source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Quennin URSIN v. Preston WEBB, Gwaltney Bear Swamp Trucking, Inc., and ABC Insurance Company.
    No. 06-CA-280.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Steven M. Lozes, Lozes and Ponder, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    James M. Dill, Attorney at Law, Lafayette, Louisiana, for DefendanVAppellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

| ^Defendant, Gwaltney Smith of Smith-field, Ltd., a Division of Smithfield, Inc., appeals from a summary judgment granted in favor of third-party defendant, Lancer Insurance Company (“Lancer”), on the issue of whether an insurance policy underwritten by Lancer provided coverage to defendant, Preston Webb, for acts giving rise to the instant suit. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 18, 2004, plaintiff, Quennin Ursin (“Ursin”), filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Preston Webb (‘Webb”), Gwaltney Smith of Smithfield, Ltd. (“Gwaltney”), Bear Swamp Trucking Inc., and ABC Insurance Company, alleging that defendants were jointly liable for injuries that he sustained while working at a loading dock in Jefferson, Louisiana on March 18, 2003.

| oOn the date alleged in the petition, Webb was the driver of a truck that delivered deli meat products from Gwaltney’s plant to the Winn-Dixie warehouse located in the Elmwood Industrial Park. Ursin worked at the Winn-Dixie warehouse as a “lumper,” a position which entails unloading freight. Ursin claims that he was in the process of unloading a truck in bay 49, when Webb mistakenly pushed the button to close that door instead of the door to bay 48, where his own truck was parked. Ursin claims that the door to bay 49 struck him on the back, thereby causing him injury.

On October 18, 2004, Gwaltney filed third-party demands against Webb and Lancer, alleging that Webb was an independent contractor and that Lancer issued a liability insurance policy on Webb that was in effect at the time of Ursin’s alleged injuries.

On February 28, 2005, Lancer filed a Motion for Summary Judgment, which asserted that its liability policy on Webb did not provide coverage, as Webb’s alleged actions in closing the wrong door did not “arise out of the ownership, maintenance or use of an automobile.” The trial court heard Lancer’s Motion for Summary Judgment on April 29, 2005, at which time the court orally granted Lancer’s motion.

Gwaltney timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Gwaltney raises two assignments of error: (1) The trial court erred in failing to find that the trucking liability policy of Lancer issued to Webb provided coverage for Webb’s activities for the entire time his tractor trailer was being unloaded, including the time when he left the loading bay where his vehicle was parked in order to have the bill of lading executed by the cosignee, and (2) The trial court acted prematurely in the ruling of Lancer’s Motion for Summary | Judgment without reviewing the deposition testimony of Ursin and Webb taken several days prior to oral argument on the Motion for Summary Judgment.

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

Gwaltney’s first assignment of error requires us to make a determination of whether the alleged accident at issue is a direct result of Webb’s use of his vehicle, thereby triggering coverage under Lancer’s policy. In the case of Terminix Serv., Inc. v. State Farm Mut. Auto. Ins. Co., cited by appellee, this Court recounted in detail the considerations to be made when making such a determination.

The meaning of the term “use” in vehicle liability insurance policies has been the subject of much litigation.,; It is well established that one need not be actually operating or driving a vehicle in order to be using it. Baudin v. Traders and General Insurance Company, 201 So.2d 379 (La.App. 3rd Cir.1967), writ denied, 251 La. 224, 203 So.2d 557 (La.1967); Tolleson v. State Farm Fire and Cas. Co., 449 So.2d 105(La.App. 1st Cir.1984), writ denied, 450 So.2d 968 (La.1984).
Further, the jurisprudence of Louisiana has given a broad interpretation to the words “arising out of the ... use of the automobile.” The totality of the circumstances surrounding or leading up to an accident should be examined in determining if accident arose out of the “use” of the automobile or truck. By looking to what part the automobile played in the entire scheme the courts can determine if there is coverage, and if so, how far it will be extended. Each case must depend on its facts according to the part the automobile played in the scheme. U.S. Fidelity v. Burris, 240 So.2d 408, 409 (La.App. 2 Cir.1970).
In Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), the Supreme Court established the analysis to be used in determining whether an accident arose out of the “use” of an automobile. The court noted that the “use” provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Thus, the courts are required to answer two separate questions:
(1) Was the conduct of the insured of which the plaintiff complains a legal cause of the injury?
(2) Was it a use of the automobile?
In order for the conduct to arise out of the use of the vehicle, the automobile must be essential to the theory of liability. The specific duty breached by the insured must flow from use of the automobile. If the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of the automobile. W.S. McKenzie and H.A. Johnson, Louisiana Civil Law Treatise, Volume 15, Insurance Law and Practice, § 65 (1986).

|fiIn applying the test found in Carter v. City Parish Gov’t of East Baton Rouge to the present facts, we begin our analysis with a review of the allegations against Webb found in Ursin’s petition:

II.
Defendant, Preston Webb, was the driver of a Gwaltney truck that was being unloaded in door number forty-eight (48) and was attempting to close door number forty-eight when he pressed the wrong button and actually closed door number forty-nine (49) where your petitioner was working causing the subject accident, damages and injuries complained of herein.
III.
The above accident and all damages resulting therefrom were caused by no fault by your petitioner but were caused by the negligence and/or fault of the defendants, Preston Webb, Gwaltney and/or Bear Swamp Trucking, Inc., which negligent and/or fault includes but it is not limited to the following:
PRESTON WEBB
1) Failure to press the right button and close the correct door:
2) Failure to check to make sure that the area was clear prior to closing the subject door;
8) Failure to see what he should have seen;
4) Failure to keep a good and proper look out;
5) Failing to warn your petitioner that he was closing the subject door;
6) Failure to follow Winn Dixie’s procedure regarding the closing of door at the warehouse;
7) Failure to exercise reasonable care under the circumstances;
8) Any and all other acts of negligence to be proven at the trial of this matter[.]

After reviewing the record, we first find that the legal cause of Ursin’s injuries, as alleged by the. plaintiff, was Webb’s act of negligence in pushing the wrong button, which in turn lowered a loading bay door onto Ursin. We, therefore, next consider whether the specific duty that Webb breached specifically flowed from use of his automobile.

LGwaltney argues that a reading of the face of the petition itself, combined with a reading of Lancer’s insurance policy, should have compelled the trial court to find that coverage existed. Lancer’s liability policy on Webb, in relevant part, reads:

B. Exclusions
This insurance does not apply to any of the following:
7. Handling Of Property
“Bodily injury” or “property damage” resulting from the handling of property:
a. Before it is moved from the place where it is accepted by the “insured” for movement into or onto the covered “auto”; or
b. After it is moved from the covered “auto” to the place where it is finally delivered by the “insured”.

Gwaltney asserts that the petition indicates that Webb’s truck was still being unloaded at the time the accident occurred, which becomes significant because Lancer’s policy provides that significant portions of the loading and unloading process are covered by the policy as part of the operation, maintenance, and use of a commercial tractor-trailer. Gwaltney further asserts that “[without the tractor-trailer being present, Mr. Webb would not have been standing on the loading dock and would not have been pressing a button to close the loading bay door.”

Conversely, Lancer argues that Ursin’s injury did not arise out of the use of Webb’s vehicle but, rather, from a breach of Webb’s duty to refrain from negligently injuring another, which exists independent of the use of his vehicle. In support of its argument, Lancer cites to LSA-C.C. art. 2315 which, in relevant part, reads: “A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Lancer further relies on LSA-C.C. art. 2316, which provides, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

|RAs previously noted, if the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of the automobile. In making this determination, the Louisiana Supreme Court directs that a court should apply a common sense approach to determine whether the duty breached by the insured flows from the automobile’s “use” under the policy language.

After a de novo review of the record in this case, we find that the unrefuted allegation in Ursin’s petition is that the truck in question was still being unloaded at the time of Ursin’s injury and, therefore, the specific duty that Webb breached specifically flowed from use of his automobile. This, coupled with the language contained in exclusion seven of the policy at issue, leads us to the conclusion that the trial court erred in granting summary judgment.

Based on this finding we will pretermit discussion of appellant’s remaining assignment of error.

For the foregoing reasons, the judgment of the trial court is reversed. Each party is to bear its own costs of the appeal.

REVERSED

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

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

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

      . Id. at 1008.

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

      . 01-720 (La.App. 5 Cir. 11/27/01), 803 So.2d 198.

      . Terminix v. State Farm, 803 So.2d at 202

      . 423 So.2d 1080 (La.1982)

      . Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968).


author: MAX N. TOBIAS, JR., Judge.

text:
    Cleveland BETHLEY v. The CITY OF NEW ORLEANS.
    No. 2006-CA-0921.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 2006.

      Robert H. Urann, Robein, Urann & Lu-rye, Metairie, LA, for Plaintiff/Appellant.
    Russell M. Cornelius, Cornelius, Sartin & Murphy, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

11 This appeal arises out of a claim for workers’ compensation benefits. The claimant, Cleveland Bethley, Jr. (“Beth-ley”), appeals the judgment of the workers’ compensation judge (“WCJ”) finding that the reduction of his Supplemental Earnings Benefits (“SEB”) was justified. For the reasons assigned below, we affirm.

The facts surrounding Bethley’s work related injury are not in dispute. Bethley, employed as a firefighter for the City of New Orleans (“City”), injured his back on 15 December 2001. As a result of the injury, he began receiving indemnity benefits.

In August of 2002, Bethley’s indemnity benefits were converted to monthly SEB in the amount of $1724.67. Effective 1 September 2003, the City reduced his monthly SEB to $1226.85 because Beth-ley’s treating physician, Robert Ruel, M.D., released him to perform sedentary work and approved several jobs identified by Bethley’s vocational rehabilitation counselor. In response, Bethley filed a Disputed Claim for Compensation on 7 October 2003. Bethley maintained that he was unable to work due to substantial pain in his back and legs.

laThe matter was brought to trial on 1 April 2005. Bethley testified that he suffered constant pain in his back and legs. He stated that on some days he could not get out of bed because of the pain. He further explained that he had not worked or sought work due to the substantial pain. He testified that he spent his days sitting around the house and running an occasional errand. But he did state that he was able to drive for short distances.

The deposition of Dr. Ruel, taken on 2 February 2005, was introduced at trial. Over a long course of treatment with Dr. Ruel, Bethley received various pain medications, steroid injections, and physical therapy. Accordingly to Dr. Ruel, Bethley suffered from “[sjpinal stenosis and lateral recess stenosis at L4-5 with extrinsic compression of the left nerve roots at that level as well as extrinsic defect on the left by the L3-4 disc and facet arthropathy.” Dr. Ruel recommended surgery and suggested that Bethley consult with another orthopedic surgeon because he, Dr. Ruel, no longer performed surgeries. Bethley rejected surgery. Bethley stated that his pain would have to get much worse before he would consider surgery.

In connection with the testimony of Be-lencia Lawrence, a vocational rehabilitation specialist with Resolution Network, L.L.C., the City introduced the Closure Report, dated 19 September 2003, which identified several jobs for Bethley, and the Physician Verification Forms, wherein Dr. Ruel approved all but one of the identified jobs for Bethley. The jobs approved by Dr. Ruel included dispatcher, dispatcher trainee, motor vehicle inspector, quality control professional, and receptionist. Bethley testified that he did not interview for any of the jobs ^approved by Dr. Ruel. He further stated that he did not attempt to find a job on his own, reiterating that he was in too much pain to work.

Finally, Alyson Cranston, workers’ compensation claims adjuster with Management Services, Inc., testified that the reduction in SEB was based on an earning capacity of $8.25 per hour for a 40-hour week. She explained that the hourly rate was calculated by averaging the pay of the seven jobs identified by the vocational rehabilitation counselor and approved by Dr. Ruel. She further testified that she was provided no information from Dr. Ruel stating that Bethley was unable to work in a full-time capacity. Bethley argued that his substantial pain could not have been taken into consideration if the calculation of earning capacity was based on a 40-hour workweek.

On 22 June 2005, the WCJ ruled that the City’s reduction of Bethley’s monthly SEB was justified. This timely appeal followed. On appeal, Bethley argues that the WCJ committed manifest error in ruling that the reduction of his benefits was justified despite the uncontradicted evidence of his substantial pain.

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 04-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Masinter v. Akal Sec., Inc., 05-1236, p. 3 (La.App. 4 Cir. 6/07/06), 934 So.2d 201, 203. Under this standard, the issue is not whether the trier of fact was right or wrong but whether the fact-finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Where there are two permissible views of evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transportation and Development, 617 So.2d |4880, 882-83 (La.1993); Thompson v. City of New Orleans, 05-0947, p. 7 (La.App. 4 Cir. 5/24/06), 933 So.2d 207, 211-212.

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the Louisiana Supreme Court reiterated the standard of review when the credibility of a claimant is at issue, stating: “Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently [internal citation].” Bethley submits that pursuant to La. R.S. 23:1221(3)(c)(ii), an injured worker’s substantial pain is a factor in considering eligibility for SEB. Moreover, Bethley asserts that he presented clear and convincing evidence that he continues to suffer substantial pain. The City submits that Bethley presented no evidence, other than his own testimony, to prove that he was in too much pain to work. More specifically, the City maintains that Bethley failed to produce any evidence to contradict Dr. Ruel’s opinion that he was able to perform sedentary work.

The purpose of SEB is to compensate the injured employee for the wage earning capacity he or she has lost as a result of an accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related | ^injury resulted in the inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a).

Once the claimant makes this showing, the burden shifts to the employer, who must prove by a preponderance of evidence that the claimant is physically able to perform a certain job and that the job was offered to the claimant or was available in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i). Banks, 96-2840, p. 6, 696 So.2d at 556. An employer can discharge its burden by establishing (1) the existence of a suitable job within claimant’s physical capabilities, (2) the amount of wages an employee with claimant’s experience and training can expect to earn in that job, and (8) an actual position available for that particular job at the time the claimant received notification of the job’s existence. Seal v. Gaylord Container Corp., 97-0688, p. 9 (La.12/2/97), 704 So.2d 1161, 1167; Noto v. City of New Orleans Fire Dept., 04-0472, p. 6 (La.App. 4 Cir. 9/01/04), 883 So.2d 439, 444. Finally, if the employer is successful in sustaining its burden, the burden shifts back to the claimant to show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii); Reynolds Industrial Contractors v. Fox, 41,051, p. 12 (La.App. 2 Cir. 6/28/06), 935 So.2d 783, 790; Hebert v. Terrebonne Parish School Board, 03-1444, p. 10 (La.App. 1 Cir. 5/14/04), 879 So.2d 222, 229.

This court has held that although a court may consider a claimant’s uncorroborated testimony of subjective pain, if credible, concerning what his physical limitations might be as a result of pain, the decision of the court should not be based on claimant’s self-serving testimony on the ultimate issue of whether Lthe claimant is able to work. Duhon v. Holi Temporary Services, Inc., 97-0604, pp. 6-7 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152, 1155; see also Scott v. Lakeview Regional Medical Center, 01-0538, pp. 3-4 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 222. As this court stated in Duhon:

We are reminded in Banks of “the jurisprudential tenet that worker’s compensation is to be liberally construed in favor of coverage,” but we are also bound by LSA-R.S. 23:1221(3) (c) (ii) which provides that the burden on claimant is not a mere preponderance of the evidence, but one of “clear and convincing evidence” where the disability is “solely as a consequence of substantial pain.” The legislature obviously recognized the potential for abuse in this area when it enacted this heightened standard of proof.

Duhon at p. 1155,

In the present case, it is evident that Dr. Ruel was well aware of Bethley’s medical condition and his ongoing complaints of pain. Nevertheless, Dr. Ruel released Bethley to return to light duty work. Dr. Ruel’s medical testimony clearly indicates that Bethley was able to work in the jobs identified by the vocational rehabilitation specialist. Dr. Ruel explained that, although Bethley might miss more work than someone without his condition, he was able to perform a sedentary job that required lifting of no more than ten pounds.

Bethley, on the other hand, presented no evidence, other than his own statements, that he could not perform any of the employment offered due to pain. Furthermore, by his own testimony, Bethley did not attempt to work in any of the positions made available to him.

After reviewing the record, we conclude that Bethley failed to produce clear and convincing evidence of his inability to perform the available work solely as a |7consequence of substantial pain. Accordingly, the WCJ did not err in determining that the reduction of Bethley’s SEB was justified.

For the foregoing reasons, the judgment of the WCJ is affirmed.

AFFIRMED.

      . Ms. Lawrence was the supervisor of Brady Hudspeth who actually handled Bethley’s vocational rehabilitation. On the date of trial, Mr. Hudspeth was no longer working for Resolution Network, L.L.C.

      . La. R.S. 23:1221(3)(c)(ii) provides in pertinent part: "if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.”


author: GREMILLION, Judge.

text:
    MARSHALL GAS & OIL, LLC v. The CORPORATION OF HAVERFORD COLLEGE, et al.
    No. 06-392.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 25, 2006.
    Rehearing Denied Dec. 20, 2006.
    See also 709 So.2d 662.
    William H. Parker, III, James H. Gibson, Charles M. Kreamer, Allen & Gooch, Lafayette, LA, for Plaintiff/Appellant, Marshall Gas & Oil, LLC.
    Jack Marks Alltmont, Max Nathan, Jr., Sharon Cormack Mize, Sessions, Fishman, et al, New Orleans, LA, for DefendanVAp-pellee, Yale Law School.
    Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Breazeale, Sachse & Wilson, LLP, New Orleans, LA, for Secondary Defendant/Appellant, Dr. Stephen Cook.
    A.J. Gray, III, Gray Law Firm, Leslie Qvale Knox, Bart R. Yakputzack, Lake Charles, LA, Robert A. Swift, Kohn, Swift & Graf, PC, Philadelphia, PA, for Defendant/Appellee, The Corporation of Haver-ford College.
    William E. Shaddock, H. Aubrey White, III, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, LA, John Frazier Hunt, Marguerite J. Ayers, Hunt & Ayers, LLP, Philadelphia, PA, for Defendant/Appellee, George School.
    Gregory Jesse Logan, The Logan Law Firm, Lafayette, LA, for Defendant/Appel-lee, The J. Howard Marshall II Living Trust.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe plaintiff, Marshall Gas & Oil, L.L.C. (MGO), and the defendant, Dr. Stephen Cook, trastee of the Marshall Museum and Library, a Louisiana Charitable Trust, appeal the trial court’s grant of summary judgment finding that a valid partial assignment of a note was executed by the settlor, J. Howard Marshall, II, in the funding of the J. Howard Marshall, II, Charitable Remainder Annuity Trust (CRAT). For the following reasons, we affirm.

FACTS

The pertinent facts of this matter were laid out by the Louisiana Supreme Court in In re Howard Marshall Charitable Remainder Annuity Trust, 97-1718, pp. 1-3 (La.3/4/98), 709 So.2d 662, 663-64 (alteration in the original):

Decedent, J. Howard Marshall, II, (Mr. Marshall) was an extremely wealthy attorney and businessman who was domiciled in Houston, Texas. He died on August 4, 1995. In the years preceding his death, Mr. Marshall transferred all of his personal assets into a series of inter vivos trusts in an attempt to avoid the necessity for probate. The vast majority of Mr. Marshall’s assets were transferred to the J. Howard Marshall, II, Living Trust (Living Trust). In addition, Mr. Marshall created a second trust, the Howard Marshall Charitable Remainder Annuity Trust (Charitable Trust) to fund his charitable pledges and donations. The Charitable Trust was funded by an interest bearing note in the amount of $2,950,000, payable to J. Howard Marshall, II, by his son, E. Pierce Marshall.
Mr. Marshall was an income beneficiary under the terms of both trust agreements. The Living Trust provided: “During and throughout [Mr. Marshall’s] lifetime, Trustee shall pay over to [Mr. Marshall] sufficient income to maintain [Mr. Marshall’s] standard of living.” The Charitable Trust states:
The Trustee shall pay to J. Howard Marshall, II (sometimes referred to as the Recipient) in each taxable year of the Trust during the Recipient’s life an annuity in the amount of One Hundred Ninety-four Thousand Seven Hundred Dollars ($194,700).
LBoth trusts contained a provision authorizing the trustee to invade the corpus or principal of the trust if necessary to maintain the income streams provided for in the trusts.
The instant dispute concerns the distribution of the principal of the Charitable Trust. By the terms of the trust agreement, following the death of Mr. Marshall the principal was to be distributed as follows:
DISTRIBUTION TO CHARITY.
Upon the death of the Recipient, the Trustee shall distribute all of the then principal and income of the trust (other than any amount due Recipient or Recipient’s estate under ¶¶ 2 and 3, above) to Haverford College, Haverford Pennsylvania, George School, Bucks County, Pennsylvania, and Yale University, New Haven, Connecticut (hereinafter referred to as the Charitable Organizations ) in the following proportions:
Haverford College 40.678%
George School 25.424%
Yale University 33.898%
Provided, however, that if any charitable pledge from the Donor exists to any of the Charitable Organizations, the Trustee shall make the distribution in such a manner to satisfy that pledge or pledges with the balance distributed in the proportions specified.
Following Mr. Marshall’s death, the trustee of the Charitable Trust, Finley L. Hilliard, a resident of Lake Charles, Louisiana, took preliminary measures to distribute the corpus of the trust to the Charitable Organizations. Mr. Hilliard contacted the Charitable Organizations in an attempt to determine the extent of outstanding pledges, if any, which were due each organization by Mr. Marshall. George School responded that Mr. Marshall owed pledges in excess of $1.1 million dollars at the time of his death, and Haverford College reported between $3.8 and $5.3 million in outstanding pledges. Yale University responded that Mr. Marshall owed no outstanding pledges to that organization. The combined pledges of George School and Haverford College easily exceed the corpus of the charitable trust.
Mr. Hilliard then filed a “Petition for Instructions” in the [14th] Judicial District Court in Calcasieu Parish, denying that the Charitable Trust was legally bound to George School and Haverford College for the claimed pledges. In his petition, Mr. Hilliard requested that the corpus of the Charitable Trust be distributed in accordance with the stated percentages without any privilege to the alleged pledges made by Mr. Marshall to Haverford College and George School. Mr. Hilliard further stated that it was Mr. Marshall’s intention that the corpus of the trust would fully extinguish any and all pledges he had made to the Charitable Organizations.
|3George School, Haverford College, and Yale University responded to Mr. Finley’s petition. Haverford College asserted that its pledges were valid, and further responded that under the provisions of the trust, the outstanding pledges should be paid first, with only the remainder, if any, to be distributed according to the percentages. Haver-ford College further expressly reserved the right to enforce any pledges not extinguished by payment against Mr. Marshall’s estate. Similarly, George School responded by averring the validity of its pledges, and by reserving the right to pursue the unpaid balance of remaining pledges against Mr. Marshall’s estate. George School and Yale University did not oppose the distribution of the trust corpus in accordance with the percentages provided in the Charitable Trust.

Hilliard, trustee of the Living Trust, was named as a third-party defendant in third-party petitions filed by both Haverford and George School. The Succession of J. Howard Marshall, II, which was being administered in Calcasieu Parish, was also named as a defendant in the matter. The issue before the supreme court turned on whether Louisiana had jurisdiction to open the Succession of Marshall, a Texas domiciliary. Ultimately, the supreme court held that Louisiana lacked jurisdiction to open the succession as the situs of the succession property was Texas, rather than Louisiana.

Following a trial on the merits, the Fourteenth Judicial District Court rendered a Judgment of Instructions, in which it instructed the CRAT:

1. That the application of the trust corpus toward the payment or partial payment of any existing charitable pledges from the Settlor to any Beneficiary would constitute self-dealing within the meaning of the Internal Revenue Code, and a prohibited transaction within the meaning of the express provisions of the trust instrument;
2. That the language of the trust instrument prohibits the satisfaction, in whole or in part, of any such charitable pledges by the Trustee, and requires that the Trustee take appropriate steps under Article 10 of the trust instrument to preserve the
trust’s status as a charitable remainder annuity trust; and
|43. That the language of the trust instrument requires the Trustee to distribute the trust corpus, less any as yet sums due and owing to the Settlor or the Settlor’s estate under Articles 2 and 3 of the trust instrument, and less any proper administrative expenses of the trust, to its Beneficiaries in the percentages designated in the trust instrument, to wit:
Haverford College: 40.678%
George School: 25.424%
Yale University: 33.898%
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Trustee be, and is hereby, instructed to distribute the trust corpus in accordance with the Instructions set forth above, together with an appropriate accounting, within fifteen (15) days of the date on which this Judgment of Instructions shall become executory.

On August 27, 2003, the plaintiff in the instant matter, MGO, filed a Petition for Concursus in the Fifteenth Judicial District Court, seeking to have the defendants assert their claims to funds belonging to the CRAT. Named as defendants were Haverford College, George School, Yale Law School, the Living Trust, along with its trustee, Gregory J. Logan, and the Marshall Museum, along with its trustee, Dr. Cook. In conjunction with its petition, MGO deposited $2,950,000 into the registry of the court. Thereafter, Haverford College and George School filed motions for summary judgment alleging their entitlement to the CRAT funds based on various theories, including res judicata and the execution of the act of assignment. MGO then filed an Amended Petition for Con-cursus and Petition for Refund of Interest Payments Made in Error alleging that the partial assignment of the $2,950,000 never occurred; thus, as a holder in due course of the paid-in-full $17,355,000 promissory note, of which the $2,950,000 represented the partial assignment, it argued that it was entitled to retain the $2,950,000. Following a hearing on the merits, the trial court rendered judgment in favor of Hav-erford College and George School finding that no | ¡¡genuine issues of material fact existed as to the validity of the partial assignment of the $2,950,000 funding the CRAT. Accordingly, it ordered the Clerk of Court to disburse the funds held in the registry of the court in compliance with the CRAT’s terms. This suspensive appeal by MGO and devolutive appeal by Dr. Cook followed.

ISSUES

On appeal, MGO and Dr. Cook argue that the trial court erred in admitting into evidence two affidavits attached to Haver-ford College and George School’s motion for summary judgment. They further argue that the trial court erred in finding that summary judgment was appropriate in this matter.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

1 fiAfter reviewing the record, we find that the trial court correctly found that a valid partial assignment was executed by Marshall in order to fund the CRAT.

Lost Document

Haverford and George School argue that Marshall funded the CRAT through an assignment of $2,950,000, via a portion of a $17,355,000 promissory note owed to him by his son, E. Pierce Marshall. Although the CRAT was executed by Marshall and Hilliard, they claim that the signed Act of Assignment has been lost or misplaced.

Louisiana Code of Evidence Article 1004 provides that other evidence of the contents of a document is admissible if the original document is lost or destroyed, unless the proponent lost or destroyed the document in bad faith. Louisiana Civil Code Article 1832 provides that “[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.” Louisiana Revised Statute 13:3740 provides:

When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by accident, or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable; and in this case, the judgment may, if required, order reasonable security to be given to indemnify the party against the appearance of the instrument, in case circumstances render it necessary.

A party relying on a lost document to prove its claim must advertise the document’s loss in a public newspaper within a reasonable time and take the proper steps necessary to recover possession of the document. La.R.S. 13:3741.

|7In support of their claims, Haverford and George School introduced the affidavits of Hilliard and Eyvonne Scurlock, the notary public before whom the documents were executed. Both stated that the original Act of Assignment was lost. In his affidavit, Hilliard stated that he was the trustee of the CRAT, which was established on November 30, 1993, and that the Act of Assignment was executed by him and Marshall contemporaneously with the execution of the CRAT. He stated:

I was present during the discussions relating to the Howard Marshall Charitable Remainder Annuity Trust, have served as the Trustee since its inception, and know of my own personal knowledge that J. Howard Marshall II intended to transfer the $2,950,000 interest in the promissory note dated August 25, 1993, to the Trust for the benefit of the charitable institutions identified therein as beneficiaries.

Scurlock stated that she was Marshall’s administrative assistant and the secretary of Marshall Petroleum, Inc. on November 30, 1993. She stated that Marshall and Hilliard executed the CRAT document on that date, before her as notary. She further related that she was present during the discussions relating to the CRAT and that she knew Marshall intended to transfer the $2,950,000 interest in the promissory note to the CRAT for the benefit of charitable organizations listed therein.

MGO argues that Hilliard’s affidavit is contradicted by his testimony from a deposition taken in the CRAT proceedings in the Fourteenth Judicial District Court. In the deposition, Hilliard was asked if he recalled applying his signature to the Act of Assignment:

Q. Do you recall applying your signature to that document?
A. Np sir. I don’t recall it, but I am sure that I did.
Q. You have no reason to doubt that you did not sign that document?
Is A. I mean I could not have signed it. I don’t remember. I would think at this point I would have signed it though.
Q. Right. Because that is how you received corpus of the CRAT?
A. Yes, sir.
Q. Just along those same lines let me show you a document entitled “Affidavit of Lost Document.”
A. Yes, sir. I remember this.
Q. Ask you to identify that. In that document, Yvonne (sic) — I believe her name is Skurlock (sp) says that she recalls you signing that Act of Assignment?
A. Okay.
Q. So, again, you have no reason to doubt that you did not sign that Act of Assignment on November 30th 1993?
A. No, sir. It had to be signed.

Although a deposition from another proceeding may be introduced for impeachment purposes, we find that Hilliard’s testimony fails to create a genuine issue of material fact with the statements in his affidavit. Bell v. Gold Rush Casino, 04-1123 (La.App. 3 Cir. 2/2/05), 893 So.2d 969. Although he did not specifically recall signing his name to the CRAT, he testified that he must have done so or else the CRAT would not have been funded, which it was. He was sure that he signed the Act of Assignment. Accordingly, we find that Hilliard’s deposition testimony does not create a genuine issue of material fact, when compared to his affidavit.

Haverford and George School also introduced into evidence two affidavits of publication. The notices were placed in the Lake Charles American Press, Lake Charles, Louisiana, and the Dailey Court Review, Houston, Harris |¡,County, Texas advertising the lost Act of Assignment on March 29, 2004.

Based on the evidence presented, we find that the trial court correctly held that a valid Act of Assignment was executed by Marshall and Hilliard on November 30, 1993. Haverford and George School never possessed the Act of Assignment; therefore, they were entitled to prove the contents of the document via the affidavits of Hilliard and Scurlock. As their affidavits proved that the Act of Assignment was executed, the CRAT was funded by the $2,950,000 assignment and Haverford and George School were entitled to CRAT funds in the percentages provided. Accordingly, the trial court’s judgment is affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Marshall Gas & Oil, L.L.C., and the defendant-appellant, Dr. Stephen Cook, trustee of the Marshall Museum and Library, a Louisiana Charitable Trust.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Jernell PAYNE.
    No. 06-KA-378.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Churita H. Hansell, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffAppellee.
    Holli Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ¡.Defendant, Jernell Payne, was convicted of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1, and was sentenced to eleven years at hard labor with the first ten years being served without the benefit of parole, probation, or suspension of sentence. Defendant appeals from his conviction and sentence.

FACTS

On April 3, 2004, Deputy Joseph Chais-son with the Jefferson Parish Sheriffs Office was on patrol in Marrero near the Villa D’Ames apartment complex, a high crime area consisting of approximately thirteen buildings, when he noticed a group of men standing between the fence and Building One. He noted that every time he passed the complex on Ames Blvd. in his marked patrol car, the men ran into the complex between the buildings. Deputy Chaisson testified that he observed the men engage in hand-to-hand transactions where something was exchanged. Although he could not see the matter being exchanged, he stated the transactions appeared similar to drug transactions.

| «Deputy Chaisson called for a back-up unit to enter the complex from the Silver Lily side. As Deputy Chaisson passed the complex once more on Ames Blvd., the group of men again ran into the complex at which time Deputy Chaisson lost sight of them. Deputy Varmall, one of the responding back-up officers who had entered the complex from the opposite side, saw several men run when Deputy Chaisson pulled up to the complex. Deputy Varmall testified he observed defendant running from Deputy Chaisson. He then saw defendant withdraw a black handgun from his waistband and throw it on the ground. Deputy Varmall pursued defendant and apprehended him. He subsequently retrieved the handgun which was loaded.

At trial, defendant offered the testimony of Cassandra Harrell, who testified that a second man, matching the defendant’s clothing description, also ran from the police. She admitted however, that she was not present when defendant was arrested, and therefore she did not know whether or not defendant had a gun at the time of his arrest.

ASSIGNMENT OF ERROR

In this appeal, the defendant argues there was insufficient evidence to convict him of possession of a firearm by a convicted felon. He contends the State failed to prove his identity as the perpetrator of the offense.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A reviewing court is required to consider the whole record and determine whether a rational trier of fact | ¿could have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

The elements of possession of a firearm by a convicted felon are (1) possession of a firearm, (2) conviction of an enumerated felony, and (3) absence of the ten-year statutory period of limitation. LSA-R.S. 14:95.1; State v. East, 99-1379 (La.App. 5 Cir. 7/25/00), 768 So.2d 173, 177, writ denied, 01-3025 (La.10/25/02), 827 So.2d 1167. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. Positive identification by only one witness is sufficient to support a conviction. State v. Weaver, 05-169 (La.App. 5 Cir. 11/29/05), 917 So.2d 600, 608.

Defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction but rather contends the State failed to prove beyond a reasonable doubt his identity as the offender. To prove identity, the State presented the testimony of Deputy Russell Varmall. Deputy Varmall testified he saw defendant running from Deputy Chaisson. He stated he saw defendant withdraw a black handgun from his waistband and throw it down. Thereafter, Deputy Varmall chased defendant between fifty and two hundred yards and apprehended him. Deputy Varmall stated he never lost sight of defendant after he discarded the gun.

Defendant argues Deputy Varmall was inconsistent in describing the perpetrator’s clothing. On direct examination, Deputy Varmall testified the | ^perpetrator was wearing a white t-shirt with blue or dark pants. On cross-examination, defense counsel asked Deputy Varmall whether he remembered testifying at the motion to suppress hearing that he saw a black male with a white t-shirt and black jeans. Deputy Varmall affirmatively responded.

Defendant seems to suggest that the difference between blue and black jeans is critical in the identification of the perpetrator because several black men were seen in the area at the time the weapon was discarded, including one who matched the defendant’s clothing description. On cross examination, Deputy Varmall admitted he saw several black men running through the complex. However, Deputy Varmall clearly testified that he saw defendant discard the gun and never lost sight of him before apprehending him. Although defendant presented evidence of another black male running through the complex wearing similar clothing, namely a white t-shirt and black jeans, such evidence did not negate Deputy Varmall’s testimony identifying defendant as the perpetrator.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. East, 99-1379 (La.App. 5 Cir. 7/25/00), 768 So.2d 173, 177, writ denied, 01-3025 (La.10/25/02), 827 So.2d 1167. The jury heard all the evidence and clearly found Deputy Varmall to be credible. The jury accepted Deputy Varmall’s testimony that he saw defendant discard the gun and never lost sight of him prior to apprehending him.

Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the defendant was in possession of the firearm, and therefore guilty beyond a reasonable doubt of possession of a firearm by a | ^convicted felon. We find the defendant’s allegation that the evidence was insufficient to convict him to be without merit.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which require correction .

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

AFFIRMED.

      . Defendant’s first trial, commenced on March 30, 2005 ended in a mistrial after the jury failed to reach a verdict. Defendant's conviction was obtained at trial commenced on May 24, 2005, after a twelve person jury found him guilty by a vote of eleven to one.

      . Because the defendant does not challenge the State's proof of the essential statutory elements of his conviction, the sufficiency of the evidence with respect to the statutory elements of possession of a firearm by a convicted felon is not addressed. See, State v. King, 05-553 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, 1212; State v. Joseph, 03-1445 (La.App. 5 Cir. 5/26/04), 875 So.2d 1011, 1013.

      . Defendant's sentence is illegally lenient in two respects. First, the trial judge failed to impose the mandatory fine under LSA-R.S. 14:95.1 of between one thousand and five thousand dollars. The State did not object at the time of sentencing and has not appealed the error, although it notes the error in its brief of appeal. It is within this Court's discretion to remand for imposition of a fine, but we decline to do so. LSA-C.Cr.P. art. 882; State v. Decrevel, 03-0259 (La.5/16/03), 847 So.2d 1197 (per curiam); State v. Ellington, 04-654 (La.App. 5 Cir. 11/30/04), 889 So.2d 1146, 1150, footnote 2.
      Second, the trial judge only imposed the first ten years of defendant’s eleven-year sentence without benefits. LSA-R.S. 14:95.1 requires that the entire sentence be without benefit of parole, probation, or suspension of sentence. No corrective action is required as the entirety of defendant’s sentence is deemed to contain the restrictions set forth in the applicable statute. LSA-R.S. 15:301. State v. Ellington, supra, at 1150, footnote 2.


text:
    STATE of Louisiana v. Shane M. CHAUVIN.
    No. 06-KA-362.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Thomas Block, Churita S. Hansell, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

      Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MAEION F. EDWARDS, CLARENCE E. McMANUS and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

USTATEMENT OF THE CASE

On August 19, 2004, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Shane M. Chauvin, with possession of cocaine, a violation of LSA-R.S. 40:967(C). At his arraignment, the defendant pled not guilty. The defendant filed an omnibus motion, which included a Motion to Suppress Confession, Identification, and Physical Evidence. In the motion, the defendant alleged that the • evidence was unlawfully seized. After a hearing, the trial court denied the motion to suppress. On January 13, 2005, the defendant withdrew his not guilty plea, and entered a plea of guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to a review of the trial court’s denial of his motion to suppress. The defendant was sentenced to two years at hard labor, which was suspended, and placed on two years active probation. As conditions of his probation, the defendant was ordered to pay court costs of $398.50, a fine of $300.00, a juror assessment of $20.00, a Crimestoppers fee of $2.00, a commissioner’s fee of $100.00, a special fine of $150.00 to the “I Can Help” drug program, and a minimum supervision fee of $55.00 per month to the Department of Probation and Parole plus a $5.00 assessment. In addition to | ¡¡these general probation conditions on the Conditions of Probation-Felony form, the defendant was ordered to complete 100 hours of community service within 90 days and write a three-page handwritten essay entitled “Why I Should Not Commit A Crime” to be read in open court.

FACTS

The Supervisor of the City of Kenner Police Department’s Narcotics Section, Sergeant Nicholas Huth, testified that, on July 28, 2004, he was working a narcotics operation, while parked in the lot at 2401 Veterans Boulevard, in Kenner. This location contains a pain management clinic and a pharmacy. Sergeant Huth testified that the narcotics unit received complaints of narcotics use and sales from business owners of the complex. Crimes have taken place at the complex involving individuals who come to the pharmacy to pick up pills and then to sell the pills in the parking lot. Sergeant Huth testified that there have been other related crimes at the complex involving weapons and many arrests. On the day in question, he observed Shane Chauvin, whom he identified in court as the defendant “racing around” the second floor of the parking lot approaching patrons of the businesses and handing them an object. He decided to investigate the defendant, because his actions were extremely suspicious, and his “loud” behavior alarmed the people he approached. Sergeant Huth continued to observe the defendant for eight or nine minutes as he approached people. During this time, Sergeant Huth had two employees of businesses approach him and point out the defendant. These employees informed him that the defendant’s actions were causing alarm to them, as well as the businesses’ patrons. Sergeant Huth approached the defendant, and informed him that he felt that his actions were extremely suspicious. The defendant was “extremely excitable or jumping [sic] moving back and forth.... ” He talked to the defendant, whom he described as loud, excited, and boisterous. | ¿Sergeant Huth believed that the defendant’s behaviors were caused by the influence of narcotics. Sergeant Huth admitted that most people are nervous when they encounter the police. However, he claimed that he did not stop the defendant because of nervous behavior.

According to Sergeant Huth, he investigated and found out that the objects that the defendant was passing out were cards that could be used to obtain a discount at another Jefferson Parish pain management clinic. Later, Sergeant Huth admitted that when he observed the defendant approaching the patrons he saw that the defendant was handing out cards. Sergeant Huth conducted a Terry pat down of the defendant. Initially, when asked if he conducted a Terry pat down for his safety and the safety of others in the vicinity, Officer Huth replied that he conducted a Terry pat down, because “a lot of people [officers] deal with around there have needles and other objects on them that could harm me or somebody else but specifically me.... ” Later, Sergeant Huth testified that previously other individuals had pills, knives, and other weapons; therefore, he conducted the pat down for his safety and that of the public. The defendant was not handcuffed during the pat down. Sergeant Huth testified that during the pat down, he felt an object, in the defendant’s right pocket, and it was “immediately apparent to [him] that it was possibly a joint, a marijuana joint, what felt like a marijuana joint.” Sergeant Huth immediately knew the object was not a needle, knife, or other weapon when he patted the defendant down. Sergeant Huth admitted that when he removed the object it was not a marijuana joint. Rather, it was a folded or “wrapped up” dollar bill containing a piece of cellophane or plastic that contained a substance that was field-tested positive for cocaine. When questioned, Sergeant Huth testified that he initially thought the dollar bill contained a marijuana joint. | sLater, he agreed that he had encountered people, who concealed narcotics in money and other objects. Sergeant Huth admitted that when he took the dollar bill out of the defendant’s pocket all he could see was the way it was folded. He did not know what was inside of the dollar bill after he removed it, because he could not see anything. However, he knew the folded dollar bill was not a knife, gun, or other weapon. The defendant was placed under arrest for the narcotics violation. Sergeant Huth claimed that he could have arrested the defendant prior to the pat down and drug discovery for disturbing the peace.

The defendant testified that, on July 28, 2004, he was passing out business cards to recruit patients, at 2401 Veterans Boulevard. On his way to the pharmacy located upstairs, he approached a woman fifty-five years or older, and asked if he could give her a card. She took off running for no apparent reason. Then, he spoke to a man about the Omni Pain Clinic. Next, he went into the pharmacy and handed out cards to five people, “did the speech thing,” and left. The woman who ran off earlier was standing there, next to another woman in scrubs, who informed him that there was a pain management clinic right next door. As he was about to get into a car parked on a side street, Officer Huth ran up to him, and told him to freeze and to put his hands on top of his head. Officer Huth never told him why he was stopped. The defendant consented to a pat down search for safety reasons. He was not handcuffed during the search. The defendant admitted that he had a single dollar bill folded in the right watch pocket of his pants. However, he did not know it contained cocaine, because he picked up the folded dollar bill off the ground and stuck it in his pocket. He told this to the officer at the scene.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues the trial court erred in failing to grant the defense’s motion to suppress the evidence because the evidence was illegally retrieved. The | (¡defendant contends the State did not prove that the dollar bill containing cocaine was lawfully seized from him. He claims that the continued search of the folded dollar bill exceeded the scope of a Terry pat down, because the police officer knew that the object was neither a weapon nor a marijuana joint, as he originally suspected. He claims that the search was not justified under the plain-feel exception, because the item was not immediately identifiable as contraband.

The State argues that Sergeant Huth, an officer with eighteen years of experience, investigated the defendant because he believed his actions were suspicious, and conducted a pat down of the defendant because he was concerned that the defendant had a weapon or a needle that could be used as a weapon. In addition, the defendant was at a location previously involved in complaints of criminal activity. The State contends that the aforementioned reasons created a substantial probability of danger, which necessitated the need for the pat down. During the pat down, Sergeant Huth thought he felt a marijuana cigarette, but, after removing it, he found a dollar bill folded to conceal cocaine. Sergeant Huth testified that narcotics are sometimes concealed in currency in this fashion. Therefore, the State claims that the warrantless seizure of the contraband was justified under the plain view doctrine. Alternatively, the State claims, if the cocaine was illegally seized, under the inevitable discovery doctrine the cocaine would have inevitably been discovered by legal means, in a search incident to the defendant’s arrest for disturbing the peace. The State contends that Sergeant Huth could have arrested the defendant for disturbing the peace. Sergeant Huth testified that he believed based on his years of experience that the defendant was under the influence of narcotics and was frightening the people he approached. The State cites State v. Sherman, 05-0779 (La.4/4/06), 931 So.2d 286, to support its claim 17that Sergeant Huth had the authority to approach and search the defendant, because there was probable cause to arrest the defendant for disturbing the peace.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution article I § 5 protects individuals from unreasonable searches and seizures. State v. Massey, 03-1166, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. The purpose of the United States Constitution’s Fourth Amendment is not to eliminate all contact between the police and citizens. State v. Massey, 866 So.2d at 971. Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops to interrogate persons reasonably suspected of criminal activity. State v. Sam, 05-88, p. 5 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 383, writ denied, 05-2100 (La.3/10/06), 925 So.2d 510. See, Terry v. Ohio, supra. “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” LSA-C.Cr.P. art. 215.1, State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039, 1043. Reasonable suspicion is something less than probable cause to arrest, and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Massey, 866 So.2d at 968. A police officer must be able to articulate specific facts upon which his suspicion is based. State v. Burciaga, 05-357 (La.App. 5 Cir. 2/27/06), 924 So.2d 1125, 1129, citing State v. Kang, 01-1262, p. 4 (La.App. 5 Cir. 2/23/04), 866 So.2d 408, 412, writ denied, 04-944 (La.11/24/04), 888 So.2d 226. A detaining officer “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity....’” State v. Burciaga, 924 So.2d at 1129, citing State v. Collins, 04-751, p. 3 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 618, | «quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). An un-particularized hunch is insufficient to establish reasonable grounds to stop an individual. State v. Barney, 97-777, p. 3 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207. “In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

An area with the reputation of having “high crime” is an articulable fact upon which the police may rely and is relevant in the determination of whether there is reasonable cause to conduct an investigatory stop. State v. Barney, 708 So.2d at 1207. Flight, nervousness, or a startled look at the sight of a police officer is insufficient to justify an investigatory stop by itself. State v. Massey, 866 So.2d at 968. However, these types of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion. Id. In addition, a police officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support a finding of reasonable suspicion for an investigatory stop. State v. Martin, 99-123, p. 4 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102. Whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference is determined under the facts and circumstances of each case. State v. Sam, 905 So.2d at 383-384. “The credibility of witnesses at the suppression hearing is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal.” State v. Enclade, 03-353, p. 5 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 13.

19The State has the burden of establishing the admissibility of evidence seized without a warrant, in a hearing on a defense motion to suppress the evidence. LSA-C.Cr.P. art. 703(D), State v. Manson, 01-159, p. 4 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 485, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441 (1963). Evidence recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution. State v. Harris, 00-1930, pp. 3-4 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 801-802. A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Gagnon, 01-1302, p. 5 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, 171. See also, State v. Payne, 04-1084, p. 3 (La.App. 5 Cir. 1/25/05), 894 So.2d 528, 530. The appellate court must consider the totality of the circumstances, while giving deference to the inferences and deductions of trained police officers that might elude an untrained person. State v. Gagnon, 817 So.2d at 170.

In this case, the initial question is whether Sergeant Huth had reasonable suspicion to justify the investigatory stop. Sergeant Huth claims that he decided to investigate the defendant, because his actions were extremely suspicious, and his “loud behavior” alarmed the people he approached. He was also informed by at least two employees of the businesses that the defendant’s actions were causing alarm to them, as well as the businesses’ patrons. Sergeant Huth described the defendant as exhibiting loud behavior and racing around the second floor of the parking area of the complex as handed out cards. He testified that he could have arrested the defendant for disturbing the peace. Sergeant Huth’s experience as a police officer, the complex’s “extremely bad problem” with individuals picking up Impills and then selling the pills in the parking lot, the employees’ complaints, and the defendant’s behavior provided justification for the investigatory stop.

Since, the investigatory stop was justified, in light of the recent Louisiana Supreme Court case of State v. Sherman, supra, there must next be a determination of whether there was probable cause to arrest the defendant for disturbing the peace. Probable cause is required for the warrantless search to fall within the exception of a search incident to arrest, even though the defendant was not arrested for the offense. See also, State v. Roche, OS-237, p. 7 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767. Therefore, if there was probable cause to arrest the defendant, the warrant-less search of defendant would not violate the Fourth Amendment or La. Const, art. I, § 5.

In State v. Sherman, supra, the defendant was convicted of possession of cocaine with intent to distribute. The case on appeal concerned the reasonableness of a warrantless search where there was probable cause to arrest the defendant for a misdemeanor traffic offense, but the police had no intention to arrest the defendant for the offense for which probable cause existed. The Louisiana Supreme Court found,

Given the fact the lawful custodial arrest alone is sufficient to find a warrant-less search of the person reasonable, and that the search may precede the actual arrest, we find where probable cause to arrest exists, a search of the person does not violate the Fourth Amendment or La. Const, art. I, § 5, where the suspect is subject to the greater intrusion of arrest and search. (Citations omitted)
Nor should the subjective intentions of the officers play any role in our analysis. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). In a unanimous decision, the United States Supreme Court held that when a purportedly pretextual traffic stop has been made where there was |-i probable cause to believe the motorist violated the traffic laws, no Fourth Amendment challenge may be undertaken on the basis the subjective intent of the officers was to use the traffic stop as a means of investigating other law violations. Id., 517 U.S. at 810-813, 116 S.Ct. at 1773-1774. The Court noted it had never held, outside the context of an inventory search or administrative inspection, that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; the Court had repeatedly held and asserted the contrary. Id., 517 U.S. at 812, 116 S.Ct. at 1774. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973) established “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Id., 517 U.S. at 813, 116 S.Ct. at 1774 (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). The constitutional reasonableness of a traffic stop does not depend on the actual motivation of the officer. Whren, 517 U.S. at 813, 116 S.Ct. at 1774. Given that the subjective intentions of the officers are not relevant in determining the constitutional reasonableness of traffic stops, we find the subjective intent of the officers does not determine the reasonableness of a warrantless search incidental to arrest, where the officer did not have an intent to arrest for the offense for which probable cause objectively existed.
State v. Sherman, 931 So.2d at 295-296.

Probable cause exists when the arresting officer has knowledge of facts and circumstances based upon reasonable and trustworthy information that are sufficient to justify a man of average caution in the belief that the person he is going to arrest has committed or is committing an offense. State v. Flagg, 99-1004, p. 6 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 528, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117. A determination of probable cause does not require the resolution of conflicting evidence as required at trial. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, 788-789. Credibility determinations as well are seldom crucial in deciding whether there is available evidence supporting a reasonable belief that the person going to be arrested has committed a crime. Id. Probable cause deals with probabilities. Id. Since the probable cause standard recognizes that a degree of uncertainty may exist, an officer need not have sufficient proof to convict but he must have more than a mere suspicion. Id. “The 11?facts need not eliminate all possible innocent explanations in order to support a finding of probable cause.” Id. The determination of reasonable grounds for probable cause for an arrest does not rest on the officer’s subjective beliefs or attitudes, but rather turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Hill, 01-1372, p. 4 (La. App. 5 Cir. 5/15/02), 821 So.2d 79, 83. However, while considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer that might elude an untrained person. Id.

In this case, we find Sergeant Huth did not have probable cause to arrest the defendant for disturbing the peace. LSA-R.S. 14:103 defines disturbing the peace as:

A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or
(3) Appearing in an intoxicated condition^]
LSA-R.S. 14:103.

LSA-R.S. 14:103 requires the specific intent to deride, offend or annoy another person. McDaniel v. Green, 99-1087 (La.App. 3 Cir. 12/22/99), 755 So.2d 942, 948, review denied, 00-0200 (La.3/24/00), 758 So.2d 151. The words “foreseeably disturb or alarm the public” have previously been interpreted by the Louisiana Supreme Court to “encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance.” State v. Champagne, 520 So.2d 447, 451 (La.App. 5 Cir. 2/8/88), writ denied, 530 So.2d 563 (1988), quoting Garner v. State of La., 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961).

“[T]he First and Fourteenth Amendments to the U.S. Constitution require great care in the regulation of speech.” State v. Woolverton, 474 So.2d 1003, 1005 (La.App. 5 Cir. 7/29/85). Only fighting words, which by their very utterance inflict injury, that tend to incite an immediate breach of the peace are punishable. State v. Woolverton, 474 So.2d at 1005. Words that are not considered fighting words are constitutionally protected expressions. Id.

Sergeant Huth testified that the defendant talked to the people he approached in a loud, excited and boisterous manner. However, Sergeant Huth did not testify that during the time he observed the defendant that he addressed any offensive, derisive, or annoying words to anyone while on the second floor of the parking lot. In addition, Sergeant Huth did not testify that the defendant called anyone by any offensive or derisive name, made any noise or exclamation in anyone’s presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty. In fact, Sergeant Huth’s testimony was totally lacking in regards to the words used by defendant. There was no evidence presented showing the defendant’s words or the manner in which he spoke would induce a foreseeable physical disturbance. A witness may testify to the behavioral observations of intoxication. State v. Champagne, 520 So.2d at 450. However, a violation of LSA-R.S. 14:103(A)(3) requires that the person “is present in public while intoxicated, and not when he merely looks like he is intoxicated,” and that he “disturb[] the peace ... in such a manner as would foreseeably disturb or alarm the public.” State v. Champagne, 520 So.2d at 451.

Sergeant Huth did not testify what specific behaviors led him to believe that the defendant was under the influence of drugs. Sergeant Huth only gave a vague | ^description of the actions of the defendant. He described the defendant as having “loud behavior” and being “extremely excitable or jumping [sic] moving back and forth .... ” only after he stopped him. Nothing in Sergeant Huth’s testimony showed that the defendant’s actions had the intent to deride, offend or annoy the people he approached or that they were violent or boisterous in a manner that would induce a foreseeable physical disturbance. In fact, according to the defendant, he had left the parking lot and was attempting to get into a car to leave the area when Sergeant Huth stopped him. Therefore, we do not find there was sufficient cause to arrest the defendant for disturbing the peace under LSA-R.S. 14:103(A)(3).

Since we find no probable cause to arrest the defendant for disturbing the peace, we must next decide whether Sergeant Huth exceeded the scope of the Terry pat down, because the defendant only consented to a search for weapons. While Sergeant Huth may have had justification for the investigatory stop, the scope of the search appears to be outside the level of intrusion authorized in Terry.

The Terry court found that “it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Terry v. Ohio, 392 U.S. at 24, 88 S.Ct. at 1881. However, the search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882.

In this case, Sergeant Huth did not know what type of weapon the defendant might have in his possession. He testified that people in the area had been found in possession of needles and other objects that could harm him or others. Therefore, Sergeant Huth seems reasonably justified in patting down the defendant.

I ifiThe crucial question, in this case, is whether the object felt by Sergeant Huth in the pat down was simultaneously and immediately identifiable with the search for weapons pursuant to the “plain feel” doctrine. In this case, we find the object was not simultaneously and immediately identifiable.

The “plain feel” doctrine applies to situations where an officer discovers contraband through the sense of touch during an otherwise lawful Terry search. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), State v. Sam, 905 So.2d at 385. The United States Supreme Court explained the “plain view” doctrine in Dickerson.

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Dickerson, 113 S.Ct. at 2137.

Therefore, the “plain feel” exception allows an officer conducting a pat down search to seize contraband where the incriminating character of the object is immediately apparent to the officer without any additional form of search or examination to identify it as contraband. State v. Haywood, 00-1584, p. 7 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 577.

The defendant only consented to a search for weapons. Sergeant Huth testified that during the pat down, he immediately felt an object that he thought was a marijuana joint. He admitted that when he removed the dollar bill he knew it was not a marijuana joint. When he took the dollar bill out of the defendant’s pocket all he could see was the way it was folded, however he knew the folded dollar bill was not a needle, knife, gun, or other weapon. He did not know what was inside of the dollar bill, because he could not see anything. He was unable to |1fitell that the folded dollar bill contained a piece of cellophane with cocaine inside until he unfolded it. As in Dickerson, supra, Sergeant Huth’s search of the defendant exceeded the scope of a Terry search when the officer continued to examine the dollar bill after he concluded it was not a weapon and was unable to ascertain that it contained drugs without unfolding it. Therefore, the seizure of the evidence exceeded the scope of a valid Terry pat-down search and was unlawful.

Finally, the State argues that the cocaine would have been inevitably discovered in a search incident to the defendant’s lawful arrest for disturbing the peace under LSA-R.S. 14:103(A)(2) and (3).

“The inevitable discovery doctrine ‘is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if, in fact, it was discovered through an independent source, it should be admissible if it inevitably would have been discovered.’” State v. Vigne, 01-2940 (La.6/21/02), 820 So.2d 533, 539, quoting Murray v. U.S., 487 U.S. 533, 539,108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988) (emphasis omitted). The inevitable discovery doctrine, as well as the independent source doctrine, seeks to avoid excluding evidence the police would have obtained if no misconduct had taken place. State v. Vigne, 820 So.2d at 539, citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The State has the burden of proving by a preponderance of the evidence that information inevitably would have been discovered by lawful means. State v. Vigne, 820 So.2d at 539. The application of the inevitable discovery doctrine focuses on demonstrated historical facts capable of ready verification ■ or impeachment, not speculative elements.- Id.

In the present case, we find there was no probable cause to arrest the defendant for disturbing the peace. In the absence of a showing of probable cause |i7to arrest, the search exceeded the scope of a valid pat down search and was unlawful. Therefore, the evidence was unlawfully seized.

Consequently, we reverse the district court’s denial of defendant’s motion to suppress and grant the motion. In addition, the defendant’s conditional guilty plea under State v. Crosby and his sentence are vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

ERROR PATENT REVIEW

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals one error patent in this case.

The commitment and the transcript are inconsistent. The commitment states that the defendant had three months from the date of his sentencing, January 13, 2005, to complete 100 hours of community service. However, the transcript of the sentencing hearing states that the defendant has 90 days to complete the 100 hours of community service indicated on the probation form. In addition, the “Acknowledgment and Waiver of Constitutional Rights— Guilty Plea” form signed by the defendant does not give any date or time period for the completion of the 100 community service hours. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand, the matter and order the trial court to correct the commitment to reflect that the defendant’s community service hours must be completed within ninety days.

| ^Accordingly, the trial court’s denial of defendant’s motion to suppress is reversed and defendant’s guilty plea and sentence are vacated. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

GUIDRY, J., dissents with reasons.

GUIDRY, J., dissents with reasons.

_JjBased on my review of the matter, I conclude that the constitutional require-merits for the stop, search, and seizure have been met, and that the Motion to Suppress the Evidence was properly denied.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Donald P. LEONARD.
    No. 06-KA-361.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Martin Belanger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡.Defendant, Donald P. Leonard, was charged in April of 2005 by bill of information with possession of cocaine, in violation of LSA-R.S. 40:967 C. On May 24, 2005, he pled not guilty to this charge. Defendant filed a motion to suppress, which was denied by the trial court on November 16, 2005. On this same date, after the trial court advised him of his rights, defendant withdrew his not guilty plea and pled guilty under Crosby. He was sentenced to two years imprisonment at hard labor, with all but 14 days of this sentence suspended. Defendant was placed on active probation for two years and was ordered to pay all fines and fees set forth in his probation form. Defendant filed a motion for appeal on November 16, 2005, which was granted by the trial court on November 28, 2005.

\ .FACTS

The facts underlying this case were set forth at the November 16, 2005 hearing on defendant’s motion to suppress evidence and statements. Officer Donald Galiano of the Westwego Police Department testified that on April 9, 2005 at approximately 1:00 a.m., while he was on duty in a marked Westwego police unit, he observed defendant riding his bicycle eastbound in the 200 block of Fifth Street. Officer Galiano provided that the bicycle did not have a headlight, which is a traffic violation; therefore, defendant was pulled over. According to Officer Galiano, he exited his vehicle and, as he approached, defendant threw a brown crumpled piece of paper to the ground. Officer Galiano retrieved the paper, opened it, and observed two rocks, which were field tested and revealed the presence of cocaine. Officer Galiano testified that defendant told him that he found it and would tell him where he found it, but then defendant subsequently provided that he would tell the officer where he purchased it. Defendant was arrested for the bicycle headlight violation and for possession of cocaine.

Defendant testified at the hearing that Officer Galiano told him he was stopped because his reflector was busted, which defendant claims was false, and because the officer could not see him riding in the street. Defendant admitted that his bicycle did not have a light. Defendant further testified that he did not discard a piece of paper; rather, as he was finding his identification, the officer grabbed the piece of paper out of his hand. Defendant admitted that he had crack cocaine and that he knew it was crack cocaine.

DISCUSSION

On appeal, defendant argues that the trial court erred by denying his motion to suppress evidence, because the offense for which he was stopped was so minor, obscure and essentially unenforced that it must be presumed that it served only as a pretext utilized by the arresting officer to justify an intrusion into defendant’s right |4to be free from governmental intrusion. Defendant further contends that the officer’s actions in stopping him amounted to an intrusion into his right to privacy. As such, defendant is only challenging the legality of the initial stop.

The State responds that the LSA-R.S. 32:329 violation gave the officer the legal right to stop defendant and, therefore, the trial court did not err in failing to suppress the evidence encountered as a result of the legal stop. The State further provides that once the officer stopped defendant and defendant threw the cocaine to the ground, the officer was within his legal right to confiscate the cocaine and to arrest defendant.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Id. Warrantless searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335-336. The State bears the burden of proving the admissibility of evidence that is seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574. A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1 and by state and federal jurisprudence. State v. Burciaga, 05-357 (La.App. 5 Cir. 2/27/06), 924 So.2d 1125, 1129 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984)). According to LSA-C.Cr.P. |fiart. 215.1(A), “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

Traffic violations serve as valid bases for investigatory stops. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 881. Moreover, the Louisiana Supreme Court has held that a traffic law violation is a reasonable basis for an officer to stop a bicyclist. State v. Flowers, 04-190 (La.App. 5 Cir. 7/27/04), 880 So.2d 887, 889; State v. Washington, 00-1936 (La.12/15/00), 775 So.2d 1066.

Defendant argues that the offense for which he was stopped was so minor and essentially unenforced that it must be presumed that it served only as a pretext. However, both the federal and state supreme courts have held that officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Kalie, supra. Generally, the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred. State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1056. The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id. See also State v. Sherman, 05-0779 (La.4/4/06), 931 So.2d 286, 297, in which the Louisiana Supreme Court held:

Where the police have probable cause to effect a lawful custodial arrest, and conduct a search of that person incident to arrest, the fruits of that search may not be suppressed merely because the police did not intend to arrest the suspect for the offense for which probable cause existed.

In the instant case, the evidence adduced at the suppression hearing showed that the officer had reasonable grounds to stop defendant on his bicycle after | (¡observing a traffic violation. At nighttime, defendant was riding a bicycle which was not properly equipped with a headlamp, in violation of LSA-R.S. 32:329(A) which provides the following:

Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least five hundred feet to the front and with a red reflector on the rear and a reflector on each side facing outward at a right angle to the bicycle frame, all of a type approved by the department which shall be visible from all distances within six hundred feet to one hundred feet to the rear when directly in front of lawful lower beams of headlamps on a motor vehicle. A lamp emitting a red light visible from a distance of five hundred feet to the rear may be used in addition to the red reflector.

In State v. Flowers, supra at 888-889, while on patrol, the officers observed the defendant riding a bicycle in the middle of the road and swerving erratically in front of their unmarked police vehicle, posing a potential impediment to the flow of automobile traffic. After stopping the defendant, one officer saw the defendant drop something on the ground. The object, a plastic bag containing rocks which tested positive for cocaine, was retrieved by the officer. Thereafter, the defendant was arrested and issued a traffic ticket. The defendant argued that the crack cocaine seized by the officers was suppressible as the fruit of an illegal stop and asserted that the officers did not have probable cause to believe he had violated a statute or ordinance. The defendant did not challenge the validity of the seizure itself, but only the legality of the initial stop.

At the suppression hearing in Flowers, both officers testified that their purpose in stopping the defendant was to give him a citation for not riding the bicycle on the right side of the roadway. This Court provided that a combination of circumstances in this case clearly provided the officers with reasonable grounds to stop the defendant, considering the following:

It was late at night, the street was dark, and the area was known as a high crime zone. Defendant was swerving back and forth in the middle of the roadway, causing the officers |7to believe that he may be intoxicated. Also, defendant’s bike had no markings to enable other motorists to see it at night, and defendant apparently did not have either hand on the handlebars. Given these circumstances, we find that the trial judge did not err in denying defendant’s motion to suppress.

Id. at 889-890.

Considering the evidence before us and the applicable statutes and jurisprudence, we find that Officer Galiano was justified in stopping defendant after observing defendant commit a traffic violation when riding his bicycle at nighttime without a headlamp. As such, the trial court did not abuse its discretion in denying defendant’s motion to suppress.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). One error requiring corrective action was noted.

As the State noted in its brief, the trial court failed to properly inform defendant of the time period to file an application for post-conviction relief. Although the commitment reflects that defendant was properly advised of the prescriptive period for filing an application for post-conviction relief, the transcript does not show that he was properly advised. The trial court advised defendant that he had “two years from the date to see [sic] post-conviction relief.” Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). It is also noted that on defendant’s executed waiver of rights form, defendant was advised that he had two years “from the date this conviction is final to seek post-conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598.

| ¡/Thus, we remand the case and order the trial court to advise defendant by written notice within 10 days of the rendition of the opinion that he has two years from the date his conviction and sentence become final to file an application for post-conviction relief, and then to file written proof in the record that defendant received the notice. See State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 835.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence. We remand the matter and order the trial court to inform defendant of the proper prescriptive period for filing post-conviction relief, pursuant to LSA-C.Cr.P. art. 930.8, by sending written notice of such to defendant within ten days of the rendition of this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).