author: COOKS, Judge.

text:
    STATE of Louisiana v. Mitchell Pat MAYEUX.
    No. 2006-944.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 10, 2007.

      Molly L. Balfour, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, Louisiana, for Appellee, State of Louisiana.
    George Lewis Higgins, Higgins Law Offices, Pineville, Louisiana, Angelo Piazza III, Angelo Piazza Law Office, Marksville, Louisiana, for Appellant, Mitchell Pat Mayeux.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

11 STATEMENT OF THE CASE

Mitchell Pat Mayeux, Sr. was convicted by a jury of forcible rape in violation of La.R.S. 14:42.1. Following the jury’s verdict, the trial court ordered a pre-sentence investigation. On the date scheduled for sentencing, Defendant filed a Motion for New Trial and/or Arrest of Judgment. The motion was heard and denied. The Defendant was sentenced to serve thirty years at hard labor. He appeals, asserting several assignments of error:

1) The trial court committed reversible error when the jury convicted appellant of La.R.S. 14:42.1 contrary to law and evidence;
2) The trial court committed reversible error when it allowed other crimes evidence to be admitted into evidence;
3). The trial court committed reversible error when it allowed a Brady violation to stand;
4) The trial court committed reversible error when it allowed the prosecution to prejudice appellant’s right to a fair trial;
5) The trial court committed reversible error when it denied a new trial based on the lack of candidness regarding the jury foreperson in violation of appellant’s right to a fair trial;
6) The trial court erred when it sentenced appellant to an excessive sentence; and,
7) The trial court erred in failing to recuse itself.

For the reasons assigned below, we affirm the conviction, but vacate the Defendant’s sentence and remand for re-sentencing.

STATEMENT OF THE FACTS

The victim, M.R., was the fourteen-year-old next door neighbor of the Defendant and often babysat for his young children. One night in the summer of |⅞1999, Defendant’s daughter, two other girls, and the victim, M.R. had a sleep-over in Defendant’s camper which was parked in the yard at his house. During the night, after the girls fell asleep, the Defendant entered the camper where the victim was sleeping, held the victim’s hands over her head and had sexual intercourse with her.

Errors Patent

In accordance with La.Code CrimJP. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent which requires Defendant’s sentence be vacated. The trial court imposed a sentence of thirty years at hard labor without specifying the number of years to be served without benefit of probation, parole, or suspension of sentence. The penalty provision for forcible rape requires at least two years of the sentence be imposed without benefit of probation, parole or suspension of sentence. La.R.S. 14:42.1. Although La.R.S. 15:801.1 normally obviates the need to correct a sentence when the trial court is silent as to the required term of parole ineligibility, in this case, the statute requires that “at least” two years be served without benefits and gives the trial court discretion as to the number of years imposed to be served without benefits. Accordingly, we vacate the Defendant’s sentence and remand for re-sentencing. See State v. Jones, 02-1176 (La.App. 3 Cir. 2/5/03), 839 So.2d 439, writ denied, 03-886 (La.11/7/03), 857 So.2d 516.

We note the minutes of the jury’s verdict contain an error. The minutes reflect the verdict was unanimous. However, the polling sheet indicates that the verdict was ten to two. We direct that the minutes be amended to correctly reflect the polling sheet.

I ¡Assignment of Error # 1

Defendant argues that the evidence presented at trial was insufficient to sustain the verdict of forcible rape beyond a reasonable doubt. He bases his argument on: 1) inconsistent statements made by the victim; 2) an assertion by one of the girls sleeping in the camper on the night of the alleged incident that it was the victim’s boyfriend who came into the camper; and 3) the ulterior motives of the witnesses who testified that Defendant later bragged to them he had had sex with the victim.

In State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, this court held:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Louisiana Revised Statutes 14:42.1 defines forcible rape, in relevant part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

The victim, M.R., testified that she had lived next door to Defendant’s family for two years prior to the incident. She had become a close friend of the family, visiting often, and would baby-sit Defendant’s children on occasions when Amy |4Mayeux, Defendant’s wife, needed to run errands around town. M.R. also testified she was a friend of Defendant’s oldest daughter.

M.R. testified that one night in 1999, toward the end of summer, she, Defendant’s daughter, and two other girls had a sleep-over in a camper, which was parked in Defendant’s yard. She described the camper as having two bedrooms, a kitchen/living room in between, and a bathroom next to the larger bedroom. She stated that she slept in the smaller bedroom, two of the girls slept in the living room area, and one girl slept in the larger bedroom. She stated that in the early morning hours, she woke up to find Defendant standing over her. He held her hands over her head with one hand and pinned her legs down with his legs. With his other hand he pulled her pajama bottoms off and penetrated her with his penis. She told him to stop, and if he did not, she told him she would tell his wife. Eventually, she wiggled a leg free and kneed him in the stomach and he got off her and left the camper.

M.R. testified that a few days later she told one of the girls, Tiffany Weaver, about the incident, but she did not tell anyone else. She testified the Defendant’s wife confronted her about the incident and accused her of lying.

Four of Defendant’s former co-workers testified at trial. Ronnie Knobles, his brother, Kevin Warren, Dennis Car-mouche, and Bobby Scroggs. All four witnesses corroborate the testimony of the victim.

Ronnie Knobles stated that at the time of incident he worked for Defendant in his water tower painting business. He said that he knew the victim from spending time with Defendant at his home. One evening, on a job site, while he and other co-workers were preparing dinner, the Defendant bragged to them that he had finally had sex with M.R. Knobles testified the admission angered him because he knew the victim was only fourteen.

| r,Kevin Warren corroborated Knobles’s testimony regarding the Defendant’s admission. He testified that he knew M.R. because she was a friend of his brother.

Dennis Carmouche testified that he had worked with Defendant for many years. He corroborated the testimony of Knobles and Warren, stating that “[h]e [Defendant] had his camper at his house or something. The kids [were] in there and he went and he picked her up and walked into another bedroom [sic]carried her in his arms. That he had sex with her. That’s about it.” He stated he did not know the girl was so young until Defendant and Knobles starting fighting about it. Carmouche testified that when he told his wife, she insisted that he quit working with Defendant. He said he quit a short time later, although Defendant told him he was fired.

Bobby Scroggs testified that he had worked with Defendant on and off for several years. He knew the victim because he had seen her at Defendant’s house many times when he had visited. He testified the Defendant had spoken about the victim on several previous occasions. Scroggs testified the Defendant told him about the rape. Scroggs also testified Knobles was so angry when Defendant told them about the incident he threw an ashtray at Defendant. Scroggs also admitted he did not report the incident and that he “shame[d] ... [himself] for not saying anything.”

In brief to this court, Defendant argues that there was no physical evidence presented consistent with a rape allegation. However, Trade Smith, an investigator with the Avoyelles Parish Sheriffs Office, testified that she did not attempt to collect physical evidence because of the three-year interval between the incident in the camper and when the allegation was made to the police in 2002.

Louisiana jurisprudence has consistently held that the testimony of the victim alone can be sufficient to establish the offense, even when there is no physical evidence. State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450; State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 765 So.2d 1066.

Defendant contends the victim made statements during her taped interview that were inconsistent with her trial testimony. The victim testified after Defendant left the trailer, she grabbed her panties and pajama bottoms and ran into the bathroom. At trial, she said she walked to the bathroom. Defendant argues that the victim could not remember if she ran or walked to the bathroom, or “whether the other girls in the camper were on the floor or on the couch in the room between the one she was in and the bathroom.” He further points to the fact that in her initial report to the police, she said he raped her only once, but told a social worker that he raped her twice. Finally, Defendant argues that Tiffany Weaver’s testimony established it was M.R.’s boyfriend who entered the camper on the night of the alleged offense and not Defendant.

Absent internal contradictions or irreconcilable conflicts with physical evidence, a witness’s testimony may be sufficient to support a factual conclusion, and “[t]he fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient.” State v. Holley, 01-254, p. 6 (La.App. 3 Cir. 10/3/01), 799 So.2d 578, 583, quoting State v. Bernard, 98-994 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691.

We find there were no internal contradictions or irreconcilable conflicts in the victim’s testimony given at trial. While Tiffany Weaver testified a man woke her up and asked for the victim, she admitted she did not see his face, and had not told anyone about who she believed the man was until the trial. Further, the testimony of the four men who stated what Defendant had told them about his exploits with the lyvictim contained corroborative facts, tending to prove the victim was with his daughter and some other girls in a camper in his back yard when the offense occurred.

As for the testimony of the four men, Defendant argues in brief only that “[t]hese old employees have either married his wife or taken his business.” Defendant did not testify at trial or present any witnesses on his behalf at trial. However, in his opening argument, during cross-examination, and during his closing argument, Defendant asserted that his wife, Amy Mayeux (who, after the allegations of sexual offenses surfaced, divorced him and later married a co-worker who did not testify at the trial) conspired with the victim, Defendant’s former co-workers, and other members of her family to allege and prove that Defendant committed several sexual offenses in order to deprive him of any rights to his children and his business.

Finally, the jury heard the testimony of D.S.R., the daughter of Defendant’s former wife and half sister to Defendant’s oldest daughter. D.S.R. testified that in the summer of 2002, Defendant sexually assaulted her. One of these offenses was witnessed by Jackie Suazo, Amy Mayeux’s niece. Suazo testified that she and D.S.R. were visiting with Defendant’s family in 2002. Suazo stated she had planned on spending the entire summer with her aunt. The second night after she arrived, she, D.S.R., and Defendant’s daughter were sleeping in the living room when Defendant entered the room, and after turning on the TV and watching it for a while, pulled the covers off D.S.R. and performed oral sex on her. The next morning Suazo called her father and told him what she had seen. The following day, while Defendant was at work, Suazo’s father came and took her home, along with Defendant’s wife and children. It was from this incident that the current offense ultimately came to light.

|sWe find the testimony presented, viewed in a light most favorable to the prosecution, was sufficient to allow the jury to find beyond a reasonable doubt that Defendant committed forcible rape against M.R. She testified she was sleeping when the Defendant crept into the room and jumped on top of her. She awoke to find him sitting on her legs. He held her hands over her head and pinned her legs down with his legs. She struggled to free herself, cried and told him she would tell his wife if he did not stop. Her testimony was consistent both at trial and in her transcribed, taped interview with the police. Her trial testimony is as follows:

Q. In other words, were you agreeing to him doing that to you?
A. No.
Q. Were you trying to make him stop?
A. Yes. I told him to stop.
Q. Did he immediately stop when you first told him?
A. No.
Q. What did he do?
A. He just told me to be quiet. And then I was telling him like if you don’t stop I’m going to tell Amy and he said no you’re not going to tell her. And then after that I started moving my leg around just to get my leg out from underneath him and my knee hit him in the stomach so I just kneed that’s when he got off of me and he had left.

In her transcribed, taped interview, she stated:

Q. Did you tell him to stop?
A. Yeah, I told him to stop about 5 or 6 times and he wouldn’t. I was crying a lot and I wanted to ... I just wanted to ... I wanted to hurt him really bad. That ... at that time. I wanted to wake up Shayne and them but I just ... I couldn’t.
Q. Did you try calling the other girls that were in the camper to wake them up?
13A. No, cause I ... I had started crying when I ... when I start crying, I can barely talk. I ... I can’t nothing to come out of me.

In Schexnaider, 852 So.2d 450, this court concluded that the evidence presented was sufficient to support a verdict of forcible rape when the victim had a reasonable belief that resistance was futile: the victim was young, the accused held her down with his larger body size and weight, and disregarded her pleas to stop. This court noted:

[S]he did not recall Defendant hitting or slapping her and she did not recall hitting, scratching, kicking, or biting Defendant. She explained that when she get[s] frightened, she freezes. She testified: “I was scared and I couldn’t move. I couldn’t say anything.” E.N. stated that she was finally able to tell Defendant “No,” and when she told Defendant she was going to tell her friend Ryan, the Defendant stopped. E.N. also testified that there was really nothing she could do to get the Defendant off of her because from the time the incident started the Defendant had his weight on her. She further testified that there was no one around during or after the rape.

Id. at 454.

In State v. Wilkinson, 00-389 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494, the fifth circuit court affirmed findings of simple rape. In Wilkinson, although the jury found Wilkinson guilty of the responsive verdict of simple rape, the fifth court held that the evidence was sufficient to support the crime of forcible rape when the evidence established the accused pushed the fourteen-year-old victim to the ground and held her down with his body. She testified she was frightened. They were in a secluded area and the victim “could have reasonably believed that screaming would be futile.” Wilkinson, 772 So.2d at 758.

We find sufficient evidence to support the jury’s verdict. The victim testified she awoke to find the Defendant standing over her. He pinned her down on the bed with his legs and held her arms over her head. The victim’s testimony was | ^corroborated by the testimony of several co-workers of the Defendant who testified the Defendant boasted about raping the victim. The jury heard the testimony of D.S.R., the victim’s half sister who stated the Defendant sexually assaulted her. Accordingly, we find the evidence sufficient to support a conviction of forcible rape.

Assignment of Error #2

Defendant argues that the trial court erred when it allowed other crimes evidence to be submitted to the jury. The other crime was the sexual battery offense committed against D.S.R., offered through the testimony of the victim and the eyewitness as discussed above. Defendant argues that admission of the testimony was prohibited by La.Code Evid. art. 404(B)(1), which provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In brief, Defendant argues that the crimes are dissimilar (forcible rape and sexual battery) and the introduction of the evidence of sexual battery would be unduly prejudicial. The State argued that La. Code Evid. art. 412.2 allows the introduction of other crimes evidence. A pre-trial hearing was held. At the hearing, Denise Maslin, a child abuse investigator with the Department of Social Services, testified that she became involved in the investigation in response to an eyewitness’s observation of the alleged sexual battery committed against D.S.R. She contacted the family and interviewed D.S.R. who reported that she had heard of other victims. M.R. was one of the victims D.S.R. had heard about. Maslin learned of the current allegation of rape when she interviewed M.R.

InD.S.R., who was fourteen at the time of the incident, also testified at the hearing. She stated that she was visiting her half-sister, Defendant’s daughter, with Jackie Sauzo, in Defendant’s home. She said that she and the two other girls were sleeping in the living room when Defendant came into the room, pulled her pajama bottoms down, and touched her on the genitals.

Following the hearing, the trial court ruled that based on La.Code Evid. art. 412.2, the testimony of the sexual battery was admissible for the reason it showed a lustful disposition toward young teenage girls and that the probative value of the evidence outweighed the prejudicial effect on Defendant’s case.

Louisiana Code of Evidence Article 412.2(A) provides:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Louisiana Code of Evidence Article 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of under delay, or waste of time.

In State v. Patterson, 05-560 (La.App. 5 Cir. 1/31/06), 922 So.2d 1195, the fifth circuit agreed that the use of other crimes evidence under Article 412.2, while prejudicial, was appropriate. In Patterson, the accused was charged with aggravated rape and evidence of a conviction for a simple rape was introduced. The fifth circuit stated:

Turning to the present case, the incident involving T.K. is highly relevant to show the defendant’s lustful disposition toward teenage girls. It also shows his propensity to sexually assault teenage girls while armed with a dangerous weapon while they are home with no other adult present. For the same reason that the evidence is probative, the evidence of the prior sexual conduct is prejudicial to defendant. State v. Olivieri, [03-563 (La.App. 5 Cir. 10/28/03),] 860 So.2d [207] at 219. However, as observed by Olivieri, by enacting Article 412.2, the Louisiana Legislature evidently saw a need to lower the obstacles to admitting propensity evidence in sexual assault cases. Id. at 219. Considering the purpose behind Article 412.2, we fail to find that the evidence was so prejudicial so as to warrant its exclusion because there is no indication that the other crimes evidence confused or misled the jury, the evidence was presented in an orderly manner, with evidence of the prior sexual conduct being presented at the end of trial, clearly and succinctly through the testimony of the victim of that offense. Further, the trial court gave a limiting instruction on the other crimes evidence during the final jury charges. Thus, there was little chance the jury could confuse the facts of the two crimes.

Id. at 1204. See also, State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So.2d 113, writ denied, 02-1280 (La.11/27/02), 831 So.2d 269, wherein the accused was charged with aggravated rape and evidence of a similar crime was allowed to be introduced to show the occurrence of a crime through a common design. Moreover, as asserted by the State, the details of how the offense committed against M.R. came to light was necessary to the State’s presentation of its case. In State v. Willis, 05-218, p. 26 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 385, writ denied, 2006-0186 (La.6/23/06), 930 So.2d 973, this court stated:

[t]he clear wording of the statute covers evidence of other sexual offenses and anything that forms an integral part of that act. Integral act evidence is evidence that is “related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it.” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1075 (quoting State v. Brewington, 601 So.2d 656, 657 (La.1992)).

In the present case, the trial court specifically instructed the jury as follows:

The evidence that alleges that the defendant was involved in the commission of a crime, wrong or act other than the offense for which he is on trial is to be consider[ed] only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show the defendant’s lustful disposition toward and pre-interest[sic] in young early teen girls. Remember the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.

113We find the trial court did not abuse its discretion when it permitted the introduction of the evidence of the sexual offense committed against D.S.R. The evidence was relevant to show Defendant’s lustful disposition toward young teenage girls. While one incident involved rape and one incident involved oral sexual contact, in both cases, Defendant sought out fourteen-year-old girls, who were guests in his home, late at night after they fell asleep.

Lastly, the Defendant argues the notice provided by the State was inadequate in that it did not specify the exact date of the prior offense. The State filed the notice of intent to introduce other crimes evidence on January 5, 2006. Included in the notice was a statement by Jackie Sauzo who stated the incident of sexual battery she witnessed occurred in the summer of 2002. In State v. Willis, 915 So.2d 365, the notice provided by the State contained the name of the defendant’s prior victim, the years in which the alleged acts occurred and the parish of the incidents. The defendant was also provided with information regarding the testimony of the witnesses. This court found the notice adequate and noted that the defendant could have interviewed the witnesses named in the notice.

In the present case, we do not find the Defendant was prejudiced by the notice filed by the State. He was provided with the name of the adverse witness and the time period of the prior offense. He could have interviewed the witness named in the notice and obtained the details of the alleged prior act. The evidence of a prior sexual battery was clearly admissible at trial. We find no merit in this assignment of error.

Assignments of Error # 3 and 4

In his third and fourth assignments of error, Defendant alleges that the trial court erred when it permitted a Brady violation to stand. Defendant asserts that State’s “star witness was on probation and in violation of same. That provided him |umotive to cooperate with law-enforcement which the appellant had a right to reveal to the jurors.”

The duty of a prosecutor to disclose exculpatory evidence is embedded in the principle that a criminal defendant is deprived of a fair trial when the state withholds exculpatory evidence that is material to guilt or punishment. The state’s failure to disclose material evidence favorable to a criminal defendant implicates more than the defendant’s discovery rights; the prosecutor has an affirmative duty to disclose such evidence under the Fourteenth Amendment’s Due Process Clause. Failure to reveal this evidence implicates the defendant’s right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Marshall, 94-0461 p. 12 (La.9/5/95), 660 So.2d 819, 825.
Exculpatory evidence includes evidence which impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Additionally, United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985), reiterates the principle that there is no distinction between exculpatory evidence and impeachment evidence under Brady.

In re Jordan, 04-2397, pp. 9-11 (La.6/29/05), 913 So.2d 775, 781-82.

On May 8, 2006, Defendant filed a “Motion for New Trial and/or Arrest of Judgment.” The Defendant argued Bobby Scroggs, the State’s “star witness” was not “completely candid” about his criminal background in that he failed to tell the jury he was on probation. At the hearing, held on the same date, Defendant advised the trial court that he had just learned of the probation and that the “State had the burden of ferreting out that information, providing that to the defense because it could be used as ammunition in the cross examination of their star witness.”

The State responded as follows:

It was my understanding the defense received rap sheets of the witnesses. He indicated that he didn’t, however, let me remind the court that Mr. Scroggs took the witness stand. The defense asked him specifically did he have any convictions. The witness testified specifically he had a conviction for DWI which is born out by the rap sheet and that is his only conviction. And let me just say there was no, |1Kto my knowledge, there was no questions ever asked of Defendant whether he was on supervision because of DWI. In fact I believe that the defendant could have only asked him do you have a conviction, what it was for. I don’t think even if he wanted to he could of gotten into whether he was on supervision or not. I think ... so with respect to any type of lack of candor on a part of the witness I would submit to the court that it is without merit. The witness honestly answered what he was convicted for, the rap sheet ... the defense counselor now has a copy of born out that testimony in total.

Defendant offered the testimony of Norma Lemoine, who was the misdemeanor probation officer for the Twelfth Judicial District Court. She testified that Scroggs was convicted of operating a vehicle while intoxicated in 2004, second offense, and was currently on probation. She said that he had not completed the terms of his probation at the time of the hearing.

The trial court denied Defendant’s motion for a new trial and ruled that Bobby Scroggs did not get any favorable treatment toward his operation of a vehicle while intoxicated offense in exchange for his testimony at trial.

The United States Supreme Court has determined that there are three components of a true Brady violation: The evidence must be favorable to the accused, either exculpatory or impeaching in nature; the evidence must have been suppressed by the State either willfully or inadvertently; and there must be prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); State v. Louviere, 00-2085 (La.9/4/02), 833 So.2d 885, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). Moreover, the evidence must be “material.” Evidence is material only if it is reasonably probable that the result of the trial would have been different had the evidence been disclosed to Defendant. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

|1fiFor the first prong of the test for a Brady violation, while Defendant asserts that Bobby Scroggs was in violation of his probation and therefore he could have received favorable treatment in exchange for his testimony, the fact that three other witnesses testified to the same set of facts indicates that Scroggs’s possible probation violation was not evidence favorable to Defendant. Even had Defendant been able to impeach the witness, there was still the testimony of the three other men.

As for the second prong of the test, because apparently the conviction of one of the other witnesses was disclosed, it could be presumed the State inadvertently failed to disclose Scroggs’ conviction.

Finally, three other witnesses testified to the same facts that Bobby Scroggs testified to, that Defendant bragged about his late night conquest of the fourteen-year-old victim, M.R. Defendant cross-examined all of the four men regarding their motives for testifying as they did. Defendant has not shown there was prejudice in that there was a reasonable probability that the result of the trial court would have been different had he known about the witness’s conviction and possible probation violation.

We find the information of the witness’s conviction and possible probation violation was not material, and the failure of the State to disclose this information did not have an effect on the outcome of the trial. Accordingly, there is no merit to these two assignments of error.

Assignment of Error # 5

Defendant alleges that the trial court erred when it did not grant his motion for a new trial based on the fact the jury foreman failed to disclose a relationship with a member of the victim’s family. In his motion for a new trial, Defendant asserted:

Additionally, the foreman of the jury which convicted this defendant, misled the defense counsel about his knowledge of this case. |17It is in fact alleged that the foreman of this jury has, both in the past and present, a close relationship to the victim’s family. This relationship not only stems to friendship, but in-house visits and business relationships with the alleged vietims[sic] family.

The transcript of the voir dire was not included with the record before this court. At the hearing on Defendant’s motion for a new trial, Lawrence Sheppard testified that he was the foreman of the jury that convicted Defendant. The witness agreed that the night after the verdict was rendered, he rented a house to the brother of the victim’s stepfather, a man named D.G. He further testified he knew many of the participants of the trial outside of the courtroom, including the defense attorneys because he owned a local bar and Defendant and several of Defendant’s and the victim’s family members patronized the bar on occasions. He stated that he had informed the trial court of this fact during voir dire.

Q. Well, how about the step-dad’s brother, you know him?
A. Yes, sir.
Q. Tell the Judge how you know the step-dad’s brother?
A. He recently rented a house from me.
Q. He rented a house during this trial from you, didn’t he?
A. It was shortly after that I believe.
Q. You don’t remember the exact dates?
A. I don’t remember the exact dates.
Q. The night after this trial you met with him, didn’t you? Think about it, you’re under oath.
A. I may have. I may have met with [D.G.], yes.
Q. You’re sure about that?
A. Right.
Q. The uncle of the victim?
IirA. Okay.
Q. Did you tell us about that? Did you tell us when I was asking you about relationships ...
A. It was a man that was looking for a place to live and I offered my home to him.
Q. Did you tell us when we questioned you about what type of relationship you ...
A. At that time he was not interested in the house.
Q. Well, what were you meeting with him the night that the trial ended on?
A. I don’t remember what night I had met with him.
Q. It’s your testimony under oath that you do not have an relationship with the step-uncle of the victim in this case until after this trial, is that your testimony?
A. You’re asking if I had any relations with the people that was the witnesses or with Mitchell Mayeux.
Q. The question ...
A. That was the question I remember in court.
Q. But, so you think that perhaps you could have rented him property during this trial?
A. I may have, but I don’t see what that’s got to do with the witnesses.
Q. I understand that and I understand that, but I think the Judge’s question was broader than our question when he asked you about knowledge of the [G.j family, etcetera.
A. No, he didn’t ask me about knowledge of the [G.] family.
Q. And we’re going to get a transcript.
A. He asked me if I knew any of the witnesses.
Q. Sir, is it a fact that the Judge asked you did you know the persons on the witness list that was called out to you?
A. That’s correct. The best I can remember that’s what was asked of me.
Q. Did you know the witnesses, correct?
A. That’s what was asked of me.
Q. And Mr. [D.G.] was not on the witness list?
A. No.

The trial court ruled:

With regard to Mr. Sheppard his involvement in the case I think he answered all the questions truthfully and honestly to the best of his ability and I (UNINTELLIGIBLE) earlier about the seven reasons of separation. I just believe in this parish you can always find that someone has an uncle or an aunt has contact with them and low and behold sometimes even a fiduciary relationship, whether it be a lease contract or bought a bicycle from them or it’s just ... everybody is connected to everybody and these issues are very similar. (UNINTELLIGIBLE) issues crop up all the time and issues of recusing the Judge because he went to a supper where so and so attended and things of that nature and it’s impossible to ... in voir dire nothing further was asked of Mr. Sheppard nor should anything have been apparently, but that would have been the opportunity. I think he answered truthfully and honestly and I think he followed his oath and there’s nothing, nothing shown to me in the transcript or anything.

Before an accused can challenge a juror because of a connection or relationship between the juror and one of the participants of a trial, it must be shown that the relationship was such that would preclude the juror from arriving at a fair verdict. State v. Wilson, 01-625 (La.App. 3 Cir. 12/28/01), 806 So.2d 854, writ denied, 02-323 (La.9/13/02), 827 So.2d 1121. See also State v. Chapman, 410 So.2d 689 (La. 1981).

In Wilson, the appellant claimed the trial court erred when it refused to dismiss a juror who revealed that she knew the sister of one of the State’s witnesses. In fact, the sister often stayed with the juror in her house. This court did not find error, citing State v. Weaver, 99-2177, pp. 6-7 (La.App. 4 Cir. 12/6/00), 775 So.2d 613, 618, writ denied, 01-70 (La.6/27/03), 847 So.2d 1255, which in turn cited State v. Holland, 544 So.2d 461 (La.App. 2 Cir. 1989), writ denied, 567 So.2d 93 (La.1990), as follows:

A trial judge is granted great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed without a showing of an abuse of that discretion. State v. Jones, 474 So.2d 919 (La.1985). Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Peterson, 446 So.2d 815 (La.App. 2d Cir.1984). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Hodgeson, 305 So.2d 421 (La. 1974).

Wilson, 806 So.2d at 862.

In the current case, the trial court asked Mr. Sheppard whether he ever discussed the case with D.G. He answered, “No.” The trial court then asked if in anyway the rental agreement was tied into the case. Again, he answered, “No.”

We find the trial court did not abuse its discretion when it deemed the juror was forthcoming with his disclosure at trial. The Defendant failed to show the jury foreman had a close personal and business relationship with the victim’s family as claimed, or that the connection between the juror and the victim’s step-uncle was such that would have influenced the juror’s decision as to Defendant’s guilt or innocence. Accordingly, this assignment is without merit.

Assignment of Error # 6

Defendant was convicted of one count of forcible rape, a violation of La.R.S. 14:42.1, which provides for a range of imprisonment of no less than two years and no more than forty years at hard labor. Defendant asserts his sentence of thirty years, without diminution of sentence, was constitutionally excessive under the circumstances of his ease. We need not reach the issue of excessiveness because we vacate the Defendant’s sentence and remand for re-sentencing.

| ^Assignment of Error # 7

For his final assignment of error, Defendant asserts that the trial court erred when it did not recuse itself from the case. In brief, Defendant states:

[T]he Honorable Mark A. Jeansonne, District Judge, presiding over this case, revealed to defense counsel that he had personal knowledge of another alleged victim of Defendant, Michel Pat May-eaux[sic]. The trial court revealed that a female friend of his had confided in Judge Jeansonne, that she too had been a victim of Michel[sic] Pat Mayeaux[sic] when she was a young girl, but had never reported this to the police.

On the morning of October 24, 2005, Defendant made an oral motion to recuse Judge Jeansonne. A hearing was held before Judge Rae Swent. The motion was denied. Defendant asserts that Judge Jeansonne “should have been removed from this case to avoid any appearance of impropriety to Defendant, his family, and supporters of Defendant.”

Louisiana Code of Criminal Procedure Article 671 provides:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(4) Is a witness in the cause;
(5) Has performed a judicial act in the case in another court; or
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

| aJt is well-settled jurisprudence in Louisiana that a trial judge is presumed to be impartial. State v. Spooner, 550 So.2d 1289 (La.App. 1 Cir.1989), writ denied, 566 So.2d 394 (La.1990); Willis, 915 So.2d 365. Of the grounds for recusation listed above, Article 671(A)(1) and (6) would be most appropriate to Defendant’s claim. Accordingly, for an accused to be entitled to the recusation on the grounds of bias, prejudice, and personal interest, such bias, prejudice and personal interest must be of a substantial nature based on more than mere eoncluso-ry allegations. Willis, 915 So.2d 365. In State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 05-2394 (La.4/17/06), 926 So.2d 511, the second circuit held that simply because the trial judge disclosed that he was a friend of two of the victims was not sufficient in itself to require the recusal of the judge. The second circuit stated that the burden is on Defendant to dispel the presumption that the trial court is impartial, and there must be a substantial basis for the allegation. In the present case, a revelation by Judge Jeansonne that he knew someone who claimed to be a victim of Defendant, without more, is not sufficient to show prejudice or bias on his part. We find no merit to this argument.

DECREE

Based on the foregoing review of the record, we affirm the conviction of the Defendant. However, because the trial court failed to designate the number of years to be served without benefits, we vacate the sentence of the Defendant and remand for re-sentencing. We also order that the minutes be corrected to reflect that the jury’s verdict was ten to two for conviction.

CONVICTION AFFIRMED;

SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.

      . In compliance with La.R.S. 46:1844(W), the victim’s initials will be used to protect her identity.

      . While D.S.R. was not the victim in the current case, Defendant was charged with a sexual offense concerning the girl.


source: Caselaw Access Project

author: PER CURIAM. ARMSTRONG, C.J., JONES, J., TOBIAS, J., TOBIAS, J., CANNIZZARO, J.,

license: Public Domain

text:
    Scott G. VINCENT v. Janet P. VINCENT. Scott G. Vincent v. Janet P. Vincent.
    Nos. 2005-CA-1175, 2006-CA-1312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.
    Rehearing Denied Feb. 22, 2007.
    Opinion Concurring in Denial of Rehearing Feb. 22, 2007.
    Nancy K. Durant, Metairie, LA, for Plaintiff/Appellant.
    Rita K. Akehurst, II, Lauren E. Brisbi, Jamison P. Bagwell, Rita Akehurst & Associates, Harvey, LA, for Defendant/Ap-pellee.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.
   PER CURIAM.

11 This Court considered the appeal of Scott G. Vincent and pursuant to Article V, Section 8 of the Louisiana Constitution of 1974, the matter was re-argued before a five-judge panel of this Court. Subsequently, Mr. Vincent filed an application for a supervisory writ, numbered 2006-C-1312, which was ordered consolidated with this appeal.

The five-judge panel of this Court issues the following decree:

IT IS ORDERED, ADJUDGED AND DECREED that a majority of the court finds that the district court did not err in awarding interim spousal support in the amount of $10,044.29 per month. Therefore, the award of interim spousal support is affirmed;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a majority of the court finds that the district court did not err in awarding permanent alimony. One judge would affirm the award of the district court; however, the other two judges would amend and affirm as amended the award of permanent alimony by reducing the permanent alimony to Three Thousand ($3,000.00) | ^dollars per month. Further, a majority of the panel would limit the award of permanent alimony to a period of five (5) years. Therefore, pursuant to Butler v. Zapata Haynie Corp., 94-1171 (La.7/5/94), 639 So.2d 1186, the award of permanent alimony is Three Thousand ($3,000.00) dollars per month for five years.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a majority of the court finds that the district court erred in assessing to Mr. Vincent the costs of all attorney’s fees in this matter. Therefore, that portion of the judgment assessing all attorney’s fees to Mr. Vincent is reversed;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a majority of the court finds that the district court did not err in assessing all court costs to Mr. Vincent. Accordingly, the assessment of all court costs to Mr. Vincent is affirmed;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in all other respects the judgment of the district court is affirmed;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Relator’s writ application numbered 2006-C-1312, is rendered moot by this decree.

AMENDED AND AFFIRMED AS AMENDED IN PART; AFFIRMED IN PART; REVERSED IN PART; WRIT APPLICATION — MOOT.

ARMSTRONG, C.J., and JONES, TOBIAS and CANNIZZARO, JJ., concur in part and dissent in part.

LOMBARD, J., concurs in part and dissents in part for the reasons assigned by JONES, J.

ARMSTRONG, C.J.,

concurring in part and dissenting in Part.

hi join in the per curiam insofar as it affirms the trial court’s award of permanent alimony to Mrs. Vincent. However, having reviewed the record in its entirety, I am persuaded that the trial court did not abuse its discretion and correctly awarded Mrs. Vincent interim spousal support in the amount of $10,044.29 per month, terminating upon the date of divorce, and final support in the amount of $7,275.20 per month for five years from the date of divorce, together with all attorney’s fees and costs. Therefore, I would affirm the judgment of the trial court.

JONES, J.,

concurring in part and dissenting in part.

hi respectfully concur in part and dissent in part in the majority’s opinion for the following reasons.

The Appellant, Scott Vincent (hereinafter “Mr. Vincent”), seeks review of a district court judgment awarding the Ap-pellee, Janet Vincent (hereinafter “Ms. Vincent”), interim support in the amount of $10,044.29 per month, terminating upon date of divorce; final support in the amount of $7,275.20 per month for five years from the date of divorce, and all attorney’s fees and costs.

Statement of Facts and Procedural History:

Mr. and Ms. Vincent were married on May 26, 1990, and have no children. The parties executed a separation of property regime agreement (hereinafter “the agreement”) on the date of their marriage, placing the parties under a separate property regime. The parties subsequently filed a joint petition for court approval of the agreement. The district court rendered judgment on May 6, 1991, validating the agreement between the parties and toward third persons as of May 26,1990.

Mr. Vincent later filed for divorce on May 19, 2004, which was subsequently granted on December 21, 2004. Following the divorce, a Special Master was appointed by court order to assist in partitioning the community ^property. In accordance with La. R.S. 13:4165, the Special Master filed a proces verbal finding the separation of property agreement valid. No objections to the Special Master’s findings were filed. On March 10, 2005, the district court decreed that the agreement and judgment validating the agreement were enforceable and had not been renounced.

On September 29, 2004, the district court entered an “Interim Order” based upon a consent agreement between the parties. The order directed Mr. Vincent to pay $3,000 per month to Ms. Vincent in interim support, and $2,000 per month to Ms. Vincent’s health care provider for her physical therapy. Interim support was increased to $18,986.56 per month on December 15, 2004, via another order issued by a different trial judge. The order that increased the award was issued without a contradictory hearing. This order was based upon a document provided by Ms. Vincent declaring Mr. Vincent’s monthly income to be $39,973.11. The order further acknowledged that Mr. Vincent made payments of $21,000 in support and $10,000 in medical bills for Ms. Vincent’s physical therapy in accordance with the September 2004 order.

As a result of the “Interim Order,” Mr. Vincent filed a Motion for New Trial, which was granted by the district court on March 7, 2005. Following the three-day trial, the district court rendered a judgment on April 18, 2005. The district court found Ms. Vincent free from legal fault in the dissolution of the marriage. Additionally, the district court found Mr. Vincent in contempt for failing to pay support, to disclose his income, and to produce financial information. | ¡¡The district court, however, explicitly chose not to impose penalties on Mr. Vincent.

Relying upon Ms. Vincent’s income and expense list, the district court awarded her interim support in the amount of $10,044.29 per month, retroactive to the date of filing, terminating upon rendition of the divorce judgment. The district court additionally awarded Ms. Vincent final support in the amount of $7,275.20 per month for five years from the date of divorce. Finally, the district court awarded Ms. Vincent all attorney’s fees and costs.

Mr. Vincent timely filed the present appeal alleging that the amounts awarded by the district court’s judgment in interim support, final support, and attorney’s fees and costs are extremely high, and not supported by facts or law. He further claims that the awards will significantly deplete his assets and income, thus causing irreparable injury.

This Court considered the appeal of Scott G. Vincent and pursuant to Article V, Section 8 of the Louisiana Constitution of 1974, the matter was re-argued before a five-judge panel of this Court. Subsequently, Mr. Vincent filed an application for a supervisory writ, numbered 2006-C-1312, which was ordered consolidated with this appeal.

Law and Discussion:

Separation of Property Regime Agreement

Mr. Vincent alleges that the district court failed to consider the valid separation of property regime agreement between the parties, thus erroneously awarding final support to Ms. Vincent. Property acquired during marriage is community property. La. C.C. art. 2340. However, in Clay v. United States, the United States Court of Appeals for the Fifth Circuit held that the Louisiana Civil |4Code articles defining separate and community property are mandatory only in the absence of a prenuptial agreement. Clay v. U.S., 161 F.2d 607, 610 (5 Cir.1947).

The record reveals that the parties entered into an agreement on May 26, 1990, thereby placing them under a separate property regime. The agreement provides in pertinent part:

IV.

Each party owns substantial para-phernal property, including but not limited to, cash, real estate, mineral interests, bonuses, delay rentals, royalties, overriding royalty interests, and shut-in payments arising from mineral leases. Any natural or civil fruits, revenues or products of any paraphernal property shall fall into the separate estate of the owner of that separate asset. The owner party shall use and administer such property separately and alone. The non-owner party shall have no claim to or interest in the other party’s separate assets or the fruits, revenues or products thereof.

VI.

This Agreement shall bind and inure to the benefit of the parties, and their respective estates, heirs, successors and assigns.

The parties subsequently filed a joint petition for court approval of the agreement. On May 6, 1991, the district court rendered judgment validating the agreement between the parties and toward third persons as of May 26, 1990. A Special Master, appointed pursuant to La. R.S. 13:4165, filed a proces verbal finding the agreement valid. The Special Master’s report shall be adopted by the court as submitted, unless clearly erroneous. La. R.S. 13:4165(C)(3). No objections were filed, and on March 10, 2005, the district court accordingly decreed that the agreement and judgment validating the agreement were enforceable and had not been renounced.

Yet, in awarding final support to Ms. Vincent, the district court considered the property as community. Since the agreement placed the parties under a separate property regime, the district court was precluded from considering the property as belonging to a community property regime. The agreement states that “the non-owner party shall have no claim to or interest in the other party’s separate assets or the fruits, revenues or products thereof.” Thus, the agreement prevents either party from claiming the other party’s separate property, including claims for final support.

In McAlpine v. McAlpine, the Louisiana Supreme Court held that prenuptial agreements waiving permanent alimony are enforceable and not against public policy. McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85, 86. Therefore, I would find that the district court erroneously awarded final support to Ms. Vincent, and the judgment awarding final support should be vacated. Moreover, because I would find the issue of fault to be irrelevant given the fact that the prenuptial agreement is enforceable and valid, I pretermit any discussion of Mr. Vincent’s claim that the district court erroneously found Ms. Vincent free from fault.

Furthermore, I cannot see how an award of permanent alimony in the amount of $7,275.20 is justified by this record. Again, the gross income of Mr. Vincent is $140,967.60. Thus, it is unconscionable to think that this award is “reasonable.”

Basis for Awarding Support

Mr. Vincent claims that the district court incorrectly assessed the- amount of interim and final support awarded to Ms. Vincent. During marriage, a spouse lacking sufficient income for maintenance is entitled to interim support regardless of whether the property regime is community or separate, and one cannot contract | fiout of owing interim support. Yorsch v. Yorsch, 503 So.2d 616, 617 (La.App. 4 Cir. 1987). Interim support is based on the needs of the requesting party, the ability of the other party to pay, and the parties’ standard of living during the marriage. La. C.C. art. 113.

Mr. Vincent argues that the district court’s assessment in the amount of interim and final support awarded to Ms. Vincent was incorrect and constitutes an abuse of discretion. I. agree. Since I would vacate the award of final support for the reasons discussed above, I would only consider the district court’s basis for awarding interim support in the amount of $10,044.29 per month. However, while I do not think Ms. Vincent is entitled to any permanent alimony and since there is division among those judges who would award permanent alimony, I would limit permanent alimony to a period of five (5) years.

With regard to the issue of interim support, Mr. Vincent has been paying $3,000 per month to Ms. Vincent in interim support, and $2,000 per month to Ms. Vincent’s health care provider for her physical therapy pursuant to an order issued in September of 2004. These amounts were agreed to by both parties. A few months later, however, the “Interim Order” was increased to $18,986.56 per month. This amount was based on a document provided by Ms. Vincent declaring Mr. Vincent’s monthly income to be $39,973.11.

After the new trial, the district court decreased the interim award to $10, 044.29. The district court relied upon Ms. Vincent’s income and expense list. Yet, the parties’ joint tax returns submitted at trial revealed Mr. Vincent’s approximate annual income of $140,967.60 from 1999 through 2003. Based upon that figure, Mr. Vincent’s monthly income is calculated at $11,747.30. Therefore, there was insufficient evidence of any change of circumstances warranting the initial increase in interim support to $18,986.56. Thus, the district court abused its discretion by not reinstating the original consent agreement. Since, I would reduce 17the interim support order to direct Mr. Vincent to pay $3,000 per month, I need not address his assertion that the district court erred by basing the award on Ms. Vincent’s claims of inability to work.

Attorney’s Fees and Costs

Mr. Vincent argues that the district court erroneously ordered that he pay all attorney’s fees and costs. An award of attorney’s fees is a penalty imposed to discourage a particular activity on the part of the opposing party. Langley v. Petro Star Corp. of La., 01-0198 (La.6/29/01), 792 So.2d 721, 728. The district court found Mr. Vincent in contempt for failing to pay support, to disclose his income, and to produce financial information. The district court, however, specifically chose not to impose penalties upon Mr. Vincent for his acts of contempt. Yet, the district court assessed all attorney’s fees and costs to Mr. Vincent.

Since the district court did not award attorney’s fees and costs for Mr. Vincent’s acts of contempt, there is no basis for the award. Thus, I would find that the district court incorrectly ordered all attorney’s fees and costs to be paid by Mr. Vincent, and would vacate the same.

For the foregoing reasons, I hereby concur in part and dissent in part with the per curiam opinion of this court.

TOBIAS, J.,

concurring in part, dissenting in part.

hi respectfully concur in part and dissent in part in the majority’s opinion for the following reasons.

An antenuptial agreement that precludes one spouse from obtaining from the other spouse interim spousal support is against public policy. McAlpine v. McAlpine, 94-1594, p. 9 (La.9/5/96), 679 So.2d 85, 90. However, an antenuptial agreement that precludes one spouse from obtaining from the other spouse permanent alimony is enforceable if the antenuptial agreement specifically states that a spouse shall have no right to alimony. Id., pp. 1 and 16, 679 So.2d 86 and 93.

In the case at bar, the antenuptial agreement is silent as to the right of one spouse to obtain from the other either interim spousal support or permanent alimony. The issue of interim spousal support is, pre-divorce, related to the standard of living of the parties while married and, post-divorce, need (i.e., an amount for maintenance [food, shelter, clothing, transportation, medical and drug expenses, utilities, household maintenance and income tax liability ^generated by alimony payments] as opposed to continuing an accustomed lifestyle, Bowes v. Bowes, 00-1062, p. 7 (La.App. 4 Cir. 8/15/01), 798 So.2d 996, 1001), provided the party seeking permanent alimony is free from fault in the break up of the marriage. La. C.C. art. 111. Additionally, permanent alimony, if warranted, may not exceed one-third of the obligor spouse’s net income. La. C.C. art. 112 B.

A trial court’s rulings on alimony issues are entitled to great weight. Williams v. Williams, 97-2245, p. 2 (La.App. 4 Cir. 4/11/01), 803 So.2d 50, 51. Accordingly, a trial court is vested with much discretion in making alimony determinations. Id., citing Hester v. Hester, 98-2220, p. 7 (La. App. 4 Cir. 1/19/00), 752 So.2d 269, 270. Further, a trial court’s determinations concerning the amount of alimony awarded should not be reversed or modified by an appellate court absent a clear abuse of discretion. Id.

In this case, based upon the evidence of record, I cannot say that the trial court was manifestly erroneous or clearly wrong in awarding interim spousal support of $10,044.29 per month. The interim spousal support of $5,000.00 per month ($3,000.00 interim spousal support plus $2,000.00 for physical therapy) agreed to by the parties’ consent was, by stipulation, set without prejudice to the rights of the parties. Therefore, the trial court did not err in setting interim spousal support at a different amount without giving or affording deference or weight to the parties’ temporary consent agreement. In setting interim spousal support, the trial court was not obligated to use any particular period of income as a basis. The test is need and the ability of the obligor spouse to pay.

To award permanent alimony to a spouse, as noted above, that spouse must be free from fault in the break up of the marriage. The 18 April 2005 judgment finds Ms. Vincent free from fault. The finding of fault is not manifestly erroneous |sor clearly wrong. Therefore, the trial court could consider whether permanent alimony was warranted.

For purposes of permanent alimony, the trial court was required to consider all relevant factors and at a minimum the following factors set forth in La. C.C. art. 112 A:

(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.

My review of the record satisfies me that the trial court’s determination fixing permanent alimony of $7,275.20 per month for five years is clearly wrong. In reducing an award made by a trial court, an appellate court must reduce the award to the highest amount that a reasonable trier of fact could award based upon the record on appeal. Considering article 112 A, the highest award that the trial court could have set for permanent alimony is $3,000.00 per month.

I would not have limited the permanent alimony award to five years, but rather have made the award for an indefinite period, because permanent alimony is based upon need and the ability of the obligor spouse to pay. Because the greater (an indefinite period) includes the lesser (five years), I understand the award of support for five years can be shortened or lengthened if circumstances so dictate [¿when a party makes a request for the adjustment showing a material change in circumstances. Ergo, I do not find that the five-year permanent alimony award is absolutely binding for all time, and would not disturb that part of the trial court’s judgment.

The community of acquets and gains ordinarily bears the costs and expenses of a divorce. La. C.C. art. 2362.1. Because the parties are separate in property, the trial court was free to tax costs, but not attorney’s fees to a party. La. C.C.P. art. 1920; Stoltz v. Stoltz, 162 So.2d 103 (La. App. 4th Cir.1964). I find no abuse in the discretion of the trial court in assessing the costs of the litigation to Mr. Vincent. Because no law authorizes the award of attorney’s fees when no community of ac-quets and gains exists, the trial court erred in taxing those fees to Mr. Vincent because no law authorizes the award of such fees in these circumstances. Campbell v. Melton, 01-2578, p. 15 (La.5/14/02), 817 So.2d 69, 80. In the absence of a finding of Mr. Vincent being in contempt of court, no attorney’s fees are due. La. R.S. 9:375 is inapplicable because the case before us does not presently involve a claim for arrearages. Each party must bear his or her own attorney’s fees.

Accordingly, I would amend the judgment by reducing the permanent alimony to $3,000.00 per month and delete from the judgment the award of attorney’s fees to Ms. Vincent. As amended I would affirm the judgment.

TOBIAS, J.,

concurring in part and dissenting in part from the Per Curiam and assigning reasons.

I respectfully and substantially agree with the Per Curiam issued in the captioned matter.

I agree that a majority of the panel agrees Ms. Vincent is entitled to interim spousal support; that a majority of the panel agrees the amount of interim support should be at least $3,000.00 per month; that a majority of the panel agrees the prenuptial agreement does not preclude the permanent alimony; that no majority of the panel agrees as to the amount that the permanent alimony should be; that a majority of the panel finds the district court erred in assessing all attorney’s fees in this matter to Mr. Vincent; and that a majority of the panel finds the district court erred in assessing all court costs to Mr. Vincent.

Finally, the per curiam states the relator’s writ application number 2006-C-1312 is rendered moot by the per curiam decree. If “moot” means that the issue in the writ must be reopened because we reduced the awards previously granted by the court, then I agree. In addition, I would further understand that the stay previously issued by this court is recalled and vacated.

My reasons for my opinion in this case remain unchanged from those expressed in my concurrence/dissent.

CANNIZZARO, J.,

concurring in part and dissenting in part.

hi respectfully concur in part and dissent in part with respect to the per cu-riam. My position on each of the issues addressed in the per curiam is set forth below.

Interim Spousal Support

I agree with the per curiam that Ms. Vincent is entitled to interim spousal support. I would affirm the trial court’s award of interim spousal support in the amount of $10,044.29 per month.

Final Spousal Support

I would award final spousal support in the amount of $3,000.00 per month for a five-year period. Therefore, I would find that the prenuptial agreement did not preclude the award of final spousal support.

I do not believe that the language in the prenuptial agreement between Mr. Vincent and Ms. Vincent was sufficient to waive Ms. Vincent’s right to final support. I think, however, that the trial court’s award of final support in the amount of $7,275.20 a month for five years was excessive based on the evidence of Mr. Vincent’s income that was contained in the record. I would instead award final support in the amount of $3,000.00 per month for five years.

|gIn deMontluzin v. deMontluzin, 464 So.2d 948 (La.App. 4th Cir.1985), this Court held that a waiver of permanent alimony must be clear and unequivocal. 464 So.2d at 949. In Sharpe v. Sharpe, 536 So.2d 434 (La.App. 4th Cir.1989), this Court determined that the language in a separate property agreement stating that neither of the parties would have “any economic claim upon the other” was an attempt to “prohibit either party from claiming (in the event of separation or divorce) alimony.... ” 536 So.2d at 437.

In the instant case, there is no express waiver of the right to final alimony in the prenuptial agreement. Although the prenuptial agreement does state that the parties will be separate in property, the language upon which Mr. Vincent relies in asserting that he has no obligation to provide final support is insufficient, in my opinion, to be a valid waiver of his final support obligation. The prenuptial agreement states that each party owns substantial paraphernal property and that any civil fruits, revenues, or products of that property shall be assets of the owner’s separate estate. Then the agreement states that “[t]he non-owner party shall have no claim to or interest in the other party’s separate assets or the fruits, revenues or products thereof.” This language relates solely to the characterization of the fruits, revenues, and products of the parties’ separate property as also being separate property. It does not expressly or impliedly create a waiver of the final support obligation.

I find that the language in the prenuptial agreement in the instant case is clearly distinguishable from the language in the Sharpe case. In Sharpe the parties expressly stated that they would have “no economic claim” against each other. The Sharpe case directly addressed the claims that the parties would have against each other, but that was not done by the parties in the instant case.

Because I believe that the parties in the instant case did not validly waive the final support obligation, I have examined the record to determine whether the trial | scourt considered the relevant factors set forth in La. Civil Code article 112(A) relating to the award of final support. It appears to me from the trial court judge’s reasons for judgment that she did consider the relevant factors, but I find that the amount of the award of final spousal support was excessive.

Based on the facts in the record relating to Mr. Vincent’s net income, I believe that the amount of final spousal support awarded by the trial court judge exceeds the limit set forth in La. C.C. art. 112(B), which limits the amount of final spousal support to no more than one-third of the obligor’s net income. Finally, I believe that the trial court correctly determined that the wife in this case was free from the type of fault that, under the provisions of La. C.C. art. Ill, would preclude an award of final support. Thus, I would affirm the trial court’s determination that final support should be awarded, but I would reduce the amount of the award to $3,000.00 per month for five years.

I do not, however, agree with the award of final spousal support set forth in the per curiam. Although a majority of judges agrees that final spousal support should be awarded, a majority does not agree upon the amount to be awarded. The per cu-riam relies upon Butler v. Zapata Haynie Corp., 94-1171 (La.7/5/94), 639 So.2d 1186, to determine that because two judges agree that the amount of final spousal support should be $3,000.00 and one judge thinks that the amount should be a greater amount, then there is a majority determination that the amount of final spousal support should be $3,000.00. The reasoning is that the amount the third judge would award includes the lesser amount of $3,000.00. Therefore, that judge would award at least $3,000.00 in spousal support.

I do not read the Butler case to mean that whenever a majority of judges on a panel cannot not agree upon the amount of an award, then the award shall be the lowest amount that a judge agrees to award, because that amount is a lesser, included amount in the higher amounts that other judges would award. I do not |4think that the Butler case establishes a general rule or formula for awarding damages when a majority of the judges on a panel agree that damages should be awarded but do not agree upon the amount of the award. There is nothing in the Butler case to indicate that the Supreme Court did not consider de novo the amount of damages to award in that case, but it is clear that a majority of the judges on the Supreme Court did agree regarding the amount of the award. In the instant case, however, a majority of the judges do not agree on the amount to be awarded. Until the Supreme Court establishes a rule or formula for the circuit courts of appeal to use in breaking a deadlock when a majority of judges on a panel cannot agree on the amount of a damage award, I think that the Butler case should be limited to its facts.

Attorney’s Fees

I agree with the per curiam that the trial court erred in assessing to Mr. Vincent all attorney’s fees in this matter. There was no contractual obligation or statutory mandate upon which the assessment of attorney’s fees to one party could be made.

Court Costs

I disagree with the per curiam in vacating the assessment of all court costs to Mr. Vincent. I believe that it was in the trial court’s discretion to assess all court costs against him.

Other Aspects of the Trial Court Judgment

I agree with the per curiam in affirming all aspects of the trial court judgment not specifically addressed in the per curiam.

Writ Application

I agree with the disposition of the writ application in the per curiam.

ORDER

_[jIT IS ORDERED that the appellant’s, Scott G. Vincent, application for rehearing is denied.

CANNIZZARO, J., concurring in the denial of rehearing with reasons.

hi concur in the denial of Mr. Vincent’s application for rehearing. I write separately to clarify some confusion that appears to have arisen between the parties regarding the need for a five-judge panel.

On June 21, 2006, what purported to be a judgment in this case was handed down by this Court. The judgment, however, was not a valid judgment. It was inadvertently initialed by a judge who was not a member of the three-judge panel to which the case had been randomly allotted, and I, the third member of the panel, neither initialed or approved the judgment before it was inadvertently handed down. Therefore, the judgment was handed down in error, was not initialed by me, and was a nullity. The judgment was properly withdrawn by an order of this Court.

The original three-judge panel, which was comprised of Judge Jones, Judge Lombard, and me, considered the appeal. When it became clear that the three judges on the original panel did not agree upon the disposition of the appeal, it became necessary to appoint a five-judge panel to consider the case pursuant to La. Const, art. 5, § 8(B). Section 8(B) provides that “in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of | ¿judgment....” When a majority of the original three-judge panel did not reach a majority decision, then the five-judge panel was convened, the case was reargued, and the only valid judgment in this case was issued in a per curiam decision on January 10, 2007. Because the judgment handed down on June 21, 2006, was a complete nullity, the five-judge panel was convened “prior to the rendition of judgment” as is required by La. Const, art 5, § 8(B). Thus, the argument that the five-judge panel was convened after judgment had been rendered is without merit.

      . We note that the Appellant filed a "Suggestion of Absence of Jurisdiction of Seven-Judge Panel” with a prayer for relief. The order of this court rescinding the appointment of the seven-judge panel dated January 5, 2007 renders this suggestion moot.

      . The Social Security Administration declared Ms. Vincent fully disabled in 1996. She has been receiving benefits ever since.

      . This case was on Judge Landrieu's docket until November 8, 2004, at which time Judge Irons took over.

      .The parties’ joint tax returns were not yet in evidence when the interim order was issued, but were submitted at trial and revealed Mr. Vincent’s approximate annual income of $140,967.60 from 1999 through 2003.

      . See La. C.C. art. 113. Interim spousal support was formerly known as alimony pendente lite.

      . Mizell v. Mizell, 37,004, p. 12 (La.App. 2 Cir. 3/7/03), 839 So.2d 1222, 1229.

      . See Butler v. Zapata Haynie Corp., 94-1171 (La.7/5/94), 639 So.2d 1186, to determine the decree of this court as to each issue on appeal.


author: EDWIN A. LOMBARD, Judge. JONES, J.,

text:
    STATE of Louisiana v. Sidney ANDERSON.
    No. 2006-KA-1031.

      Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 2007.
    Rehearing Denied Feb. 15, 2007.

      Eddie J. Jordan, Jr., District Attorney, Anthony J. Ibert, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Frank G. DeSalvo, Robert P. Blackburn, Desalvo Desalvo & Blackburn, APLC. New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   EDWIN A. LOMBARD, Judge.

hThe State charged Sidney Anderson with one count of possession of cocaine with intent to distribute, a violation of La.Rev.Stat. 40:967(A), and one count of possession of marijuana with the intent to distribute, a violation of La.Rev.Stat. 40:966(A). After the trial court heard and denied the defendant’s motion to suppress the evidence, the defendant pleaded guilty as charged, reserving his right to appeal the court’s adverse ruling on the suppression issue in accordance with State v. Crosby, 338 So.2d 584 (La.1976). The court sentenced the defendant to five years of imprisonment on each count, to be served concurrently, with the added provision that, as to count one, the first two years must be served without the benefit of probation, parole, or suspension of sentence. After reviewing the record in light of the applicable law and arguments of the parties, we find no error in the trial court judgment denying the defendant’s motion to suppress.

Burden of Proof and Standard of Review

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S Const. Amend. IV. Similarly, the ^Louisiana Constitution provides that “[ejvery person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Constart. I § 5. Accordingly, where, as in this case, evidence is seized without a warrant as required by the federal and state constitutions, the burden is on the State to show that a search is justified by some exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29 (La.1985); State v. Pomes, 376 So.2d 133 (1979). Trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179 (citations omitted); State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914 (trial court vested with great discretion when ruling on a motion to suppress). The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the district court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199 (La.App.1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. (citation omitted). “Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts.” Id. (citation omitted).

| ^Relevant Facts

Detective Harry Stovall of the New Orleans Police Department (“NOPD”) narcotics division testified at the motion hearing that, on February 10, 2005, he set up surveillance in the 700 block of St. James based upon an anonymous tip to the narcotics hotline that a person was selling crack cocaine from a truck on a vacant lot. The tipster described the person who was selling cocaine and gave an exact location of the truck where the narcotics were stored.

Detective Stovall testified that, as soon as he set up the surveillance, he saw the defendant, who met the description provided by the tipster. He also saw a truck parked on a lot at 731 St. James Street and saw the defendant entering and exiting the truck. The detective advised other officers of his observations and waited for them to come into the area to assist with further investigation. Before the other officers arrived, however, Detective Stovall saw the defendant engaging in what appeared to be several narcotics transactions. In each one, the defendant met an individual, received currency, walked onto the lot, entered the truck, returned to the individual, and handed him or her an object. Because no back-up officers were available, the suspected buyers were not stopped. After the assisting units took up positions, Detective Stovall waited a few minutes but saw no more transactions. Rather than wait any longer, the detective directed the back-up officers to stop the defendant and search the truck. They did as requested, and in a search of the truck, crack cocaine and marijuana were found under a floor mat. Detective Stovall abandoned his surveillance position and formally arrested the defendant.

On cross-examination, Detective Stovall stated that he made no investigation into the ownership of the property prior to setting up the surveillance. As to the description of the lot, Detective Stovall testified that it was a vacant lot with a 14fence in front but that the fence was not high enough to totally obscure the tractor-trailer, and therefore he was able to see when the defendant opened and closed the door. He further testified that he could see the defendant enter the truck from the passenger door after accepting currency from individuals. Detective Stovall admitted that he made no record of how many apparent hand-to-hand transactions he observed, nor did he record any descriptions of the buyers in his police report. Detective Stovall could not recall whether the fence was made of wood or metal, but he did recall that the fence was unlocked.

Detective Regina Barr also testified at the hearing, stating that she participated in the defendant’s arrest as part of the back-up unit. Based on the directions of Detective Stovall, she and her partner together with other officers detained the defendant. She then entered the truck, searched it, and found cocaine and marijuana under the floor mat.

The defendant presented no witnesses or evidence in support of his motion to suppress the evidence. The motion hearing transcript indicates that the trial court denied the motion to suppress, stating that it found probable cause for a search and exigent circumstances under the automobile exception to the warrant requirement.

Discussion

In his sole assignment of error, the de-fendanVappellant argues that the trial court erred when it denied his motion to suppress the evidence. The appellant argues that the automobile exception should not apply to a tractor-trailer sitting behind a fence on a vacant lot, which was owned by the defendant and his family, under circumstances where there was no danger of the evidence being destroyed if the police first obtained a warrant.

| ¡Although a warrant is generally required prior to conducting a search, Cali fornia v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the “automobile exception” to this requirement is well-established. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Pursuant to the “automobile exception”, there is no separate exigency requirement if there is probable cause to search a vehicle. U.S. v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”); see also State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330 (if a vehicle is readily mobile, there is no difference between seizing the car while obtaining a search warrant and immediately searching the vehicle without a warrant). Thus, if there is probable cause to search and the vehicle is readily mobile, even if stationary at the time the search proceeded, any evidence will be considered constitutionally seized.

The defendani/appellant does not contest that the officers had probable cause to believe that there was contraband in the tractor-trailer, but argues that there was no chance that anything could happen to the evidence in the truck given that there were many officers available to secure it and the defendant was already detained. He further suggests that the tractor-trailer was not “readily mobile” because it was not located on a city street, but rather was “stored” on a lot surrounded by a fence which was equipped with a “locking mechanism”. The appellant cites State v. Corzo, 2002-0766 (La.11/8/02), 831 So.2d 904, in which the court in a per curiam opinion found that a warrantless search of a vehicle was proper because there was probable cause and, additionally, “exigent circumstances arising from the detention of the vehicle on the open road excused the lack of a warrant.” Id., p. 1, 831 So.2d at 905. The appellant argues that the reference in Corzo to the | ^vehicle being on an open road means that there were no exigent circumstances in this case where the vehicle was not on an open road.

The defendant/appellant misapprehends the Corzo dicta. In Pennsylvania v. Labron, 518 U.S. at 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), cited in Corzo, the court upheld the warrantless search of a vehicle parked in the driveway of a farmhouse and reversed the ruling of the Supreme Court of Pennsylvania, which had found the automobile exception did not apply because the officers had time to obtain warrants, stating:

The Supreme Court of Pennsylvania held the rule permitting warrantless searches of automobiles is limited to cases where unforeseen circumstances involving the search of an automobile are coupled with the presence of probable cause. This was incorrect. Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. If a car. is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.

Pennsylvania v. Labron, 518 U.S. at 940, 116 S.Ct. 2485 (internal citations and quotation marks deleted). Accordingly, it does not appear that the mere reference to an open road in Corzo was meant as a limitation on the automobile exception to the warrant requirement.

Moreover, although the appellant refers to an immobilized tractor-trailer in this case, there is nothing in the record to indicate that the vehicle was not readily mobile. Detective Stovall repeatedly referred to a truck, not a trailer. At one point he did refer to the vehicle as a “tractor-trailer” noting that it had been “backed into this lot.” The fence in front of the lot was not locked and apparently was easily opened in light of the detective’s testimony that the defendant repeatedly entered the lot. Because the vehicle was backed in, it presumably could be pulled out of 17the lot and driven away. Overall, it appears that, like the truck parked in a driveway in the Labron case, the vehicle was still “readily mobile” even if not parked on a public thoroughfare at the time of the search.

Conclusion

We find no error in the trial court’s factual findings and legal conclusions and, accordingly, do not find that the trial court abused its discretion in the denying the defendant’s motion to suppress the evidence. The defendant/appellant’s conviction and sentence are affirmed.

AFFIRMED.

JONES, J., concurs with reasons.

JONES, J.,

Concurring.

11While I concur in the result, I write separately solely to emphasize the critical role and credibility our system places in the importance of testimony of law enforcement officers.

The only evidence justifying the violation of Anderson’s Fourth Amendment rights comes from the testimony of Detective Stovall. There is no other testimony which corroborates the basis of the war-rantless search. No other officer testifies that he nor she either witnessed purported drug transactions, or stopped and searched an individual after an alleged drug transaction in this case, nor did the confidential informant corroborate the testimony of Detective Stovall.

Yet, I agree with the majority herein that the district court did not error in finding that the warrantless search met Constitutional muster. However, I caution, that this case clearly and unequivocally exemplifies why the testimony of peace officers at all times must be above reproach. There can never be a loss of confidence by the criminal justice system in the sworn testimony of law enforcement officers. The damage to the system when that credibility is called into question is far too detrimental to the legal system to contemplate.