author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Russel COX.
    No. 11-KA-892.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

|20n January 6, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Russel Cox, with second degree battery in violation of LSA-R.S. 14:34.1. Defendant pled not guilty to this charge at his arraignment on February 3, 2011. On April 25, 2011, defendant withdrew his not guilty plea and pled guilty to second degree battery. Defendant was sentenced on this same date to five years imprisonment with the Department of Corrections. This sentence was suspended, and defendant was placed on active probation for five years. On May 17, 2011, defendant filed a pro se motion for appeal, which was granted by the trial court on May 19, 2011. Defendant’s appeal follows.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for ^determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In this case, defendant’s appellate counsel asserts that after a conscientious and thorough review of the trial court record, she could find no non-frivolous tissues to raise on appeal and could find no ruling of the trial court that arguably supports the appeal. She sets forth the procedural history of the case and a brief statement of the facts. She then contends that defendant was fully informed of the legal consequences of changing his plea by both his trial counsel as well as the trial court. She asserts that the plea colloquy reveals that the trial court explained each of the rights necessary to ensure a knowing and intelligent waiver of rights, including his right to a trial by jury, to remain silent, and to confront witnesses. She contends that defendant was advised as to the sentence that would be imposed if his plea was accepted and that defendant was sentenced in accordance with the plea agreement, noting that defendant did not object or move for reconsideration. Counsel asserts that defendant is restricted by law from appealing his sentence, citing LSA-C.Cr.P. art. 881.2. Nevertheless, counsel requests that any errors patent be listed as assignments of error for purposes of this appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, which states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which arguably would support the appeal. She contends she has prepared an appellate brief in compliance with Anders and Jyles. She further asserts that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 4, 2011, to file a pro se supplemental brief. Defendant has not filed a brief as of the date of this opinion.

The State responds that appellate counsel shows a conscientious and thorough review and recitation of the procedural history of the case and that counsel has cast an advocate’s eye over the record, determining there were no 1 .^significant non-frivolous issues upon which to base an appeal. The State agreed that the Boykin examination by the court was proper and that defendant was made aware of his rights he would be waiving. The State further contends that defendant was made aware of the potential for use of the felony conviction for purposes of enhancement in the future. The State concludes that the court conducted a thorough examination ensuring defendant’s understanding and voluntariness. Further, the State contends that the sentencing was proper and notes that no motion to reconsider was filed. The State also asserts that defendant is procedurally barred from seeking review of his sentence, which was imposed in accordance with a plea agreement. The State further recognizes that defendant was made aware of the sentencing range for the offense and the sentence that would be imposed. The State concludes that appellate counsel has conformed with and followed the procedures in Anders and Jyles and her request to withdraw should be granted.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. As such, defendant’s presence does not present any issue that would support an appeal.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the | sguilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Defendant filed several pre-trial motions, including motions to suppress, which do not appear to have been ruled upon prior to when defendant pled guilty. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101,1102. There were no rulings to preserve for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, OS-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record shows that defendant was aware he was pleading guilty to second degree battery. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama. Defendant was advised of these rights during the colloquy with the trial judge and by means of the waiver of rights form. Defendant indicated that he understood that he was waiving these rights. The trial judge indicated that he was 17accepting defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

Defendant further indicated that he was satisfied with the way his counsel and the court handled the matter. He stated that he had not been forced, coerced, or threatened to enter his guilty plea. He was also informed that by pleading guilty to this felony that his guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future.

Defendant was also advised during the colloquy and by means of the waiver of rights form that he faced a possible sentencing range of zero to five years at hard labor/with the Department of Corrections. Also by means of the form and during the colloquy, defendant was informed of what his sentence would be if his guilty plea was accepted by the court. The waiver of rights form also suggests that defendant understood the possible consequences of pleading guilty and wished to plead guilty. The waiver of rights form was signed and initialed by defendant, and was also signed by his counsel and the judge.

Defendant’s sentence does not appear to present issues for appeal. Defendant’s sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 14:34.1. Further, defendant’s sentence was imposed pursuant to a plea agreement. Defendant knew what his sentence would be if he chose to plead guilty. It appears defendant received a sentence in conformity with the agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171,1173.

Based on the foregoing, the proceedings surrounding defendant’s plea of guilty and his sentence do not present any non-frivolous issues to be raised on |sappeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

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.

First, although the commitment reflects that defendant was properly advised of the prescriptive period for filing an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8, the transcript reflects an incomplete advisal. The transcript reflects that defendant was advised that he had “two years after the judgment of conviction become [sic] final within which to file for 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, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis as found in original). The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Further, the waiver of rights form reflects an incomplete advisal, providing that defendant had “two (2) years to file post-conviction relief.”

This Court has recently corrected this error patent by way of its opinion. See State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463, pp. lO-fil;, (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473. As such, this Court advises defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

Second, we note that the transcript reflects that the trial judge addressed some conditions of defendant’s probation, noting that defendant was not limited to these conditions but instead was subject to the conditions of probation as outlined in the form defendant had signed. The commitment includes some of the conditions as stated in the transcript, and adds a few from the conditions of probation form. We find that this is adequate because the transcript shows that the judge arguably incorporates the form into his sentencing by making reference to the form.

Further, the conditions of probation form reflects defendant’s initials next to each item, even items not mentioned in the transcript such as restitution and community service. We find that, because the listed amounts for such items are blank, that these items were available, but were not ordered in the instant matter.

Accordingly, we affirm defendant’s conviction and sentence and grant defense counsel’s motion to withdraw as counsel of record.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW AS COUNSEL OF RECORD GRANTED


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Judy Thompson ROBERT, Plaintiff-Appellant v. Roger David ROBERT, Defendant-Appellee.
    No. 47,027-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Judy Thompson Robert, In Proper Person.
    Laurie Jo Burkett, for Appellee.
    Before GASKINS, DREW & SEXTON (Pro Tempore), JJ.
   DREW, J.

_jjWe are asked to decide whether the trial court abused its discretion in partitioning the former community between these litigants. The judgment rendered below only slightly amended the detailed and comprehensive recommendations of the hearing officer. Finding no fault in the trial court’s ruling, we affirm in all respects.

CHRONOLOGY

These dates may help put this dispute in perspective for the reader:

• August 18, 2000 — date of marriage;
• January 31, 2008 — effective date of termination of the community;
• March 25, 2008 — date of divorce;
• June 9, 2008 — petition by Judy Robert for community partition;
• August 19, 2009 — date of our previous opinion that rejected Mrs. Robert’s appeal of a custody issue;
• October 26, 2010 — conference with hearing officer;
• October 29, 2010 — hearing officer’s conference report is filed;
• November 5, 2010 — objection filed by Mrs. Robert;
• January 31, 2011 — Mrs. Robert’s attorney withdraws;
• June 16, 2011 — date of district court trial de novo;
• June 29, 2011 — date of filing of district court judgment; and
12* July 11, 2011 — Mrs. Robert’s motion for new trial is denied.

The trial court’s written judgment essentially adopted the hearing officer’s thorough and detailed Findings of Disputed and Undisputed Facts as the judgment of the court, subject to these few modifications:

• Bush hog Value reduced from $300 to $30;
♦ Refrigerator Value reduced from $325 to $100;
♦ 27" television Value reduced from $88 to $10;
♦ Lawnmower Value reduced from $75 to $5; and ♦ Deep freeze Value reduced from $150 to $5.

ISSUES IN DISPUTE

Mrs. Robert, the only witness in district court, complains that she was not placed under oath, a fact disputed by Mr. Robert. We are puzzled as to what harm she may have suffered by her testimony being un-sworn. This is frivolous and totally without merit.

Mrs. Robert complains that the trial court abused its discretion by failing to grant a mistrial and by failing to take appropriate responsibility for enforcement of its orders. The record does not bear this out.

|sMrs. Robert complains that she was not allowed to speak directly to the hearing officer at the hearing officer’s conference. Her trial de novo in the district court cures this unsubstantiated and contested claim, as she testified at length in the trial de novo, without limitation, and had every opportunity to call witnesses and offer evidence.

Mrs. Robert takes issue in brief with previous custodial litigation and her representation in those proceedings. These matters have been previously dealt with by this court, and we decline to revisit those issues.

Mrs. Robert also complains that the trial court wasted valuable time on the valuation of “foolish items,” including a used washer and dryer, as well as a discarded bush hog. On the contrary, we appreciate the trial court’s careful attention to detail in these proceedings. It is curious that appellant would make this complaint, as the net adjustments inured substantially to her benefit in the apportionment and evaluation of this modest community.

Mrs. Robert attacks the hearing officer’s apportionment of the reimbursement due her on payments made on a separate, pre-marriage loan obligation of Mr. Robert. The total payments made were $8,267.70, and the hearing officer set the reimbursement owed to Mrs. Robert at $4,138.88. 14She contends that the full amount of $8,267.70 is due to her, not just the one-half assigned by the hearing officer and confirmed by the district court.

La. C.C. art. 2364 entitles a spouse to one-half of the value of any community property used to satisfy a separate obligation of the other spouse. Mr. Robert made a $25,000 loan prior to the marriage, and during the marriage the couple borrowed $23,035 from Iberia Bank, some of which proceeds were paid on the earlier loan. Neither litigant introduced documentation clearly reflecting the amount of the Iberia loan that was paid on the older loan. Although appellant did not meet her burden of proof of establishing the exact amount of community funds used to defray Mr. Robert’s preexisting separate debt, the district court nonetheless generously awarded her half the amount. Mr. Robert did not appeal. From the record before us, we cannot find fault with this award, which is not clearly wrong.

Mrs. Robert objects to the Iberia Bank loan of $23,035 being categorized as a community debt. However, she did not dispute this finding while at the conference before the hearing officer. This complaint was not listed in her Objection to the Hearing Officer’s report. She also challenges the valuation assigned to the Mitsubishi Mirage, which was based upon Kelley Blue Book valuations. We cannot discern from this record that either finding is manifestly erroneous.

According to appellant, Mr. Robert was improperly granted reimbursement for interest on loans against a New York Life Insurance ^Policy on his life. While admitting that the policy was in existence prior to the marriage, Mr. Robert points out that the undisputed evidence shows that the loans taken against the policy were incurred during the parties’ marriage. The first loan was made April 26, 2002, during the marriage. No payments have been made and the accrued interest is $8,498.28, which is an appropriate community debt, properly assigned to Mr. Robert.

Mrs. Robert assigns as error the trial court’s allowing into evidence certain documentary support relative to Mr. Robert’s $3,500 loan from his brother Eldred. No objection was made to these offerings at trial, and allowing the documentary evidence was within the trial court’s discretion.

Mrs. Robert contests the allocation of a 2002 Ford F-150 Supercab truck as community property. During the marriage, she won a smaller truck at a casino drawing, and the married couple took an equivalent amount of proceeds and applied it on this better, more expensive, truck. We find no rational basis by which to challenge either the categorization or the valuation of the truck, which was taken from the Kelley Blue Book.

Mrs. Robert accuses the trial court of being unprofessional and demeaning to her, because she had no lawyer. The record reflects just the opposite—it reveals a trial judge with unlimited patience and kindness toward Mrs. Robert. The court carefully explained to her that he would hear all she had to say but would not consider assertions that had no legal basis. The court took great pains to explain what was transpiring in the always difficult situation when only one party has counsel. The record supports that the trial court did all within its power to reach a just decision, utilizing |6tact and compassion, while applying the law to these convoluted facts. The court avoided “legalese” and ensured that Mrs. Robert not be at a disadvantage because of appearing pro se. She was allowed to testify at great length. Mrs. Robert called no witnesses and offered no exhibits.

Mrs. Robert wanted a value of $2,400 placed on a 10-year-old 18-foot trailer built by Mr. Robert. The original materials cost $1,500 and that was the value used by the trial court. We do not find this an abuse of discretion.

After the community property regime ended, Mr. Robert received a cash settlement from the VA for injuries suffered during his service in Vietnam. Mrs. Robert alleges that she worked hard to help Mr. Robert finally receive this benefit and was promised some of it by Mr. Robert.

Mr. Robert denies making this promise, and he is entirely correct in citing state and federal law in support of his contention that she is not entitled to any portion of this benefit. See 10 U.S.C. § 1408(d)(2). In some circumstances, federal law permits direct payments to a former spouse who presents a state-court order granting the former spouse a portion of the military retiree’s disposable retirement or retainer pay. To qualify an ex-spouse must have been married to the retired military member for a period of 10 years or more during which the member performed at least 10 years of creditable service. As to Mr. Robert’s disability payments, none of his military service occurred during this marriage. See Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

SUMMARY

A careful assessment of this record reveals:

17* a scholarly and detailed seven-page recommendation of a highly professional hearing officer;

• a transcript allowing unlimited testimony by Mrs. Robert, with avuncular assistance from a kind and able district court judge;

• a brief oral ruling of the trial court reflecting very few changes in valuations, as revealed by the testimony and other offerings;

• absolutely nothing to indicate that this judgment should be changed in any manner; and

• proof positive that Mrs. Robert has had her day(s) in court, having been treated fairly and with respect.

DECREE

With all costs of this appeal being taxed against appellant, Judy Thompson Robert, the ruling of the trial court is AFFIRMED.

      . The trial court made de minimis value adjustments in five items of personal property in dispute. Cumulatively, the changes benefited appellant, as her ex-husband’s equalizing payment to her was increased from $8,534 to $9,447.

      . Robert v. Robert, 44,528 (La.App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La. 10/7/09), 19 So.3d 1.

      . At all pertinent times before January 31, 2011, appellant was represented by counsel.

      . Mrs. Robert suggested at the trial de novo that the amount of $30 would be reasonable for the value of the bush hog.

      . An old tube television.

      . Mrs. Robert initially suggested $10 for the lawnmower at trial, but then both sides later agreed that a five dollar value was acceptable.

      . The deep freeze was inoperable and Mrs. Robert expressed her intention to utilize it as a worm bed. In addition, the hearing officer had categorized a washer and dryer as community property. Upon Mrs. Robert’s concession that the two machines had been purchased by Mr. Robert before the marriage, the trial court declared the two items to be the separate property of Mr. Robert.

      . Our close review of appellant's brief leads us to infer that these complaints relate to her problems with the conduct of the hearing officer's conference, as we find no formal motion for mistrial in the district court proceeding.

      . For years before the hearing officer's conference, and for months afterwards, appellant was represented by able counsel. Much of Mrs. Robert’s brief is spent criticizing her former lawyer’s conduct at the conference, particular as regards her not being able to speak directly with the hearing officer.

      . See Robert v. Robert, supra, in fn. 2.

      . The parties married relatively late in life, and had little opportunity to accumulate property in the slightly over seven years of their unhappy marriage.

      .“An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.” La. C.C. art. 2361.


text:
    Kenneth PORTER & Pamela Porter v. Phillip FULKERSON & John J. McMullen Associates, Inc.
    No. 11-CA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Gennusa, Piacun & Ruli, Attorneys at Law, Metairie, LA, for Plaintiffs/Appel-lees.
    Paul A. Eckert, Bastían & Associates, Attorney at Law, Joseph L. McReynolds Deutsch, Kerrigan & Stiles, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, John J. McMullen Associates, Inc., (hereinafter “JJM”), appeals from a judgment rendered against it and in favor of plaintiffs, Kenneth Porter and Pamela Porter. For the reasons that follow, we affirm the judgment of the trial court.

Kenneth Porter and his wife Pamela filed this suit for injuries sustained when Mr. Porter was struck in the face by Philip Fulkerson, an employee of JJM. Fulker-son, along with his homeowner’s insurer, settled with Porter prior to trial, leaving JJM as the only defendant.

This matter went to a jury trial. At its conclusion, the jury found that Fulkerson caused Porter’s damages and that he was in the course and scope of his employment at the time of the incident, and they awarded general and specific damages of $1,845,442.00. The jury also found that Pamela suffered loss of ^consortium and they awarded damages of $50,000. Finally, the judgment ordered Porter to satisfy the U.S. Department of Labor from the proceeds of the judgment.

JJM appeals the jury’s finding that it was liable for the actions of Mr. Fulkerson.

The incident at issue occurred in March of 2005. At that time, Mr. Porter was a civilian employed by the Navy, involved in what was called an LPD contract for the designing of a ship. The location of the project was on the second floor of the UNO building adjacent to Avondale shipyard. On the second floor were the various entities that were involved in the project; Navy personnel, the contractors, subcontractors and designers, their employees and other entities. As Mr. Porter described it at trial, “It consisted of a multitude of people of trades, and capabilities, and contractors. That is, all of the support services that the [N]avy had, support contractors, the contractor Northrop Grumman Avondale personnel, as well as Navy personnel, of ourself [sic], locally, and Navy personnel from Washington D.C., and various other locations.”

The physical design of the working area was cubicles, low enough for the individuals to communicate with each other if necessary. Mr. Porter stated that the purpose of creating the work environment in such a manner was so that it could speed up the work process since all the personnel needed would be immediately accessible. He further stated that another purpose was to create camaraderie between the various entities involved so that the persons would feel more comfortable with sharing. Mr. Porter stated that “it was a very functional environment, a lot of socializing, a lot of talking.”

Phillip Fulkerson was an employee of JJM, one of the subcontractors involved in the project. On the date of the incident at issue, he arrived at work and was proceeding to his desk when he saw Gary Lejeune, an employee of another ^subcontractor, with whom he was acquainted, in Mr. Porter’s cubicle. Mr. Porter was seated at his desk and Mr. Lejeune was sitting in a chair across from him. Fulkerson entered the cubicle to talk to Mr. Lejeune and he perched on the edge of Porter’s desk. As some point in the conversation, he went to pat Porter in a style similar to the lead character on the television show, “The Sopranos.” However, in moving Fulkerson accidentally slipped off the desk and ended up slapping Mr. Porter much harder than he intended.

Mr. Porter was talking when the accident occurred and the slap caused injury to his jaw, resulting in TMJ issues. It also aggravated a non-symptomatic degenerative cervical disc disease, so that Mr. Porter now suffers from debilitating headaches. In addition, it caused an inner ear “concussion” which causes him to suffer vertigo. Finally there is a psychogenic component to his injury. One doctor explained it as a heightened response to injury. However, all the doctors who examined him found no evidence of malingering. Mr. Porter was found to be permanently disabled as a result of the injuries suffered.

The sole issue in this appeal is whether the jury erred in finding that Fulkerson was within the course and scope of his employment when the accident occurred.

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” LSA-C.C. art. 2820. The law in this area is clear that an employer is liable for a tort committed by his employee if, at the time, the employee was acting within the course and scope of his employment., Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996. The course of employment refers to time and place. The scope of employment test examines the employment-related risk of injury. Cote v. City of Shreveport, 46,571 (La.App. 2 Cir. 9/21/11), 73 So.3d 435, 439. |sFor the employer to be vicariously liable, the tortious conduct of the employee must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Id. at 439. However, the employee’s conduct need only be reasonably incidental to the performance of the employee’s official duties, and need not be exclusively employment rooted. Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874, 879, unit denied, 99-2272 (La.11/5/99), 750 So.2d 194.

In Russell v. Noullet, 98-0816 (La.12/1/98), 721 So.2d 868, 871-2, our Supreme Court set forth our standard of review:

The question of whether an employee’s tortious conduct was sufficiently employment-related that the court should impose vicarious liability upon the employer is a mixed question of fact and law, and the trial court’s resolution of that question is entitled to great deference on review by the court of appeal under the manifest error standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98); 708 So.2d 362. Nevertheless, the reviewing court must determine that the record contains sufficient support in the evidence, viewed in the light most favorable to the party that prevailed in the trial court, for a rational trier of fact to have found that the tor-tious conduct was or was not employment-related. The reviewing court can only reverse a lower court’s factual findings when (1) the record reflects that a reasonable factual basis does not exist for the finding of the trial court and (2) the record establishes that the finding is clearly ■wrong. Baumeister [v. Plunkett, 95-2270 (La.5/21/96); 673 So.2d 994], 998.

In this case, both Mr. Porter and Mr. Fulkerson testified that their employment location was set up in a way to facilitate camaraderie between all the different parties that were collaborating on the ship design process. He stated that the second floor was set up open air, with cubicles, to allow exchange among the different individuals. Mr. Fulkerson further stated that physical contact was not discouraged, and there was a lot of hand shaking and back patting. While Mr. Fulkerson did state that he entered Mr. Porter’s cubicle for the purpose of | fiSocializing with the individuals located therein, the jury could have reasonably concluded that his actions served the purpose, at least in part, of creating this camaraderie, which was the aim of the employers designing the work space, or that his actions furthered the aim of his employer in satisfying the goals of the entity that his employer contracted with.

Considering that evidence presented, we cannot say that the jury was manifestly erroneous in finding that Mr. Fulkerson was within the course and scope of his employment when he injured Mr. Porter and that John J. McMullen Associates, Inc. was responsible for the damage caused by Fulkerson. Accordingly we affirm the decision of the trial court. All costs are assessed against appellant.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    Deborah Zar PELLEGRIN, Wife of/and Lynn John Pellegrin v. LOUISIANA GAMING-1, a Louisiana Partnership in Commendam and/or Pinnacle Entertainment, Publishing and Management, Inc. d/b/a Boomtown Casino Westbank and “ABC” Insurance Company.
    No. 11-CA-1021.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.
    Robert M. Hearin, Jr., J. Van Robi-ehaux, Jr., Brian D. Page, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

pin this trip and fall case, plaintiffs appeal from a ruling of the trial court granting summary judgment in favor of defendants. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 26, 2009, Deborah Zar Pel-legrin, wife of/and Lynn John Pellegrin, filed this petition for damages against Boomtown, L.L.C., Louisiana-1 Gaming and Pinnacle Entertainment, Inc., alleging that on October 27, 2008, Mrs. Pellegrin tripped on a piece of carpet in the Boom-town Casino in Harvey, Louisiana and suffered injury. Plaintiffs alleged that the accident was directly caused by the negligence of Boomtown in allowing a customer hazard to exist in the food service area and in failing to adequately inspect and maintain the carpet and flooring of the casino. Defendants filed an answer generally denying the allegations of the petition, | sand also asserted allegations of comparative fault on the part of Mrs. Pellegrin.

Following initial discovery, defendants brought a motion for summary judgment on the basis that plaintiffs were unable to meet them burden of proof under La. R.S. 9:2800.6 that the defective condition existed for such a period of time that it would have been discovered if defendants had used reasonable care. Plaintiffs moved to continue the hearing on the summary judgment motion on the basis that they required additional discovery in the form of the corporate deposition of defendants and the deposition of Boomtown employees. The hearing was continued, and plaintiffs subsequently filed an opposition to defendant’s motion for summary judgment. Following a hearing on May 13, 2011, the trial court rendered summary judgment in favor of defendants, dismissing plaintiffs’ petition with prejudice. The trial court based its ruling on the absence of any evidence that defendants had actual or constructive notice of the condition of the carpet at the time of the accident.

ISSUES

By this appeal, plaintiffs contend that the trial court erred in granting summary judgment when there was “positive, unre-butted evidence ... that the alleged carpet defect was created by the merchant or its employees,” and that there was direct and circumstantial evidence that defendants had actual or constructive notice of the defect. Plaintiffs also contend that the trial court erred in failing to consider its claims of strict liability as contained in La. C.C. arts. 2322 and 2317.1.

LSÜMMARY JUDGMENT

The law pertaining to summary judgment is well settled. Summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 04/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B), (C). Judgment will be rendered in the movant’s favor if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

LIABILITY

Plaintiffs’ claim for damages is governed by La. R.S. 9:2800.6, which provides, in part, as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
ls(l) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Constructive notice is defined in the statute as follows: “the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.” La.R.S. 9:2800.6(0.

With regard to the second element of proving defendants had notice of the condition, plaintiffs argue that because defendants created this particular defect in the carpet, it is unnecessary for them to also prove defendants had notice of the defect. In support of this argument, plaintiffs cite several cases in which courts held that where the merchant is found to have created the hazard, proof of notice thereof is not required. Savoie v. Southwest Louisiana Hosp. Ass’n, 03-982 (La.App. 3 Cir. 2/25/04), 866 So.2d 1078; Ruby v. Jaeger, 99-1235 (La.App. 4 Cir. 3/22/00), 759 So.2d 905; Rodriguez v. Wal-Mart Stores, Inc., 02-104 (La.App. 3 Cir. 6/5/02), 820 So.2d 1190.

However, in each of the cited cases, there was evidence presented that indicated that the hazardous conditions were caused by the defendants in Rsome way: by overwaxing the floor, by dripping water from ice bags in an oyster bar, or by watering plants in the garden center. In the present case, both Mrs. Pellegrin as well as her companion testified in their depositions that they did not see what caused Mrs. Pellegrin to trip and fall. Although another patron testified that there was a “rumple” in the carpet in the area where Mrs. Pellegrin fell, there was no evidence submitted regarding what caused this condition or whether it existed prior to Mrs. Pellegrin’s fall. Plaintiffs’ reliance on deposition testimony of a former Boom-town employee that the employees are responsible for maintaining the carpet is not sufficient to prove that the “rumple” in the carpet was created by Boomtown employees. The cases cited by plaintiffs are therefore not controlling under the facts of the present case.

Pursuant to La. R.S. 9:2800.6, plaintiffs are required to prove that the condition of the carpet presented an unreasonable risk of harm to Mrs. Pellegrin and that Boom-town had actual or constructive notice of the condition prior to the occurrence. First, our de novo review fails to show that plaintiffs met their burden of proving the carpet was defective. Mrs. Pellegrin stated in her deposition that she tripped on a piece of carpet, but both Mrs. Pellegrin and her companion testified that they did not look at the carpet after the fall to determine what caused the incident. The only evidence in the record regarding the condition of the carpet in the area of Mrs. Pellegrin’s fall is that of Deborah Terre-bonne, a patron in the casino restaurant at the time of the incident. She testified that after she saw Mrs. Pellegrin fall, she noticed that there was a “rumple” in the carpet in the area. Plaintiffs submitted a photograph in which Ms. Terrebonne demonstrates with a t-shirt how the rumple appeared in the carpet, and also a photograph ^indicating how high the rumple appeared to be to Ms. Terrebonne. We have reviewed the evidence presented by plaintiffs and cannot say that plaintiffs met their burden of proving the condition of the carpet presented an unreasonable risk of harm to patrons of the restaurant.

We also find that plaintiffs failed to meet their burden on summary judgment to prove that defendants had notice of a dangerous condition in the carpet prior to this incident. Although plaintiffs failed to present direct evidence in the form of complaints or logs indicating that defendants knew or should have known of the condition, plaintiffs contend that the element of constructive notice can be established by circumstantial evidence.

In order to prove notice, plaintiffs rely on Ms. Terrebonne’s testimony of what the carpet looked like after Mrs. Pellegrin’s fall as well as her testimony that the condition of the carpet remained the same for weeks after Mrs. Pellegrin’s incident. Plaintiffs also rely on the deposition testimony of Rose Brehm, a former Boomtown employee and day supervisor of the restaurant, who stated that she had seen employees and guests stumble or lose their balance while walking on the carpet in the casino restaurant. She testified that it happened “not very often,” and that “it was [the employees’] impression of the carpet, not necessarily the way the carpet was.”

Plaintiffs argue that because Boomtown employees were aware that the carpet had previously caused people to lose their balance, Boomtown should have been aware of the dangerous condition on the date of this accident. Mrs. Brehm also testified that there were no procedures in place for inspecting the carpeting, and that Boom-town periodically changed sections of the carpeting when they “became loose at the seams.” Mrs. | sBrehm also stated that she did not examine the carpet on the day of Mrs. Pellegrin’s fall.

In their brief, plaintiffs argue that the carpet defect as described by Ms. Terre-bonne did not just spontaneously appear. Plaintiffs also argue that the Boomtown employees who were aware of the condition of the carpet and led the patrons to their tables were in a superior position to observe the hazardous condition on the day of this incident. Plaintiffs contend that there are factual issues as to defendants’ liability pursuant to negligence and strict liability principles.

However, the express terms of the merchant liability statute, La. R.S. 9:2800.6, provide that the claimant must prove that the merchant “had actual or constructive notice of the condition which caused the damage, prior to the occurrence.” Further, both La. C.C. arts. 2317.1 and 2322 require a showing that the owner knew or should have known with the exercise of reasonable care of the defect.

In the present case, there is no evidence, either direct or circumstantial, that defendants knew or should have known of the condition of the carpet prior to the occurrence. The testimony that employees and patrons sometimes lose their balance on the carpet, even assuming it to be true, is insufficient to prove that the casino was aware that the carpet presented an unreasonable risk of harm prior to this occurrence.

Plaintiffs did not establish that the carpet contained a “rumple” for any period of time prior to the occurrence, much less for a period of time sufficient to place Boom-town on notice of its existence. Although the Boomtown former employee stated she had seen people lose their balance on the carpet previously, she did not see the condition of the carpet before Mrs. 13PelIegrin fell. Plaintiffs have not presented any evidence that they can make a positive showing that the “rumple” existed for some period of time, or that the time was sufficient to put Boomtown on notice. There is also no evidence that Boomtown created or had actual knowledge of the condition pri- or to Mrs. Pellegrin’s fall.

Accordingly, plaintiffs have failed to produce factual support sufficient to establish that they will be able to meet their burden of proof at trial of proving either negligence or strict liability on the part of defendants. We therefore affirm the summary judgment rendered in favor of defendants. Plaintiffs shall bear all costs of this appeal.

AFFIRMED


author: AMY, Judge.

text:
    STATE of Louisiana v. Robert J. LeBLEU.
    No. 11-1158.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      David W. Burton, District Attorney, James R. Lestage, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Lafayette, LA, Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, For Defendani/Ap-pellant, Robert J. LeBleu.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

LThe defendant was chai'ged with two counts of distribution of a controlled dangerous substance, methamphetamine, a violation of La.R.S. 40:967(A). As part of a plea agreement with the State, the defendant pled guilty to those two charges. Pursuant to the terms of that agreement, the trial court sentenced the defendant to five years on each count, to run concurrently with each other and consecutively to any other sentence. Further, in accordance with the plea agreement, the trial court imposed a fine and directed the defendant to pay certain sums to the district attorney’s office, the public defender, and to the crime lab. The defendant appeals. The defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), and a motion seeking to withdraw from the case. For the following reasons, we affirm the defendant’s convictions and sentences. Further, we grant defense counsel’s motion to withdraw.

Factual and Procedural Background

On January 31, 2011, the State filed a bill of information charging the defendant, Robert J. LeBleu, with two counts of distribution of a controlled dangerous substance, methamphetamine, in violation of La.R.S. 40:967(A). According to the State, on two occasions, the defendant sold methamphetamine to an undercover police officer in Beauregard Parish. After reaching a plea agreement with the State, the defendant pled guilty to those charges on June 10, 2011. The plea agreement contained sentencing terms, and the trial court sentenced the defendant in accordance with those terms. Thus, the trial court sentenced the defendant to five years with the Department of Corrections on each count, concurrent with each other and consecutive to any other sentence. Also pursuant to the plea agreement, the trial court also imposed a fine of $2,000.00 plus court costs; $300.00 for the costs of prosecution; $300.00 to the public defender’s |2office, subject to a credit for any amounts already paid; and $250.00 to the Southwest Louisiana Crime Lab.

The defendant filed a pro se motion to reconsider, requesting that the trial court order his sentences to run concurrently with a probation revocation imposed in Calcasieu Parish. The trial court denied the motion.

The defendant appeals. His counsel has filed an Anders brief.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent.

The minutes from the sentencing hearing require correction. The minutes state: “[a]lso as part of the sentence and payable on parole, the defendant is to pay $2,000.00 plus costs of court, pay $800 cost of prosecution, pay $300 to the Office of Public Defender and $250 lab fee to the Southwest La crime lab [sic].” However, the sentencing transcript contains no reference to these amounts being payable on parole. “[I]t is well settled that when the minutes and the transcript are in conflict, the transcript prevails.” State v. Dorsey, 10-1021, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 637, 640 (quoting State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62 (alteration in original)). Thus, we direct the trial court to correct the sentencing minutes to delete the reference to amounts being “payable on parole.”

Anders Brief Analysis

The defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he has reviewed the | .^appellate record and has not found any non-frivolous issues which may be raised on appeal. Appellate counsel seeks to withdraw from the case.

In State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176, the supreme court expressly approved of the procedures for review of an Anders brief delineated by the fourth circuit in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). In Benjamin 573 So.2d at 531, the fourth circuit stated:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

This court has performed an independent review of the record, including the pleadings, minute entries, the bill of information, and the transcripts. The defendant was provided an opportunity to file his own brief, but did not do so.

A review of the record reveals that the defendant was present and represented by counsel at all crucial stages of the proceedings. The defendant entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Further, the defendant received legal sentences.

Our review of the record has not revealed any issues which would support an assignment of error on appeal. Thus, appellate counsel’s motion to withdraw is granted. See State v. Johnson, 09-159 (La.App. 3 Cir. 10/7/09), 20 So.3d-568.

I ¿DECREE

The convictions of the defendant, Robert J. LeBleu, for two counts of distribution of a controlled dangerous substance, methamphetamine, are affirmed. The defendant’s sentences are affirmed. The trial court is directed to correct the sentencing minutes in accordance with this opinion. Appellate counsel’s motion to withdraw is granted.

CONVICTIONS AND SENTENCES AFFIRMED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.


text:
    STATE of Louisiana v. Israel M. BEVERLY.
    No. 11-1201.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Lafayette, LA, Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Israel M. Beverly.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

liA jury convicted the defendant of one count of armed robbery with a firearm. The trial court sentenced the defendant to eighteen years at hard labor, to be served without benefit of probation, parole, or suspension of sentence. The trial court also ordered that the defendant serve an additional five years at hard labor, again without benefits, in light of the firearm penalty enhancement. The defendant appeals, questioning two evidentiary rulings. For the following reasons, we affirm the defendant’s conviction and sentence. We further instruct the trial court to advise the defendant of the appropriate deadlines associated with post-conviction relief.

Factual and Procedural Background

The State presented witness testimony indicating that the defendant, Israel Beverly, confronted Timothy Dominique as he was riding a bicycle through an intersection in Lake Charles on October 20, 2009. Mr. Dominique testified at trial that the defendant produced a gun, pointed it at Mr. Dominique’s head, and demanded the bicycle. Mr. Dominique explained that he dropped the bicycle and that the defendant put the gun into his “belt” when a car approached. Mr. Dominique testified that he jumped into the path of the car, that the occupants allowed him to enter the vehicle, and that he saw the defendant walking away from the scene with the bicycle. Mr. Dominique returned home and called 911 to report the incident.

Subsequently, on the same evening, another victim was allegedly robbed and shot to death. The investigations of the two robberies and the homicide proceeded together. Ultimately, in November 2009, a grand jury indicted the defendant with two counts of armed robbery with a firearm, violations of La.R.S. 14:64 and La.R.S. 14:64.3, and one count of second degree murder, a violation of La.R.S. |214:30.1. Following a multi-day trial, the jury found the defendant guilty of the count of armed robbery with a firearm relating to the events involving Mr. Dominique. However, the jury found the defendant not guilty of second degree murder and the remaining count of armed robbery with a firearm.

The trial court sentenced the defendant to serve eighteen years at hard labor and an additional five years for the use of a firearm in the perpetration of the offense. The trial court ordered that both aspects of this sentence be served without benefit of parole, probation, or suspension of sentence.

The defendant appeals his conviction, assigning the following as error in his brief to this court:

ASSIGNMENT OF ERROR NUMBER ONE: The trial court was in error to allow the state to introduce Mr. Beverly’s statement after the state had rested.
ASSIGNMENT OF ERROR NUMBER TWO: The trial court was in error to deny Mr. Beverly’s request to recall Detective Single during his case.

Discussion

Error Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. We find one such error insofar as the record does not indicate that the trial court advised the defendant of the prescriptive period for filing for post-conviction relief as is required by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion. We further instruct the trial court to file written proof in the record that the defendant received the notice.

| ^Defendant’s Statement

The defendant asserts that the trial court erred by allowing the State, after it rested its case-in-chief, to enter evidence regarding a statement he made to police. In particular, the defendant directs this court to La. Code Crim.P. art. 765(5) in support of his claim. The defendant also references jurisprudence for the proposition that the State may not introduce new issues or facts in rebuttal. See State v. Deboue, 552 So.2d 355 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990); State v. Williams, 445 So.2d 1171 (La.1984); and State v. Huizar, 414 So.2d 741 (La.1982).

The defendant casts this issue as one involving the State’s introduction of evidence on rebuttal. However, the statement now at issue did not arise in a rebuttal context. Instead, the substance of the statement in question arose during |4the State’s cross-examination of the defendant’s own witness, Detective Franklin Fondel.

In defense counsel’s questioning of Detective Fondel during the defense’s presentation of evidence, the following colloquy occurred:

Q Was this bike ever dusted for prints during the course of your investigation?
A The bike was transferred over to ID tech; so, they handled that part of it.
Q So, do you know whether it was dusted for prints?
A I’m not sure.
Q Okay. What is it you wanted to clear up about the bike when you brought him in the second time?
A Regarding to me giving you a call on the day that you brought Israel into our office—
Q Uh-huh.
A — and we gave you a call and advise[d] you that Israel made a statement while we were booking him in.
Q Okay. And that led you to bring Dominique in?
A Yes.
Q Okay. And why — if Dominique had already seen the bike and identified the bike, why did he have to give a detailed description of a bike that the police had already shown to him?
A Due to the statements that your client made, I wanted to ask him about those — that statement that your client made. That’s all the interview was about.

Thus, the first reference to the defendant’s statement during the booking process occurred under the defense counsel’s line of questioning. Thereafter, in its immediate cross-examination of that witness, the State elicited the substance of the | ¡¡statement, a single sentence in which the defendant admitted taking a bicycle but claimed it was his to begin with.

Louisiana Code of Evidence Article 611(B), which pertains to scope of cross-examination, instructs that “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” As the supreme court has explained, “[t]he trial court has broad discretion in controlling the examination of witnesses.” State v. Irish, 00-2086, p. 7 (La.1/15/02), 807 So.2d 208, 213, cert. denied, 537 U.S. 846, 123 S.Ct. 185, 154 L.Ed.2d 73 (2002).

We find no abuse of the trial court’s discretion in permitting the State’s questioning of the defendant’s witness on cross-examination. Instead, the defendant called Detective Fondel to the stand to testify regarding his investigation of the matter and engaged in questioning resulting in testimony from the detective indicating that the defendant had, indeed, made a brief statement during that investigation. The defendant opened the door to that type of testimony and cannot now complain of cross-examination related to that testimony and its context in the investigation. To the extent the defendant questions the veracity of Detective Fondel’s testimony, we note that Detective Fondel’s credibility was a matter appropriately examined at trial and assessed by the jury.

This assignment lacks merit.

\ (¡Recalling of a Dismissed Witness

The defendant began his presentation of evidence by calling Detective Gregory Single to the stand to testify regarding actions which were or were not taken during the investigation of the homicide and aggravated robberies. After defense counsel’s questioning of Detective Single on redirect examination, he informed the court: “That’s all I have, Judge.” After a brief period of additional cross-examination by the State, the trial court excused Detective Single.

Later in his presentation of evidence, the defendant called Detective Fondel as a witness, as stated above. Following Detective Fondel’s testimony, the defendant attempted to recall Detective Single to the stand. However, the trial court denied that request, pointing out that:

He has already been called and released. You have already called him in your direct examination. He is not subject to being recalled. You didn’t ask me to reserve the right to recall him. He is done.

Defense counsel objected to the ruling and, thereafter, rested its case.

The defendant questions the trial court’s refusal to allow him to recall Detective Single to the stand. In support of his argument, the defendant references supreme court jurisprudence relating to a defendant’s ability to offer additional defense evidence in the event new facts or issues have been adduced during the State’s rebuttal. State v. George, 95-0110 (La.10/16/95), 661 So.2d 975; State v. Harper, 93-2682 (La.11/30/94), 646 So.2d 338.

However, as above, the defendant’s argument here improperly frames the question before the court. The defendant did not attempt to offer additional defense evidence in light of new facts or issues adduced during the State’s rebuttal. Instead, the information regarding the statement arose during the defense counsel’s questioning of its own witness, was developed during the State’s permissive cross-[examination7 of that witness, and was subject to attack or rehabilitation during defense counsel’s re-direct of that witness. Furthermore, as pointed out by the trial court, Detective Single had been excused from the trial. Finally, the defendant has not indicated how Detective Single’s further testimony would have assisted his case in light of any of Detective Fondel’s testimony.

| ¡^Accordingly, we find no abuse of discretion in the trial court’s denial of the defendant’s request to recall Detective Single to the stand.

This assignment lacks merit.

DECREE

The defendant’s conviction and sentence are affirmed. The trial court is instructed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

      . Louisiana Code of Criminal Procedure Article 765 provides that:
      The normal order of trial shall be as follows:
      (1) The selection and swearing of the jury;
      (2) The reading of the indictment;
      (3) The reading of the defendant's plea on arraignment;
      (4) The opening statements of the state and of the defendant;
      (5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;
      (6) The argument of the state, the defendant, and the state in rebuttal;
      (7) The court’s charge;
      (8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases; and
      (9) The discharge of the jury in jury cases.
      When there is more than one defendant, the court shall determine the order of trial as between them.
      A defendant may waive his opening statement.

      . Louisiana Revised Statutes 14:64 requires that the "taking” in an armed robbery be “anything of value belonging to another from the person of another or that is in the immediate control of another[.J’ (Emphasis added.) While the State does not have to prove that the property at issue was owned by the victim, it is "essential that the accused was not the owner, and that the victim had a greater right to the item than did the accused.” State v. Rubin, 04-1531, p. 8 (La.App. 3 Cir. 4/6/05), 899 So.2d 180, 185 (quoting, State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401), writ denied, 05-1218 (La. 12/16/05), 917 So.2d 1106.
      However, the defendant has not questioned the sufficiency of the evidence in his appeal. We do not inquire into the sufficiency of the evidence sua sponte, but for clarification of the record, point out the victim identified the subject bicycle as his own, having found the frame of the bicycle several months prior to the alleged offense.

      . We note also that the defendant had pretrial notice that the State intended to offer the statement.

      . The colloquy in its entirety provides only that:
      THE COURT:
      Do you have any other witnesses?
      MR. CLEMONS:
      Detective Gregory Single, Judge.
      MR. CLEMONS [sic]:
      He has already been called and released.
      MR. CLEMONS:
      He is still here, Judge. I spoke with him. He’s here.
      THE COURT:
      He has already been called and released. You have already called him in your direct examination. He is not subject to being recalled. You didn’t ask me to reserve the right to recall him. He is done.
      MR. CLEMONS:

        Okay. Then I would like to note my objection, Judge. I don’t think there is a need to reserve the right to recall a witness. I can recall a witness as long as he has pertinent testimony to provide.
      THE COURT:
      I released him and told him he could go home. I told him there was no further need of his presence, is my recollection.
      MR. CLEMONS:
      Judge, I understand that. I just said that doesn’t legally prevent me from calling him if he is available and ready to testily.
      THE COURT:
      You have already asked him questions. You had him on cross-examination. You had him on cross-examination once before. You had him — you called him back again. You are not going to call him again.
      MR. CLEMONS:
      Okay, Judge. I am just noting my objection for the record.
      THE COURT:
      Your objection is noted for the record.
      Do you have any other witnesses?
      MR. CLEMONS:
      No. The defense rests.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Timothy Eric DAIGLE.
    No. KA 11-1209.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      James C. Downs, District Attorney, Monique Yvette Metoyer, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    George Lewis Higgins, III, Pineville, LA, for Defendant/Appellant, Timothy Eric Daigle.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hOn June 13, 2011, Defendant, Timothy Eric Daigle, pled guilty to one count of pornography with juveniles, in violation of La.R.S. 14:81.1. As part of his plea bargain, Defendant received a two-year hard labor sentence without benefit of probation, parole, or suspension of sentence; Defendant was credited for time served; Defendant was required to register as a sex offender, and Defendant reserved the right to contest the trial court’s ruling on his motions to suppress evidence under State v. Crosby, 338 So.2d 584 (La.1976).

The record shows that, prior to his guilty plea, Defendant filed a “Motion to Suppress Warrant and Incorporated Memorandum” on September 25, 2009. In his motion, Defendant contended that, contrary to law enforcement’s assertion that the files were in “plain sight,” the files were illegally seized from Defendant’s home computer as Defendant’s home computer neither broadcasted nor transmitted any information concerning the content of Defendant’s hard drive. Further, the prosecution did not allege that any such transmission or broadcast occurred. Defendant additionally urged that the only way the files could be viewed was through the use of complex decryption software. Defendant continued that the title “secure hash algorithm values,” SHA values, implied an expectation of privacy in addition to the encryption placed on the files. The presence of a firewall on Defendant’s computer also added to his expectation of privacy.

On November 30, 2009, the trial court denied Defendant’s motion to suppress:

Mr. Daigle is present. United States versus Stults, S-T-U-L-T-S, it is cited as 575 Federal 3rd, 834, and it was filed August 14, 2009, It’s United States District Court the 8th Circuit Court of Appeal in Nebraska.
| ¡And, the case says, basically, that there is no expectation of privacy on your client’s part in this case. He filed sharing information that was seized by the police. There was no expectation of privacy.
Basically, it says, “as a result, although it was a jail matter, an individual has an objectively reasonable expectation of privacy in his personal computer, we fail to see how this expectation can survive the defendant’s decision to install and use file sharing software, thereby opening his computer to anyone else with the same freely available program.” So it discusses the same issues that we have in our case with Daigle. It is completely on point with the Daigle issue. And, based upon this decision and all the cases that it cites, I’m going to deny your Motion to Suppress the evidence that was seized from Mr. Dai-gle, that we previously have heard testimony on.

On April 12, 2010, the defense filed a “Supplemental Motion to Suppress and Incorporated Memorandum” with the trial court. In this supplemental motion, Defendant pointed out that Detective Chad Gremillion with the Louisiana State Police testified that he did not download any files but viewed the SHA-1 values for the file, which were available to the general public. Defendant claimed that Detective Gremil-lion viewed the SHA-1 values by using the Wyoming Tool Kit, which has access to a database of SHA-1 values that may be associated with child pornography.

Defendant claimed that the State failed to establish probable cause because it relied solely on the information in that database, which was prohibited by the “Internet Crimes Against Children Data Network Access and Use Agreement,” IDN, for the Wyoming Tool Kit. Further, the program did not vouch for the completeness or accuracy of the information contained in the “IDN.” Despite this statement that the program could not guarantee the accuracy of the information, Detective Gremillion relied solely upon the database to establish probable cause. He did not actually view the files or consult with the source agency before taking action. Defendant urges, therefore, that “the warrant was not based upon proper probable cause.”

|sOn June 28, 2010, Defendant filed a “Second Supplemental Motion to Suppress” in open court. In this motion, the defense alleged that the ICAC, Internet Crimes Against Children, database only produced files possibly consistent with child pornography and that the database was not available to the public. Thus, the information contained in the affidavit supporting the warrant application was not true as the Wyoming Tool Kit and ICAC database are only available to members of law enforcement. Defendant argued that the trial court should not apply cases involving BearShare to the instant case because neither that program nor any other third-party peer sharing software was used in investigating Defendant. Defendant asserted he had an expectation of privacy because he had a binding contract with BearShare that limited file sharing access to other members.

On October 11, 2010, the district court denied Defendant’s second supplemental motion to suppress. Then, on June 13, 2011, the district court clarified that it had denied relief on all of Defendant’s motions to suppress. Defendant now appeals.

STATEMENT OF FACTS

The parties appeared for a pretrial discovery hearing on September 28, 2009. Defense counsel requested and received permission to proceed with the motion to suppress hearing as far as possible. Detective Chad Gremillion with the Louisiana State Police was called as the State’s sole witness. Detective Gremillion was involved in investigating Defendant on October 2, 2008, when he began a peer to peer proactive investigation. During the investigation, Detective Gremillion identified an internet protocol, “IP,” address, which was basically a telephone number, for a specific place where internet service was provided. Through information provided by the Wyoming Tool Kit, Detective Gremillion saw that the |4IP address “had been seen” with SHA values that were consistent with child pornography.

Detective Gremillion explained that the Wyoming Tool Kit was a program designed by the Wyoming Department of Justice that ran on the Gnutella network. Software such as Limewire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. Detective Gremillion described a SHA value as “a unique DNA fingerprint of a particular image.” Every computer file was assigned either a SHA value or a MD5 value. The SHA value was an alphanumeric string of approximately sixteen characters. Different copies of the same file could not have different SHA values.

Detective Gremillion stated that, based on the information obtained from the Wyoming Tool Kit, he saw that the IP address 74.195.10.157 contained images with SHA values suspected to be child pornography. When Detective Gremillion checked, he discovered a SHA value and the filename “Daisy” that he recognized. Detective Gremillion revealed how he recognized the SHA value:

Well, I remember them on the first three characters. For example, XQX, I know the XQX value is that of a 13-year-old girl performing oral sex on a male, and he then ejaculates into the juvenile[’]s face. Well, the Daisy — one of the Daisy series is 7 Foxtrot Foxtrot. I recognized the 7FF as being consistent with the Daisy series, which is a known series of images of child pornography, and it’s known through the National Center for Missing and Exploited Children in Alexandria, Virginia.

After locating and recognizing the SHA value, Detective Gremillion ran it through the Wyoming Tool Kit. The Wyoming Tool Kit processed the image Detective Gremillion located and reported that it was a known or notable image of child pornography. Detective Gremillion next identified the person who used the IP address by using a subpoena duces tecum to get Suddenlink to reveal the ^physical location of the IP address at a specific time and date, which was “October 2, 2008, at 16:52 hours minus 0600.” Suddenlink revealed that the IP address was assigned to a physical address on Series Street belonging to Defendant. Suddenlink was able to identify the owner of the modem because Defendant had either purchased or rented the modem from Suddenlink.

Based on the information he had obtained, Detective Gremillion applied for a search warrant. Detective Gremillion said, when he checked out the shared computer folders, he listed the three partial filenames that matched those on the Wyoming Tool Kit printout in the search warrant application: (1) PTHC5, “preteen hard core five,” The Daughter is Waiting; (2) Rape, Incest, My Daughter’s Five, YR-cont.; and (3) Daisy-012-084-12-year Old Underage. On November 4, 2008, the Ninth Judicial District Court issued a search warrant in the case. Detective Gremillion, along with a group of other officers and Detectives, executed a search warrant at Defendant’s residence on November 4, 2008, at approximately 17:29 hours. Detective Gremillion seized several computers. Detective Gremillion conducted an examination of the files on one computer and discovered that it contained images of child pornography.

Detective Gremillion explained peer-to-peer investigation. A peer-to-peer investigation involved files shared between peers. When either Limewire or BearShare was downloaded, depending on the version downloaded, the party downloading the software had the opportunity to share files with peers who had also opted to share, or the party downloading the software could have selected the option that would keep his or her files private. The software was free.

Detective Gremillion was not sure how many child pornography images were discovered during the preview of Defendant’s computer. In such cases, Detective Grem-illion customarily stopped looking after the first image was found. | fiThe first image was sufficient to establish probable cause to arrest. Detective Gremillion did not remember which image he found on Defendant’s computer, but he was certain it was child pornography

Detective Gremillion testified that, after completing the preview, Detective Gremil-lion transported the computer to the Louisiana State Police where he conducted a forensic examination of the item. This was accomplished by removing the hard drive, attaching it to a device that prevented additional files from being added to the hard drive, and processing the hard drive using “access data forensic tool kit Version 1.81.” Detective Gremillion copied Defendant’s hard drive and used the software to go through every sector of the computer and categorize all of the files into different categories. The categories allowed the investigator to see what was contained on the hard drive. Using this investigation technique, Detective Gremillion located the Daisy series of child pornography on Defendant’s computer. Detective Gremillion explained the type of images contained in the Daisy series:

Daisy series is a series of young, um, prepubescent females that are engaged in sexual positions. They have bows in their hair. They are naked; their legs are spread wide open with their genitalia exposed. They appear to me to be, uh, somewhat prepubescent or they do appear to be pubescent, um, and they are put in sexual positions and at the bottom there is a little title down there that has Daisy, and most of the time their file names are Daisy, uh, as in one of the cases here, it would be like Daisy-012-084, and it appears to be about a 12-year-old, underage, female engaged in sexualfiy] explicit positions. Sometimes the file names described the contents of the images.

Detective Gremillion related that his investigation revealed eighteen photographs and two videos of child pornography. He bookmarked those files and put them in his report, which was kept with the original case file. The hard drive was then put back into evidence.

17Petective Gremillion advanced that the contents of shared folders were in plain view because Defendant would have needed to enable file sharing on the computer. Detective Gremillion did not remember the files having any sort of encryption when he ran his forensic analysis of the hard drive. If decryption had been required, Detective Gremillion would have had to decrypt the file by typing in keywords. The files were not protected by a firewall because they were in a shared folder, which allowed anyone access as long as they had the same capabilities on their computer

On cross-examination, Detective Gremil-lion stated that the exact SHA values of the files he saw prior to the execution of the search warrant were in the discovery materials. The IP address belonged to Defendant and was assigned to his address. The peer-to-peer investigation did not specifically target Defendant; Detective Gremillion did not know the IP address belonged to Defendant. The file sharing software provided a list of regional IP addresses in the area; Detective Grem-illion looked at Defendant’s IP address because it was located within his jurisdiction.

Detective Gremillion testified that the Wyoming Tool Kit was made for law enforcement, and it was for use by law enforcement only. Detective Gremillion explained that the statements he made in his warrant affidavit concerning his remaining in areas only available to the general pub-lie and his use of peer to peer file sharing software available to the general public were correct:

Because I was operating on the Gnu-tella network. The Gnutella network is free and available to you ... at anytime you can download B[ear]Share or Lime-wire and you can access the internet at anytime.
Q. Right, but what allowed you to target this address is not available to the general public, is it?
A Yes, sir, it is. I can download ... a program called PHEX, type in a key wor[d] and from there get ... candidates who are sharing |sfiles. This so happen[s] to be that the Wyoming Tool Kit has made it easier for investigators to regionally locate ... suspects in their area.
Q Did you use the software that was available to the public in this investigation?
A Yes, sir, the backbone of this is Lime-wire or B[ear]Share.
... I did not have PHEX running that I believe.

However, the Wyoming Tool Kit that Detective Gremillion used in this investigation was not available to the general public.

Detective Gremillion thought that it was not necessary to penetrate a computer to obtain shared files. Instead, once the user gave permission for the file to be shared, the information became part of the world wide web. However, the files would have been physically stored on Defendant’s computer. By sharing the files, Defendant opened the door for them to be seen by anyone walking by. Detective Gremillion still would have been able to see the files and their contents without using the Wyoming Tool Kit; the program only made it easier to look at the files. By enabling file sharing software on his computer, Defendant made it possible for Detective Gremil-lion, any other law enforcement officer in the country, and any other person in the world to connect to Defendant’s computer and copy his shared files.

Detective Gremillion related the process of the search:

Q Tell ... the Judge, just how it works. You’re sitting at your computer, what magic button do you press?
A You click on the Wyoming Tool Kit icon on your computer.
A It runs, then you open up ... another program, called Gnu Watch, which is inside the tool kit....
A ... and operates within the tool kit, I guess....
IgA ... simultaneously....
A ... and that in turn goes out and searches for internet protocol addresses....
A ... that have been seen with titles and SHA values....
A ... that are consistent with child pornography.

Detective Gremillion knew that the IP address had been seen with known images of child pornography because the software developers had developed the program to see files being shared between computers through accessible internet points, and the program identified the SHA values as those consistent with images known in the jurisdiction as child pornography.

Detective Gremillion clarified that he did not physically download the files and view them; instead, he relied upon the files’ SHA values. Detective Gremillion did not use a search warrant to discover the IP address connected to the files; the software provided the information. Detective Gremillion then input the IP address into the system, and the software listed all of the files that have been seen at the IP address. Detective Gremillion reiterated that he used a subpoena duces tecum to link the IP address to its user.

Detective Gremillion said that the history he had of Defendant’s IP address began on September 22, 2008. He conducted the investigation on October 2, 2008. Then, when the warrant issued on November 4, 2008, he conducted the search on the same date. Detective Gremillion said that one could not use filenames to determine whether images were pornographic because filenames could be changed. The process of identifying pornographic images used SHA values because they could not be altered

On redirect examination, Detective Gremillion agreed that, when he initially went into the peer-to-peer file sharing program, he was in Limewire. The Gnutella | innetwork ran Limewire, BearShare, and a couple of other programs. The programs Detective Gremillion used, Wyoming Tool Kit and Gnu Watch, only ran on the Gnu-tella network. The file sharing between Defendant and Detective Gremillion occurred through a network that allowed anyone else with the same file sharing capabilities to share the same information. Detective Gremillion used the Wyoming Took Kit to substantiate that the shared files were child pornography.

On June 28, 2010, the parties again appeared in reference to a supplemental motion to suppress. At that hearing, the defense introduced into evidence a terms of use agreement for BearShare and for the Wyoming Tool Kit. The defense then stipulated that, at all times during the investigation, Defendant was under contract with BearShare.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent of the face of the record. After reviewing the record, we find there are no errors patent.

DISCUSSION

Defendant argues, “The court committed reversible error when it failed to grant defendant’s Motion to Suppress Evidence.” Defendant urges that the search warrant was invalid because it was based on inaccurate and invalid information and that, as a result, all evidence seized as a result of the search should have been suppressed under the fruit of the poisonous tree doctrine. Defendant asserts that the trial court utilized the wrong standard for determining whether the evidence should be suppressed. Defendant asks this court to review the issue under the de novo standard of review. The State responds that this assignment of error is totally without merit.

| n Defendant next claims that he had an expectation of privacy in the SHA values for his files as SHA means Secure Hash Algorithm. By its very name, it implies an expectation of privacy. Moreover, Defendant had an expectation of privacy because his files were encrypted and firewall-protected. Defendant equates Detective Gremillion’s viewing the SHA values for his files to a law enforcement officer climbing a fence to look inside someone’s window. Defendant distinguishes the instant case from recent cases involving privacy issues where law enforcement used BearShare because the Louisiana State Police did not use BearS-hare. Defendant entered into a binding contract with BearShare. As part of the contract, only BearShare members had access to file sharing.

The State responds that Defendant’s failure to select the option to prevent BearShare from sharing his files demonstrates that Defendant lacked a reasonable expectation of privacy. Therefore, there could be no violation of Defendant’s Fourth Amendment rights.

Defendant claims that there was no probable cause to issue the search warrant. Defendant states that his arrest was based upon law enforcement’s observation of files on a computer, which was linked to an unidentified modem bearing an unidentified media access control address linked to an internet protocol address that was, in turn, linked to Defendant’s address. Defendant contends that the files were not discovered through “plain sight.” Instead, the files were illegally seized when law enforcement extracted them from Defendant’s home computer. In support of his contention, Defendant points out that his home computer did not broadcast or transmit any information about the content of its hard drive. Defendant equates the prosecution’s argument that the information was available to anyone in the general public with peer-to-peer software to a claim that anyone with lock picks could unlock Defendant’s front door.

| [2Defendant further alleges that Detective Gremillion could not determine the content of a file by looking at SHA-1 values as SHA-1 values are made up of groups of numbers and letters that cannot be construed as obvious evidence. Defendant maintains that, although Detective Gremillion cross-referenced the SHA-1 values with those contained in a database of SHA-1 values that may be associated with child pornography, Detective Gremil-lion failed to establish probable cause because he relied solely on the word of those who privately maintained a database of values that possibly could be associated with child pornography. Defendant continues that the “Internet Crimes Against Children Data Network Access and Use Agreement” specifically prohibits arrests and searches based solely on the information contained in the “IDN” and requires that all data in the “IDN” be verified with the source agency prior to its use in any enforcement actions. As such, Detective Gremillion’s reliance upon the Wyoming ICAC Task Force’s national database, without viewing the files or consulting with the source agency, was inadequate to establish probable cause.

Defendant adds that the four points presented by the State in its application for a search warrant have all been proven to be inaccurate: (1) Detective Gremillion used a peer to peer file sharing program; (2) the program was free; (3) the program was readily available to the public; and (4) law enforcement downloaded a file from a shared folder on Defendant’s computer. The Wyoming Tool Kit used by the Louisiana State Police was not a peer to peer file sharing program. The Wyoming Tool Kit does not allow file sharing at all. Thus, it could not be used to download or access any shared folders on Defendant’s computer. Further, Detective Gremillion stated he never saw or opened any files from Defendant’s computer. Also, the Wyoming Tool Kit is not free as it is a SHA-1 sniffing program that costs several thousand dollars. Additionally, the Wyoming | íqTooI Kit is not readily available to the public; one must be a sanctioned law enforcement officer before being allowed to use the program. Finally, Detective Gremillion admitted at the hearing that he had never downloaded any files from Defendant’s computer and that he never had any peer to peer software installed.

Defendant contends that the affidavit submitted by the Louisiana State Police in support of the search warrant is also inaccurate as it contains a statement that, “No software other than ‘peer to peer’ file sharing software available to the general pub-lie, was used over the internet in order to come into contact with the possessors/distributors computer.” Defendant urges that Addendum A of the ICAC Collaboration Portal requires verification by a source agency before the data could be used in enforcement actions and all users must agree to adhere to the ICAC Data Network Access and Use Agreement. Because the information supplied to the judge issuing the warrant was inaccurate, the search warrant was illegally obtained and invalid.

The prosecution replies that Detective Gremillion used the Wyoming Tool Kit in addition to the peer to peer investigation and SHA value identification. The Wyoming Tool Kit was used to identify the IP addresses that have SHA image values that match those identified as child pornography. The State continues that SHA values constitute the unique identifiers for particular images, and the SHA values cannot be changed. Detective Gremillion testified that the Wyoming Tool Kit has a program that runs on the Gnutella network and that some of the software programs on the network are Limewire and BearShare. Under those software programs, those participating have an opportunity to either share or not share files with others. Defendant did not select the option to prevent sharing. A forensic search of Defendant’s computer verified the presence of child pornography.

| uThis court has determined that the proper standard of review for examining mixed questions of fact and law on a motion to suppress is abuse of discretion:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion.

State v. Bargeman, 98-617, p. 5 (La.App. 8 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-38 (La.5/28/99), 743 So.2d 658. The defendant bears the burden of proving the inadmissibility of evidence seized with a warrant. La.Code Crim.P. art. 703(D).

Federal courts have examined the issues presented in Defendant’s appeal and have determined that defendants have no Fourth Amendment privacy rights in computer files that they have shared on file sharing networks such as Gnutella regardless of whether the defendants have logged onto the Gnutella network through clients such as Limewire, Morpheus, BearShare, or Shareaza. See U.S. v. Gabel, 2010 WL 3927697 (S.D.Fla.2010); U.S. v. Stults, 575 F.3d 834 (8th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1309, 175 L.Ed.2d 1093 (2010); U.S. v. Ganoe, 538 F.3d 1117 (9th Cir.2008), cert. denied, — U.S.—, 129 S.Ct. 2037, 173 L.Ed.2d 1122 (2009); U.S. v. Perrine, 518 F.3d 1196 (10th Cir. 2008), cert. denied, — U.S. —, 131 S.Ct. 440, 178 L.Ed.2d 341 (2010). This is equally true if the investigating law enforcement officer uses software specially modified to screen for child pornography, such as ShareazaLE or the Wyoming Tool Kit, provided that the software has no greater access to the defendants’ computer files than that available to any other Gnu-tella client. Gabel, 2010 WL 3927697; U.S. v. Borowy, 595 F.3d 1045 (9th Cir. 2010), cert. denied, — U.S. —, 131 S.Ct. 795,178 L.Ed.2d 533 (2010).

| ¶.^Accordingly, Defendant’s argument that Detective Gremillion violated his right to privacy by using the Wyoming Tool Kit to examine the SHA values for files Defendant had already elected to freely share with other BearShare clients is without merit.

Furthermore, under La.Code Crim.P. art. 703(D), the defense had the burden of proving that the search warrant in the instant ease was invalid. At no point in the proceedings contained in the record did the defense admit the search warrant, the search warrant application, or the warrant affidavit into evidence. Thus, they are not part of the record before this court. The only information concerning the warrant is that gleaned from Detective Gremillion’s testimony, wherein he asserts that his statements in the warrant affidavit were accurate and true. Therefore, as there is no search warrant, search warrant application, or search warrant affidavit in the record, Defendant failed to prove both that there were any false statements contained therein and, consequently, that the search warrant was issued without probable cause.

CONCLUSION

Defendant’s conviction is affirmed.

AFFIRMED.