisiana by the filing of Article of Organization (the “Articles”) for The Egle Group, L.L.C. (the “Company”), pursuant to the Louisiana Limited Liability Company Law, La. R.S. 12:1301 et seq., on behalf of The Egle Trust for Michelle A. Egle, The Egle Trust for John M. Egle, Jr., The Egle Trust for Lauren E. Egle, Glen [sic] Dauterive, and any and all additional and/or substituted Members under Sections 2.8 and 6.4 hereof (hereinafter referred to collectively as the “Members”).

An exhibit attached to the Operating Agreement listed the percentage of ownership and the initial capital paid by each member to be as follows: The Egle Trust for Michelle A. Egle — 29.33 percent with a cash capital contribution of $43,995.00; The Egle Trust for John M. Egle, Jr.— 29.34 percent with a cash capital contribution of $44,010.00; The Egle Trust for Lauren E. Egle — 29.33 percent with a cash capital contribution of $43,995.00; and Glenn Dauterive — twelve percent with a cash capital contribution of $18,000.00.

Mr. Daugherty’s ownership interest in The Egle Group is evidenced by three subscription agreements, dated October 6, 1994, wherein the three trusts transferred to him a total ownership interest of twenty-five percent for the total purchase price of $37,500.00. The subscription documents state that Mr. Daugherty made the ^appropriate payments to each trust contemporaneously with the execution of the agreements.

Thus, on October 6, 1994, the records of The Egle Group indicated that the agreement reached by Mr. Egle, Mr. Daugherty, and Mr. Dauterive concerning ownership of The Egle Group had been completely consummated. That is to say, Mr. Dauterive owned a twelve percent interest and Mr. Daugherty owned a twenty-five percent interest in the limited liability company. Based on the stated capital contributions, each entity owning an interest in The Egle Group had paid $1,500.00 per percentage point of ownership interest.

The formation of the third business entity, as contemplated by the initial agreement, occurred even before the agreed-upon ownership of The Egle Group was documented. On June 1, 1994, The Egle Group and Tri-State, as equal co-owners, formed Tri-Tech. As previously contemplated, the funds assuring the operation of Tri-Tech came about in the form of loans from the three trusts.

Through the financial backing of the three trusts and the operation and sales skills of Mr. Daugherty and Mr. Dauterive, Tri-Tech became an extremely successful business. So successful that on April 16, 1997, or less than three years after its creation, Smith International purchased Tri-Tech from The Egle Group and TriState for $20,000,000.00. The proceeds of the sale were placed in an escrow account and ultimately disbursed pursuant to a written agreement submitted to the escrow agent by Tri-State, The Egle Group, Tri-Tech, and the three trusts. The net proceeds due The Egle Group were divided among the then record owners as follows: the three trusts — sixty-three percent, or twenty-one percent each; Mr. Daugherty — twenty-five percent; and Mr. Dauterive — twelve percent. After settlement expenses were | (¡deducted, the three trusts received $5,874,486.81 ($1,958,162.27 for each trust), Mr. Daugherty received $2,273,240.30, and Mr. Dauterive received $1,096,163.55 as their shares of the net proceeds of the sale. Additionally, each trust received $187,713.33 from settlement expenses as repayment of the funds borrowed by The Egle Group to fund TriTech operations.

After the trusts had received the proceeds of the sale, and after all relationships associated with the Tri-Tech venture had been severed, Mr. Egle borrowed from the children’s trusts, made some new and obviously poor financial decisions using the borrowed funds, and ultimately declared personal bankruptcy. He was unable to repay the children’s trusts any significant amount through the bankruptcy proceedings. According to Don M. Egle, when Mr. Egle declared bankruptcy, he still owed each of the trusts approximately $800,000.00. When the original co-trustees were replaced, each trust had a balance of approximately $167,333.33.

During the initial phases of the community property litigation, Mrs. Egle began to gather evidence concerning Mr. Egle’s misappropriation and/or misuse of the children’s trust funds. She filed suit individually and as tutrix of the minor children in an effort to recoup some of the loss occasioned by Mr. Egle’s activities. The defendants in the suit ultimately included Mr. Egle, the original co-trustees, The Egle Group, Tri-State, Tri-Tech, Mr. Dau-terive, Mr. Daugherty, and Smith International. During the course of the litigation, the original co-trustees were replaced and the newly appointed trustee intervened in the litigation, joining forces with Mrs. Egle. When Michelle and John Jr. reached the age of majority, they were substituted as parties plaintiff (hereinafter Mrs. Egle, the trustee, Michelle, and John Jr. will be |7collectively referred to as the plaintiffs). When this matter finally went to trial, Smith International was the only remaining defendant.

At the trial on the merits, the plaintiffs did not contest the validity of the sale of Tri-Tech to Smith International or the sufficiency of the purchase price. Instead, they argued that the ownership interests of Mr. Daugherty and Mr. Dauterive in The Egle Group arose from fraudulent acts, that Tri-Tech should have paid the proceeds from the sale to Smith International represented by those ownership interests to the children’s trusts, and that Smith International is responsible for the acts or omissions of Tri-Tech.

After completion of the evidence, a jury returned a verdict wherein it determined that (1) the sales of the interests in The Egle Group to Mr. Daugherty and Mr. Dauterive were not valid, (2) Tri-Tech misappropriated or conspired in the misappropriation of the interests in The Egle Group when portions of the proceeds of the sale of Tri-Tech were paid to Mr. Daugherty and Mr. Dauterive instead of the trusts, (3) Tri-Tech committed or conspired to commit fraud when the proceeds of the sale of Tri-Tech were paid to Mr. Daugherty and Mr. Dauterive instead of the trusts, (4) Smith International was the successor to Tri-Tech, and (5) Smith International did not act in good faith in purchasing Tri-Tech.

On June 1, 2004, the trial court executed a written judgment in accordance with the jury’s verdict. In doing so, it rendered judgment in favor of the plaintiffs, and against Smith International, in the amount of $3,468,919.29. Thereafter, on June 15, 2004, Smith International filed a motion seeking a judgment notwithstanding the jury’s verdict (JNOV), a remittitur, or a new trial. Based on the subsequent action of the trial court with regard to those motions, Smith International then appealed the Is June 1, 2004 judgment, and the plaintiffs answered the appeal. This court dismissed the appeal for lack of jurisdiction by an opinion rendered February 8, 2006. Egle, 923 So.2d 780. The trial court then denied Smith International’s pending motions, and Smith International again appealed. This appeal is now properly before us.

OPINION

In its four assignments of error, Smith International asserts that the trial court erred in denying its motion for JNOV because (1) the jury erred in concluding that the sales of the interests to Mr. Daugherty and Mr. Dauterive were invalid because they purchased their interests in The Egle Group through credit transactions rather than cash, (2) the trial court erred in concluding that Smith International was liable for the conduct of Tri-Tech, (3) the trial court erred in concluding that Mrs. Egle’s release of the other defendants did not entitle Smith International to a full release, and (4) the trial court erred in denying Smith International’s request that all of the defendants be included on the jury verdict form for the purpose of allocation of fault. The plaintiffs have answered the appeal, requesting an increase in the amount of judicial interest awarded. Because we find merit in Smith International’s first assignment of error, we pretermit addressing Smith International’s remaining assignments of error as well as the plaintiffs’ answer to the appeal, as the issues presented therein are rendered moot by our decision.

Standard of Review

The supreme court, in Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99, recently reasserted the criteria to be used in evaluating the granting or rejection of a JNOV.

La.Code Crv. PROC. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge | flmay grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3 Cir.1987).

In reviewing a trial court’s decision on whether or not to grant a JNOV, the appellate court must determine if the trial court erred in granting or denying the JNOV “by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict?” Id. If the answer to that question is in the affirmative, then the motion should have been granted. If not, it should be rejected. Id.

Analysis of Transactions Involving Mr. Dauterive and Mr. Daugherty

The record before us establishes without question that, despite the language of the subscription agreements, neither Mr. Dau-terive nor Mr. Daugherty paid the stated purchase price contemporaneously with their execution. The plaintiffs argued at trial, and on appeal, that this failure on the part of Mr. Dauterive and Mr. Daugherty rendered the transfers invalid. Thus, they argue, the net thirty-seven percent profit paid to the two men should have been paid to the three trusts. The jury obviously |inagreed with this argument, and, in considering the JNOV, the trial court declined to disturb the jury’s decision. In its first assignment of error, Smith International asserts that the jury’s finding in this respect, as well as the trial court’s denial of the JNOV, was error. We find merit in this assignment of error.

Applicable Law

“Contracts have the effect of law for the parties.... ” La.Civ.Code art. 1983. The subscription agreements at issue in this phase of the litigation specifically provide for simultaneous payment of the purchase price by both Mr. Dauterive and Mr. Daugherty, which did not occur. But “[a]n obligation may be valid even though its cause is not expressed.” La.Civ.Code art. 1969. Moreover, “[wjhen the expression of a cause in a contractual obligation is untrue, the obligation is still effective if a valid cause can be shown.” La.Civ.Code art. 1970. See Coffee Bay Investors, L.L.C. v. W.O.G.C. Co., 03-406 (La.App. 1 Cir. 4/2/04), 878 So.2d 665, writ denied, 04-1084 (La.6/25/04), 876 So.2d 838. While the subscription agreements expressed the cause as being cash exchanged at the time of the transfer, the obligations were nevertheless effective if there was valid consideration given. As stated in La.R.S. 12:1321, “[t]he contribution of a member to a limited liability company may take the form of cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services.”

Dauterive Transaction

The April 14, 1994 subscription agreement between The Egle Group and Mr. Dauterive provides in part as follows:

The Egle Group, L.L.C. offers and Glen [sic] Dauterive ' accepts, acquires and subscribes to a twelve (12%) percent interest in The Egle Group, L.L.C. for a total price of $18,000, and in payment thereof, Glen | n[sic] Dauterive agrees to pay The Egle Group, L.L.C. said subscription price, in full, simultaneously with the execution of this agreement.

While Mr. Dauterive did not directly pay $18,000.00 to The Egle Group on April 14, 1994, it is not correct that Mr. Dauterive did not pay for his interest, or that the trusts never received credit for his payment.

The day he executed the subscription agreement, Mr. Dauterive also executed a promissory note in the amount of $18,000.00, made payable to Mr. Egle. Mr. Dauterive did not receive cash from Mr. Egle for this note. Rather, the three trusts each received a credit on the amount that they owed Mr. Egle. In fact, it would have been impossible for Mr. Dau-terive to comply with the subscription agreement by paying The Egle Group, because it did not yet exist as a legal entity. Instead, he made arrangements for his interest to be paid for through a credit transaction with the one person everyone agrees was the one most responsible for the financial arrangements of The Egle Group.

The credit transaction is further evidenced by the ledger entries prepared by the trusts’ accountants in May of 1995. These ledger entries establish that on April 7, 1994 each trust owed $147,000.00 to John Egle, and that each trust’s debt was reduced by $6,000.00 on April 14, 1994 because Mr. Dauterive had assumed that portion of the trusts’ debts to Mr. Egle. Additionally, the ledger entries reflect that on April 19, 1994, an initial deposit of $150,249.00 was made to The Egle Group from the three trusts. This initial deposit was the capital contribution for the three trusts and Mr. Dauterive. Finally, the escrow disbursement records of the proceeds of the sale to Smith International reflect that Mr. Dauterive’s share was reduced by $22,157.74. That amount was in turn paid to Mr. Egle as payment in full of the balance due on the $18,000.00 promissory note.

1,¾Daugherty Transaction

The October 6, 1994 subscription agreements between the trusts and Mr. Daugherty provided in part as follows for each trust:

Daugherty by these presents hereby purchases and Trust hereby sells its interest in and to an 8.33% interest in The Egle Group, L.L.C. for the sum of Twelve Thousand Five Hundred ($12,-500) Dollars. Trust hereby acknowledges receipt of cash in the amount of $12,500, and grants full acquittance and discharge therefor.

On that same day the four existing members of The Egle Group, Mr. Dauterive and the three trusts, executed a “unanimous consent of members” approving of the sale, pursuant to La.R.S. 12:1332(A)(1).

With regard to the purported $37,500.00 cash payment, Mr. Daugherty testified that on October 6, 1994, he also executed a $37,500.00 promissory note made payable to Mr. Egle. According to Mr. Daugherty, Mr. Egle agreed to loan him the money needed to purchase the ownership interest. Although he received no money from Mr. Egle on that day to pay the trusts, the aforementioned ledger entries reflect that trusts each received a credit of $12,500.00 on the amount each owed Mr. Egle. Mr. Egle executed a partial release for each of the trusts on October 6, 1994, recognizing that each trust had made a payment of $12,500.00 on the April 20, 1994 loans of $63,583.33 to each trust. The disbursement agreement for the initial installment of the proceeds from the sale of Tri-State to Smith International shows that. Mr. Daugherty’s share of the proceeds from the Egle Group — $1,618,828.12—was | ^reduced by $46,166.95 to discharge his obligations under the $37,500.00 note to Mr. Egle.

Part of the problem with Mr. Daugherty’s acquisition is that on April 21, 1995, or six months after the original transactions involving his ownership acquisition, Mr. Daugherty received a $37,500.00 check from Mr. Egle with instructions for him to write checks to each of the trusts for $12,500.00. After Mr. Daugherty had complied with Mr. Egle’s instructions and transferred the money to the three trusts, the trusts then transferred the money back to Mr. Egle. According to Mr. Daugherty, Mr. Egle told him the transaction was necessary to document the original transaction wherein he acquired his ownership interest. However, Bert Verdi-gets, a certified public accountant and certified fraud examiner who testified for the plaintiffs, said that “[i]t was money that went from the trusts, to Mr. Egle; to Mr. Daugherty, back to the trusts, and then Mr. Egle got the money.” Mr. Verdigets saw the transaction as a highly suspicious “round robin” transaction with Mr. Egle being the recipient of funds which should have remained in the trusts.

While the second transaction was at best unorthodox, it had no effect on the final financial result. Simply stated, the trusts had previously been given credit for Mr. Daugherty’s payment by Mr. Egle’s partial forgiveness of the debt owed him by the trusts. The record does not reflect whether Mr. Egle credited the second transaction as a payment against what the trusts owed him or characterized it in another way. In any event, once he made the three payments to the trusts pursuant to Mr. Egle’s instructions, Mr. Daugherty had no control over the actions of the trusts in again transferring the funds back to Mr. Egle.

11Summary

The plaintiffs’ primary argument with regard to the validity of the transfers to Mr. Dauterive and Mr. Daugherty rests upon the fact that they acquired their ownership interests by credit transactions with Mr. Egle wherein he gave the trusts credit for amounts owned him in exchange for promissory notes from the two men — despite the clear language of the subscription agreements to the effect that the two men paid cash for their interests. We find that this discrepancy in the language of the subscription agreements did not affect the validity of the subscription agreements.

The agreement giving rise to the TriTech venture clearly included the understanding that both Mr. Dauterive and Mr. Daugherty would have an ownership interest in what was ultimately to become The Egle Group. Both Mr. Daugherty and Mr. Dauterive testified that they would not have entered into the Tri-Tech venture without receiving an ownership interest in The Egle Group. According to Mr. Dau-terive, when recruited by Mr. Egle and Mr. Daugherty, he was servicing over 160 accounts for his former employer and brought two-thirds of those customers with him to Tri-Tech. Without an ownership interest in The Egle Group, Mr. Dauterive would not have left his Houston, Texas employment. Similarly, Mr. Daugherty testified that Mr. Egle had to increase his offer of ownership in Tri-Tech from twelve and one-half percent to twenty-five percent because he was having second thoughts about pursuing the joint venture if his ownership share was limited to the smaller figure.

The record is clear that, while expecting to participate in the ownership of The Egle Group, neither Mr. Dauterive nor Mr. Daugherty had excess funds to invest. In fact, the very purpose of The Egle Group was to make operating funds available to |1Rensure the success of the business. All five of the members of The Egle Group— Mr. Dauterive, Mr. Daugherty, and the three trusts — paid for their interests in the Egle Group with money loaned by Mr. Egle. All five members gave Mr. Egle promissory notes to evidence the loans, and all of the loans associated with the joint venture were recognized and extinguished through the final disbursement process.

When the trusts formed The Egle Group, they obviously knew about, and approved of, the participation of Mr. Dau-terive and Mr. Daugherty in that limited liability company — and each co-owner paid exactly the same amount per ownership unit. For their investment of $132,000.00, the trusts received a net profit of $6,437,626.80 in less than three years. This windfall came about primarily through the sales and operations expertise of Mr. Dauterive and Mr. Daugherty.

Certainly better use of language and better timing of the activities associated with the initial formation of The Egle Group could have precluded this conflict. However, the record contains no evidence of fraudulent conduct of any person with regard to the organization, management, operation, or sale of Tri-Tech. While Mr. Dauterive and Mr. Daugherty did not pay cash for their acquired interests in The Egle Group, they did give valid consideration for their interests. Coffee Bay Investors, 878 So.2d 665. The facts and inferences point so strongly and overwhelmingly in favor of Smith International with regard to this issue that reasonable persons could not arrive at a contrary verdict. Joseph, 772 So.2d 94. That being the case, the jury erred in declaring the sales to Mr. Dauterive and Mr. Daugherty to be invalid and the trial court erred in not granting the JNOV.

^DISPOSITION

For the foregoing reasons, we reverse the trial court judgment in favor of the plaintiffs and against Smith International, Inc. and render judgment in favor of Smith International, Inc., dismissing the plaintiffs’ demands at their' costs.

REVERSED AND RENDERED.

      . Each trust received loans totaling $313,716.99 in four increments: $63,583.33 on April 20, 1994; $83,467.00 on May 27, 1994; $83,333.33 on June 20, 1995; and $83,333.33 on June 12, 1995.

      . The co-trustees acknowledged that they abandoned any authority they may have had in regard to investment decisions to their brother.

      . The trusts for Michell and Lauren transferred an 8.33 percent interest while John Jr.’s trust transferred an 8.34 percent interest.

      . Don M. Egle was still co-trustee at the time of the bankruptcy filing.

      . The subscription agreement involving the trust for John Jr. provided for the sale of an 8.34% interest.

      . La.R.S. 12:1332(A)(1) provides:
      An assignee of an interest in a limited liability company shall not become a member or participate in the management of the limited liability company unless the other members unanimously consent in writing.

      . Mr. Egle’s actions after the fact with regard to misappropriation and/or misuse of trust funds is not relevant to the issue before us as there is no evidence that any person or entity associated with the Tri-Tech venture played a part in that activity.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    Ora LOMAX v. ERNEST MORIAL CONVENTION CENTER, The City of New Orleans, New Orleans Public Facility Management, Inc., and The State of Louisiana.
    No. 2007-CA-0092.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2007.

      Darryl Harrison, Bernard L. Charbon-net, Jr., Law Office of Bernard L. Char-bonnet, Jr., and Madro Bandaries, Madro Bandaries, P.L.C., New Orleans, Louisiana, for Plaintiff/Appellant, Ora Lomax.
    Shawn Lindsay, Heather M. Valliant, Assistant City Attorneys, Charlene C. Larche, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Penya M. Moses-Fields, City Attorney, New Orleans, LA, for The City of New Orleans.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

11 This case involves injuries sustained by the plaintiff, Ora Lomax, when she fell on a sidewalk owned by the defendant, the City of New Orleans (the “City”). Ms. Lomax is appealing a summary judgment dismissing her claim against the City.

FACTS AND PROCEDURAL HISTORY

In July of 2001, Ms. Lomax attended a convention at the Ernest Morial Convention Center in New Orleans. After she left the convention center, she tripped and fell on the sidewalk in the 900 block of Convention Center Boulevard, which is the street in front of the convention center. As a result of her fall, Ms. Lomax sustained serious injuries, which included a broken hip that required two hip replacement operations.

Ms. Lomax originally filed suit against the convention center, the company that manages the convention center, the State of Louisiana, and the City. Because the City owned the sidewalk where Ms. Lomax was injured, the claims against the Pother defendants were dismissed by summary judgments that they filed. Those summary judgments were not appealed.

The City also filed a motion for summary judgment. The summary judgment was granted in its favor, and Ms. Lomax is now appealing that judgment.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of | smaterial fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignment of Error

Ms. Lomax has raised a single assignment of error. She contends that the trial court erred in granting the City’s motion for summary judgment. She bases her contention on the fact that she did not have sufficient time to conduct discovery and, therefore, was unable to show that the City had constructive notice that the sidewalk where she fell was defective.

La. R.S. 9:2800(C) and (D) provide in relevant part:

C. [N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

La. Civil Code art. 2317 provides in relevant part that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our custody.”

To carry the burden of proof in connection with the summary judgment under La. Civil code art. 966, the City, as the moving party in the summary judgment, was required to present a prima facie case that it had neither actual nor constructive notice of the defect in the sidewalk where Ms. Lomax fell. The City presented an affidavit of Marvin Thompson, an employee of the City’s Department |4of Public Works, stating that he had determined from the public records of the City that there was no “documentation of any complaints, repairs, or maintenance of the alleged location of the accident prior to the subject case.” The affidavit further stated that “it was determined that there was no prior notice of any condition which was defective at the location of the accident.”

After the City’s affidavit was presented, it was incumbent upon Ms. Lomax to present countervailing evidence to defeat the City’s motion for summary judgment. This was not done.

In fact, in a deposition given by Ms. Lomax, she stated the following regarding the area where she fell:

It was a brick because when I was walking it looked all right. I didn’t have any — it was no hole or anything because from being in New Orleans before, I always sort of like watched where I walk because the streets are not that good.

When Ms. Lomax was asked whether the brick gave way when she stepped on it, she testified at her deposition that it “gave way” underneath her. She further stated that the area where the brick gave way “looked normal” before she stepped on it and that the brick “gave way” underneath her foot but did not itself fall apart.

Based on the affidavit presented by the City and the deposition testimony of Ms. Lomax, summary judgment in favor of the City was proper. There was no evidence whatsoever that the City had any notice of a defect in the sidewalk where Ms. Lomax fell. To the contrary, even Ms. Lomax, who was looking at the brick when she stepped on it, did not notice anything unusual about the brick that “gave way.” Ms. Lomax suffered an unfortunate accident, but the City bears no legal responsibility for the accident.

|fiWe do not find any merit in the argument by Ms. Lomax that she did not have sufficient time to conduct discovery that would demonstrate that the City had notice of the defective condition of the sidewalk. Suit was filed in the instant case in July of 2002. Therefore Ms. Lomax had sufficient time to conduct discovery.

DECREE

We find no error in the trial court judgment. The judgment is hereby affirmed.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Michael R. PALMER.
    No. 2006-KA-1375.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 18, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Defendant-Appellant Michael R. Palmer appeals his conviction for attempted possession of heroin and sentence to forty months at hard labor. We affirm.

FACTS

On November 4, 2003, the State charged Defendant-Appellant Michael Palmer with one count of simple possession of heroin. At his arraignment on December 8, 2003, while represented by counsel, he pled not guilty. The court heard a motion to suppress the evidence on March 26, 2004. On April 12, 2004, Appellant sent a three-page letter to the court requesting that he be allowed to represent himself. On May 28, 2004, Appellant drafted another letter to the court, reiterating his wish to represent himself. On June 4, 2004, the court granted |aAppellant’s motion to represent himself with his counsel as co-chair. Appellant filed a handwritten motion to dismiss with the court on June 13, 2004. The hearing on the motion to suppress the evidence was resumed on July 23, 2004, and concluded on September 21, 2004. On October 1, 2004, the court found probable cause to hold Appellant for trial and denied his motion to suppress the evidence. Appellant filed a pro se writ seeking relief from these rulings, which this Court denied. State v. Palmer, unpub. 2004-1866 (La.App. 4 Cir. 11/12/04), 870 So.2d 651, 2004 WL 878023.

On April 20, 2005, at the conclusion of a two-day trial, a jury found him guilty of attempted simple possession of heroin. Appellant subsequently filed a pro se motion for appeal on May 12, 2005. On August 3, 2005 the court sentenced Appellant to serve forty months at hard labor. This appeal followed.

DISCUSSION

A. Errors Patent

A review of the record reveals there are no patent errors.

B. Assignment of Error

By his sole assignment of error, Appellant contends that the trial court erred by allowing him to represent himself without first ascertaining that he knowingly and voluntarily waived his right to counsel. In his initial brief, counsel for Appellant asserted that the trial transcript did not establish that the trial court advised Appellant of the consequences of waiving counsel and representing himself. This Court subsequently obtained the transcript of the hearing where the court ruled that the appellant could represent himself. Counsel for Appellant filed a reply brief to the State’s brief which acknowledges this earlier hearing, but still insists that the record does not show an adequate warning of the perils of self-representation that would render his waiver knowing.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the U.S. Supreme Court noted that, although a defendant has a right to counsel at trial, counsel cannot be forced on a defendant if he or she waives that right:

It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him.... The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan, J., concurring). (footnote omitted)

Faretta, 422 U.S. at 834, 95 S.Ct. at 2540-2541.

To effectively waive the right to counsel, however, a defendant must clearly and unequivocally assert his right to self-representation, and the trial court must determine that this waiver was knowingly and intelligently made on a case-by-ease basis given the facts and circumstances of the particular case. Id.; State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108; State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877; State v. Gauthier, 2005-1365 (La.App. 4 Cir. 9/27/06), 4941 So.2d 642. Moreover, a defendant’s technical knowledge of the law and the eventual outcome of his self-representation are not determinative of whether a defendant was competent to waive counsel. Godiniz v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Gauthier, supra. Likewise, as the Louisiana Supreme Court noted in State v. Santos, 99-1897, pp. 203 (La.9/15/00), 770 So.2d 319, 321 (emphasis added):

Nevertheless, despite the potential impact an accused’s waiver of counsel may have on the fairness of the proceedings, Faretta made clear that the accused’s “technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” Faretta, 422 U.S. at 836, 95 S.Ct. at 2541; see also Martinez [v. Court of Appeal of California, Fourth Appellate District], 528 U.S. [152] at 165, 120 S.Ct. [684] at 693, 145 L.Ed.2d 597 (Scalia, J., concurring) (“That asserting the right of self-representation may often, or even usually, work to the defendant’s disadvantage is no more remarkable-and no more a basis for withdrawing the right-than is the fact that proceeding without counsel in custodial interrogation, or confessing to the crime, usually works to the defendant’s disadvantage. Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.”). A trial judge confronted with an accused’s unequivocal request to represent himself need determine only whether the accused is competent to waive counsel and is “voluntarily exercising his informed free will.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. In this Iscontext, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993) (footnote omitted).

Thus, there is no “inflexible criteria or a magic word formula” that a trial court must use to determine whether a defendant has knowingly waived his right to counsel. See, e.g., State v. Stevison, 97-3122, p. 2 (La.10/30/98), 721 So.2d 843, 845; see also State v. Simmons, 2005-1462 (La.3/17/06), 924 So.2d 137. Instead, the record must show that the court advised the defendant of the dangers and disadvantages of self-representation to confirm “ ‘that he knows what he is doing and his choice is made with his eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). See also State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1.

In State v. Marts, 98-0099 (La.App. 4 Cir. 5/31/00), 765 So.2d 438, a case with similar facts, the defendant represented himself both at trial and on appeal. Nonetheless, the defendant alleged on appeal that his conviction must be reversed because there was no valid waiver of his right to counsel. The trial court initially rejected the defendant’s invocation of his right to represent himself when he asserted this right at his arraignment; however, the defendant convinced the court that he had successfully represented himself in other cases. On August 2, 2005, the court explicitly cautioned the defendant regarding the possible maximum sentence he could receive if convicted, and the defendant threatened to take writs on the | tissue if the court denied his request. The court ultimately granted the request, but appointed an indigent defender to assist him.

On appeal, the defendant argued that his waiver of counsel was not knowing because the court failed to question him concerning his background, age, and education and failed to advise him fully about the problems with self-representation. This Court rejected his claim, citing Stevi-son’s holding that there are no specific criteria that a court must use to establish that a defendant’s waiver was knowing. This Court further noted that the defendant unequivocally invoked his right to self-representation from the outset of the case, and he persisted in his invocation even after the trial court repeatedly cautioned him with regard to the problems associated with representing himself. Accordingly, this court found that the defendant’s waiver of his right to counsel was valid and knowing despite the fact that the trial court did not “engage in a detailed colloquy regarding self-representation.” Id. at p. 7, 765 So.2d at 442-443.

In this case, nearly a year before trial, Appellant sent a letter to the trial court expressing his wish to represent himself. In his correspondence, he detailed his attempts to contact his attorney with information and questions that he thought were relevant to the issue of the motion to suppress the evidence and to his innocence. He also included correspondence that he sent to counsel raising his concerns, and he further indicated that he had previously sent counsel an eight-page letter detailing inconsistencies in the police reports and other information that he believed counsel should bring out at the motion hearing. As mentioned previously, Appellant also indicated that he had successfully represented himself in unrelated criminal matters in the past.

|7At the motion hearing on June 4, 2004, Appellant invoked his right to represent himself. The court acknowledged the correspondence Appellant had sent and his right to represent himself. The court then stated: “I can only caution you or advise you that you should avail yourself of court appointed counsel. But it’s your wish you are saying to represent yourself?” The Appellant replied that it was. The court then indicated that it would grant his motion, but also appointed counsel to assist Appellant should he have any questions or need legal advice. Appellant did not object to this appointment of co-counsel.

As in the cases cited above, Appellant in this case unequivocally invoked his right to self-representation. The court explicitly cautioned him regarding not taking advantage of appointed counsel, yet Appellant insists that this waiver of counsel was not made knowingly because the trial court did not inquire into his age, background, and education. Pursuant to Stevison, Gauthier, and Marts, however, a trial court is not required to determine a defendant’s age, background or education to establish that a waiver of counsel was knowingly made. We find that in this case, the record demonstrates that Appellant explicitly and repeatedly invoked his right to self-representation, both verbally and in writing, and that the trial court did not err by meeting this demand and appointing counsel to assist him. Therefore, we find that this assignment of error is without merit.

The appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Three other defendants were charged in the same bill with various offenses. Two of them, Kevin Roig and Joseph Connell, eventually pled guilty and were duly sentenced. They are not a party to this appeal. The third, Frederick Warren, was tried with Palmer and found guilty of attempted possession of heroin and attempted distribution of heroin. He was sentenced long after Palmer, and his appeal has been lodged in this court, 2007-KA-0115.

      . The court continued the remainder of the hearing pending testimony from two officers.

      . Appellant stated in his letter that "I must bring to your attention some facts in my decision to dismiss my attorney and represent myself.” Appellant went on to list various examples of his dissatisfaction with his attorney's performance. Notably, Appellant also asserted that "[w]hile not an attorney, I have represented myself in other criminal matters and have litigated and won lawsuits in the pro se capacity so, I feel competent to represent myself in this case.” (emphasis added).

      .Appellant's May 28, 2004 letter to the court began: "This letter is to notify you of my decision and wishes to waive appointed counsel and proceed pro se.”

      . Cert. den. Leger v. Louisiana, - U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). In Leger, the defendant announced shortly before trial that he wanted to represent himself. When the court inquired about the defendant’s training and education and if the defendant knew the consequences of representing himself, the defendant indicated that he did, but he insisted that counsel was not asking questions that the defendant thought needed to be asked. The court then appointed the defendant as co-counsel. On review, the Court noted that the defendant’s request was not an unequivocal assertion of his right to waive counsel, but rather it was a request to allow him to become co-counsel, which request the trial court granted.

      . In Bridgewater, the Court upheld the trial court's denial of the defendant’s request to represent himself, noting that the request was not unequivocal in that it appeared he vacillated between waiving counsel altogether and asking that other counsel be appointed because the defendant was dissatisfied with the trial strategy present counsel was employing.

      . In Gauthier, this Court also found that the trial court did not err by allowing the defendant to represent himself. The record reflected that the defendant represented himself with the assistance of counsel, and on at least two occasions the trial court established that this arrangement was agreeable to the defendant. On the second occasion, just before the beginning of trial, the court again urged the defendant to allow his counsel to handle the trial, but the defendant resisted, noting that counsel was assisting him. This court held that although the colloquies in the record did not cover the defendant’s age, education, or background, they were sufficient to show that the defendant knowingly invoked his right to self-representation.

      . In Santos, the defendant requested to represent himself because he believed that all of the indigent defenders in the parish were acting in concert with the police. The trial court denied the request, and on appeal in an unpublished opinion, this Court affirmed, State v. Santos, unpub. 97-1893 (La.App. 4 Cir. 5/19/99), 744 So.2d 24, 1999 WL 5009711. On review, the Louisiana Supreme Court reversed, finding that the defendant affirmatively invoked his right to self-representation. The Court noted that the trial court erred by focusing on the level of the defendant's technical skills (or lack thereof), the standard for measuring competence of counsel. The Court found that the defendant was competent to waive counsel and unequivocally did so. The Court further noted that the trial court could have assigned an attorney as co-counsel or could have even terminated the invocation of the right to self-representation if the circumstances of the case subsequently required the assistance of counsel.

      . In Brown, the defendant complained on appeal that the trial court violated his right to self-representation because the court appointed counsel to assist him in his representation. The Court rejected this claim, noting that the defendant’s request for self-representation was really a request that he be allowed to ask questions that his counsel would not ask; thus, the appointment of counsel to assist him fulfilled his request.


author: GORBATY, Judge.

text:
    Francis ROUSSELLE v. MURPHY EXPLORATION & PRODUCTION COMPANY.
    No. 2007-CA-0125.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 18, 2007.

      George B. Recile, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, L.L.P., Metairie, LA, for Plaintiff/Appellant.
    Walter W. Christy, Suzanne M. Risey, Frilot Partridge, L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR.)
   GORBATY, Judge.

Lin this appeal, Frances Rousselle argues that the trial judge erred in granting the defendant’s motion for summary judgment and dismissing his age discrimination lawsuit. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Rousselle was hired as a production draftsman at Ocean Drilling and Exploration Company (“ODECO”) in 1981. While employed with ODECO, Rousselle was the only draftsman in the production department. During 1991, Murphy Exploration & Production Company (“Murphy”) acquired ODECO, and Rousselle began working for Murphy. Shortly before this • transition, Carroll Hebert was hired as a draftsman to work in the production department. Hebert previously worked for Chevron Oil performing the same functions for which Rousselle was responsible at ODECO, including piping and mapping platforms, and he had substantial experience in AutoCAD computer generated work at the time of his hire by Murphy.

In early 1999, Murphy determined that a reduction in force (“RIF”) was necessary. The RIF would involve a voluntary retirement program followed by involuntary RIF terminations. Vay Carboni, Vice President of Production, was ^instructed to reduce his staff to the minimum number necessary to maintain current operations. At the time Carboni chose employees for the RIF, he believed, based upon Murphy’s prior RIFs, that a retirement package would be offered to employees over 50. However, Carboni considered Rousselle for termination before he was told about the retirement package, because he determined that two draftsmen would not be necessary to maintain current operations in his department.

Ultimately, Rousselle, age 52, was terminated. Rousselle filed suit under the Louisiana Age Discrimination in Employment Act (“LADEA”), La. R.S. 23:311 et seq., claiming that Murphy illegally used age as a determinative influence in its decision-making process. Murphy filed a motion for summary judgment, which was granted. Rousselle’s Motion for New Trial was denied. Rousselle subsequently filed this appeal.

DISCUSSION

Summary judgments are reviewed de novo, under the same criteria that govern a trial court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 2001-1136 (La.11/28/01), 800 So.2d 783.

Rousselle asserts three assignments of error. First, the trial court erred in concluding that no question of material fact existed as to whether age was a motivating factor in Murphy’s decision to terminate Rousselle. Next, the trial court erred in making a judicial determination of subjective facts, such as motive, intent, good faith, or knowledge. Finally, Rousselle argues that the trial court erred in concluding that no question of material fact existed as to pretext. These assignments of error will be addressed together.

LADEA, similar to the federal Age Discrimination in Employment Act (“ADEA”), provides in pertinent part:

| ¾A- It is unlawful for an employer to engage in any of the following practices:
(1) Fail or refuse to hire, or to discharge, any individual or otherwise discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment because of the individual’s age.

The elements of a prima facie case of age discrimination may vary depending upon the facts of a particular case. In a reduction-in-force case, the plaintiff, in order to establish a prima facie case and create a presumption of intentional discrimination, must (1) show that he is a member of the protected class, ie. over forty years of age, and that he has been discharged, demoted, or otherwise adversely affected by the employer’s decision; (2) show that he was qualified to assume another position at the time of the adverse employment action; and (3) produce “evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” Williams v. General Motors Corp., 656 F.2d 120, 129 (5 Cir.1981), cert. den’d, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982).

Once the employee has established his prima facie case, the defendant can rebut the presumption of intentional discrimination by offering “some legitimate, nondiscriminatory reason” for his action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207.

Carboni stated that he tried to find another draftsman position for Rousselle, but there simply were no openings to meet Rousselle’s qualifications. Carboni’s department employed two people in the position of draftsman. The RIF required the elimination of one of those positions. Car-boni inquired if the Geological Department, the other department that utilized draftsmen, could employ Rousselle, but there was no opening for a draftsman there. Thus, at the time Rousselle was terminated, there were no other available positions in the company for which he |4was qualified. Rousselle did not present any evidence refuting Carboni’s testimony on this issue, and he has never identified any positions that he was qualified to assume. As such, Rousselle cannot prove the second element of his case against Murphy, and his prima facie case fails.

Additionally, Rousselle failed to present any evidence, circumstantial or direct, that showed Murphy intended to discriminate against him when it terminated his employment. This final factor requires a plaintiff to produce some evidence that an employer has not treated age neutrally, but has discriminated based upon it. Williams, supra., 656 F.2d at 129-30. To satisfy this factor, the evidence must show that the defendant consciously refused to consider retaining or relocating the plaintiff because of his age, or that the defendant regarded age as a negative factor in such consideration. Id. at 130.

Rousselle presented no such evidence. Carboni testified that in making his decision, he relied on the annual pay raise recommendations and ratings of Rousselle and Hebert made by their direct supervisor, Tony Murkowski, and the conversations he had with Murkowski concerning the two over the years. • Based upon this information, Carboni understood that Hebert was a better performing employee than Rousselle and was better equipped for the draftsman job. Knowing that his department would keep but one draftsman, Carboni retained Hebert, who, at age forty-one, was himself in the protected age group, and terminated Rousselle.

Rousselle claims that Carboni used age-related criteria because he created a list segregating employees. The evidence showed that Carboni had a list of employees in his department that noted who was over age fifty, as well as who was female and who was a minority. Carboni stated that the list was to determine the | ¡¡effects of potential cutbacks in connection with the RIF and to consider which employees might leave if early retirement packages were offered.

In Roberson v. Alltel Information Services, 373 F.3d 647 (5th Cir.2004), the court granted summary judgment, finding that the decision maker’s RIF list was based upon objective criteria and not upon plaintiffs race, gender, or age. The court further determined that the plaintiff failed to offer any evidence that the ultimate decision maker relied upon impermissible criteria when creating the list. Similarly, in Whitt v. Lockheed Martin Utility Services, Inc., 209 F.Supp.2d 787 (S.D.Ohio 2002), the court held that a list of employees containing information about employees’ age, race, and gender was not evidence of age discrimination. Nor was the existence of a column labeled “pension status” sufficient to create a genuine issue of material fact concerning whether the employer intentionally discriminated against the plaintiff because of his age.

In the case at bar, Carboni’s list provided him with an opportunity to evaluate how his department would appear after the cutbacks. The majority of Carboni’s work force, like the majority of Murphy’s work force, was in the protected age group. If the anticipated early retirement program for those over 50 was implemented as in the past, this could impact his available work force and was, as he testified, simply a piece of information he noted. The only person over fifty terminated was Rousselle. In fact, Carboni retained fifty-three year old Patricia Rousselle and laid off twenty-four year old Jodi Canadas. Plaintiff has not refuted Carboni’s testimony as to the purpose of the list, and he has failed to prove pretext. Rousselle has proffered no evidence other than his subjective beliefs, and he has failed to show that the actual reason for his termination was discriminatory. He has failed to establish a prima facie case of intentional discrimination. As such, |fiwe find that no genuine issue of material fact exists, and hold that the motion for summary judgment was properly granted.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: JAMES F. McKAY III, Judge. ARMSTRONG, C.J.,

text:
    STATE of Louisiana in the Interest of R.G.
    No. 2006-CA-1625.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 18, 2007.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Patsy A. Randall, Assistant District Attorney of Orleans Parish, Juvenile Division, New Orleans, Louisiana, for Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. MeKAY III, Judge LEON A. CANNIZZARO JR.).
   JAMES F. McKAY III, Judge.

hThe State appeals the November 14, 2006 judgment of the trial court denying its request for a continuance and dismissing the case under Louisiana Children’s Code Article 877, with prejudice. We agree with the State, find that the trial court abused its discretion in refusing to grant the State’s motion for continuance, reverse the judgment of the trial court, and reinstate the petition.

This case in not driven by the underlying facts but by the procedural issues that the state forwards in this appeal. It suffices to say that on December 5, 2005, the minor defendant, R.G., allegedly sixteen (16) years old, was arrested for alleged curfew violation and drug law violations, to wit possession of marijuana with intent to distribute. La. R.S. 40:966(A)(1).

li>On March 24, 2006, the State filed a petition to have R.G. declared delinquent as defined in La. Ch. C. art 804(3). An initial hearing was held on April 18, 2006. Both the mother and R.G. failed to appear at this hearing; warrants were issued for both. However, later that day the defendant and his mother made an appearance in court, the trial court recalled the warrants and set a trial date of May 30, 2006. R.G. remained released from custody. On May 30, 2006, the State requested a continuance as the wrong police officer was noticed and the criminalist report was received that same day. Also at the hearing on May 30, 2006, counsel for the defendant requested a continuance as both the defendant and his mother were out of town; both the State and the defendant continuance was granted, and the trial was reset for August 1, 2006. The trial court, on its own motion, continued the trial until August 30, 2006. On August 30, 2006, the defendant requested another continuance to hire a private attorney. This defense continuance was granted and a new trial date was set for September 29, 2006. The trial court continued this trial date on its own motion and reset the trial for November 14, 2006. On that date the State requested a continuance as Officer Lusk, the arresting officer, was ill. The trial court denied the continuance and dismissed the case for failure to prosecute the case within ninety (90) days, pursuant to La. Ch.C. art. 877. R.G. was not in custody throughout all of the above proceedings.

ASSIGNMENT OF ERROR

In its sole assignment of error the State asserts that the trial court erred in denying the State’s motion for continuance despite the State demonstrating good cause for the continuance.

The State appeals the trial court judgment, arguing that the trial court abused its discretion when it dismissed the petition under Louisiana Children’s Code | o.article 876. Children’s Code Article 876 states, in pertinent part, that “[f]or good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner.” In this case, the trial court dismissed the petition on its own motion. “Good cause” is determined on a case-by-case basis and must be fully supported in the record. State In Interest of M.B., 97-0524, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147. The Juvenile Court is vested with broad discretion in determining whether a case should be dismissed for good cause. State ex rel. T.N., 2000-1593 (La.App. 4 Cir. 5/23/01), 789 So.2d 73.

The trial court made it clear that the State’s continuances warranted good cause for dismissing the case with prejudice as the State was not prepared to go to trial on November 14, 2006. However, as gleaned from the transcript, it is clear that the State informed the court that Office Lusk was sick with the flu but that if necessary, as he was subpoenaed to appear that day, he would come to court. The trial court rejected this offer as it considered that the case had been called and that the State was not ready for trial. The transcript of the hearing is revealing and leads this Court to draw a different interpretation of what transpired. It is obvious that the trial judge did not solely base his judgment on art. 877 but also on the fact that he did not want to subject himself to the “flu”. “.And I don’t want him sitting next to me, I wouldn’t no more want him sitting next to me with a flu than I would if he’d been on a heart machine or some other life preserving machine ...” This is a clear abuse of discretion. Coupled with the number of both defense continuances and the court continuances, for unknown reasons, we cannot conclude that there was clear cause to dismiss the matter with prejudice. To the contrary the State has proven that there was clear cause for the delay in the prosecution of this matter.

|4R.G. was arrested on December 5, 2005. As outlined above, the State moved to have R.G. declared delinquent on March 24, 2006. The April 18, 2006 continuance can be attributed to the defendant. The May 30, 2006 continuance may on its face appear to be a joint continuance but let it be noted that the defendant was not in court. The August 1, 2006 continuance was on the trial court’s- own motion, with no reasons given in the record. The August 30, 2006 continuance is attributable to the defendant. The September 29, 2006 continuance was upon the trial court’s own motion, with no reasons given in the record. It does not appear that the numerous delays in the trial can be solely attributed to the State. The State was willing to go to trial on November 14, 2006, but the trial court was unreasonable in not granting the State a reasonable time to get the police officer into court. Fear of exposure to the “flu” virus is not cause to dismiss the case. Conversely, it is abundantly clear that the State has established that there was just cause for delay of the prosecution.

Furthermore, in the case sub judice, R.G. is charged with violation of La. R.S. 40:966(A)(1), which carries a penalty of not less than five years not more than thirty years at hard labor and may in addition be required to pay a fine of not more than fifty thousand dollars. This is not a minor infraction of the law.

For the above and foregoing reasons we reverse the judgment of the trial court, reinstate the petition and remand the matter for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs in the result.

ARMSTRONG, C.J.,

concurring.

1,1 respectfully concur in the result reached by the majority.

      . Art. 877. Adjudication hearing; time limitations
      A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
      B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
      C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
      D. For good cause, the court may extend such period.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Michael THIGPEN, Appellant.
    No. 42,320-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Carey J. Ellis, III, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   MOORE, J.

11 Following his guilty plea (with reservation of rights) to drugs and weapons charges, Michael Thigpen appeals the denial of his motion to suppress all evidence seized in the search of the pickup truck in which he was riding. We affirm.

Evidence on the Motion to Suppress

Only one witness, Deputy Brandon Fleming of the Richland Parish Sheriffs Office, testified at the hearing on the motion to suppress. He was patrolling Hwy. 137, just south of Rayville, Louisiana, around 11:30 p.m. on August 26, 2005, when he saw a northbound Chevy extended-cab pickup cross the highway’s fog line three times. He estimated it crossed the line about one-half the truck’s width, so he pulled it over and asked the driver to step out. The driver handed him a driver’s license identifying him as Ryan Lary. Deputy Fleming thought Lary appeared very nervous and hesitant to answer any questions; also, he could not produce his vehicle registration. He asked Lary to stand near the rear of the truck while he went to speak to the passenger.

The passenger told Deputy Fleming that he had no ID but said his name was Michael Thigpen. While speaking to Thig-pen, the deputy noticed a spray-painted, five-gallon butane tank and some hoses on the rear seat of the extended cab, and a syringe in the cup holder of the front seat. In his experience investigating methamphetamine cases, he had seen spray-painted butane tanks used to steal anhydrous ammonia. He also testified that two other deputies, Joel Williams and Perry Fleming, had been investigating the suspected theft of anhydrous ammonia from a farm about a mile away and |2had developed Thigpen as a suspect. Deputy Fleming was also aware of Thigpen’s criminal history, which included burglaries and a weapons charge. With this knowledge and his observation of the things in the truck, Dep. Fleming called for backup and placed the two men under arrest.

Conducting a search incident to arrest, Dep. Fleming felt what he believed to be bullets in Thigpen’s front right pocket. He also found a machete tucked between the passenger seat and center console. He placed both men in handcuffs and, with Lary’s consent, searched the truck. In addition to the butane tank, hoses and syringe, he found a .32 caliber Beretta handgun in the pocket of the passenger side door. He also found coffee filters, which he testified could be used in the manufacture of methamphetamine. Finally, he testified that when Thigpen was booked into the detention center, his pockets contained five .32 caliber bullets.

Thigpen was charged by bill of information with conspiracy to manufacture methamphetamine, theft of anhydrous ammonia and possession of a firearm by a convicted felon. He filed a motion to suppress all evidence seized in the search of the truck. After a hearing in August 2006, the district court denied the motion.

Thigpen then entered an agreement with the state whereby he pled guilty to conspiracy to manufacture methamphetamine and possession of a firearm by a convicted felon, reserving his right to challenge the ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In exchange, the state agreed to concurrent sentences of 15 years on each count; to dismiss the charge of theft of anhydrous ammonia; and not to | .¡charge Thigpen as an habitual offender. The district court accepted the guilty plea and sentenced Thigpen in accordance with the agreement. This appeal followed.

Discussion

By one assignment of error, Thigpen urges the district court erred in denying his motion to suppress. He contends that immediately after the stop and verbal exchange between the deputy and the driver of the truck, there was no rationale for reasonable suspicion of separate illegal activity on either the part of the driver or the defendant. Specifically, Deputy Fleming admitted that drivers are normally nervous when pulled over for traffic offenses; he also did not know the driver, or whether his speech pattern included stuttering. Further, the syringe was clean (a lab test showed it contained no controlled dangerous substances) and butane tanks have legitimate purposes other than stealing anhydrous ammonia. He concludes that these facts do not create a particularized and objective basis for suspecting him of criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).

The state responds that under the totality of the circumstances, each step of the stop and search was reasonable: Deputy Fleming had a legitimate reason to stop the truck for repeatedly weaving halfway out of its lane; the driver’s nervous and unresponsive conduct warranted him in approaching the truck and questioning the passenger. Most importantly, the items in plain view, together with the deputy’s knowledge of Thigpen’s | criminal history, provided a particularized basis to search the truck. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330.

Thigpen does not contend that Dep. Fleming lacked an objectively reasonable basis for initially stopping Lary’s truck. Weaving over the fog line provided such a basis. State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053; State v. Durke, 2003-3174 (La.10/14/04), 885 So.2d 513.

Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passenger out of the vehicle for his own safety and that of the occupants. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); State v. Benoit, 2001-2712 (La.5/14/02), 817 So.2d 11. An officer’s request for identification from the passenger of a vehicle stopped for a traffic violation does not impermissibly infringe on his right to privacy. State v. Landry, 588 So.2d 345 (La.1991).

The officer may lawfully arrest a person without a warrant when he has “reasonable cause” (understood to be probable cause) to believe that the person to be arrested has committed an offense. La. C. Cr. P. art. 213. Probable cause exists “when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in belief that the accused has committed an offense.” State v. Parker, 2006-0053 (La.6/16/06), 931 So.2d 353. All the information in the possession of the officer is to be considered in determining whether probable cause existed. State v. Buckley, 426 So.2d 103 (La.1983). The quantity and quality of evidence needed for probable cause are measured by lesser standards than those for conviction of |5the defendant at trial. Brinegar v. United States, 838 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Buckley, supra.

Once he has effected a lawful custodial arrest of the occupants of a vehicle, the officer may search the passenger compartment of the vehicle as a contemporaneous incident of arrest. Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Canezaro, 2007-0688 (La.6/1/07), 957 So.2d 136.

After the initial lawful stop, Deputy Fleming questioned the driver, finding him nervous and unresponsive. His decision to ask the passenger for identification was a de minimis intrusion that did not imper-missibly infringe on Thigpen’s right to privacy. Maryland v. Wilson, supra; State v. Landry, supra.

Deputy Fleming recognized the butane tank and rubber hose as items commonly used to steal anhydrous ammonia for the manufacture of methamphetamine. Another court has already noted that these items are often put to that purpose. State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016. Although they have obvious legal uses, the combination of facts known to Deputy Fleming fully warranted his suspicion that they were meant for an illegal enterprise. The driver’s nervousness, the late hour, the close proximity to a farm where anhydrous ammonia had recently been stolen, and Thigpen’s name as a suspect in that offense, all created probable cause to arrest him for attempted theft of anhydrous ammonia or conspiracy to manufacture methamphetamine. The subsequent search incident to the arrest was plainly valid. State v. Canezaro, supra. The | ^district court did not err in denying the motion to suppress.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the convictions and sentences are affirmed.

AFFIRMED.