text:
    In re Daryl GOLD.
    No. 2010-B-2450.
    Supreme Court of Louisiana.
    March 15, 2011.
    Rehearing Denied April 29, 2011.

      Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for Applicant.
    Daryl Gold, Shreveport, for Respondent.
   PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Daryl Gold, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1971. Since that time, respondent has received fourteen private reprimands or admonitions for neglecting legal matters, failing to communicate with clients, failing to refund unearned fees, and failing to cooperate in a disciplinary investigation. Additionally, this court has considered three disciplinary proceedings against respondent. In the first, respondent commingled client funds, delayed payments to clients, failed to provide aecu-rate records of funds received and disbursed on behalf of clients, and failed to adequately cooperate in disciplinary investigations. For this misconduct, we suspended respondent from the practice of law for a period of six months. Louisiana State Bar Ass’n v. Gold, 563 So.2d 855 (La.1990) (“Gold I ”).

In In re: Gold, 96-2526 (La.4/18/97), 693 So.2d 148 {“Gold II ”), respondent failed to return property belonging to a third party and failed to cooperate with the |2OPC in its investigation. For this misconduct, we suspended respondent from the practice of law for one year and one day, with all but ninety days deferred, subject to two years of probation with conditions.

Finally, in the third matter, respondent failed to cooperate with the ODC in several investigations. Because this misconduct had occurred prior to our opinion in Gold II, we publicly reprimanded respondent and extended the probation imposed in that case. In re: Gold, 98-2819 (La.4/30/99), 734 So.2d 1210 (“Gold III”).

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In January 2008, the ODC filed formal charges against respondent in 08-DB-013. Respondent answered the formal charges, admitting some misconduct and denying other misconduct. The matter then proceeded to a formal hearing on the merits, conducted by the hearing committee in August 2008.

In April 2009, the ODC filed a second set of formal charges against respondent in 09-DB-022. Respondent answered the formal charges, denying any misconduct. The matter then proceeded to a formal hearing on the merits, conducted by a separate hearing committee in November 2009.

Thereafter, the two sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

U08-DB-013

Count I — The Spears Matter

In 2002, Anthony Spears hired respondent to represent him in post-conviction relief proceedings. Mr. Spears paid respondent $2,250 of the agreed-upon fixed fee of $5,000. Thereafter, respondent failed to file any documents or pleadings on Mr. Spears’ behalf. Nonetheless, he did not refund the unearned fee or otherwise address the unearned fee issue. Mr. Spears was unable to contact respondent to resolve these and other issues, despite numerous attempts to do so.

In July 2005, Mr. Spears filed a disciplinary complaint against respondent. In April 2008, respondent submitted the fee dispute to the Louisiana State Bar Association’s alternative dispute resolution program.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client) and 1.5(f)(5) (failure to refund an unearned fee).

Count II — The Kessee Matter

In September 2003, Hillary Williams hired respondent to represent Charles Kessee in a criminal matter in the United States District Court for the Western District of Louisiana. Respondent quoted a fee of $20,000 to handle the representation but agreed to charge only $10,000 if Charles pled guilty prior to trial. The fee agreement was not reduced to writing. On November 25, 2003, Ms. Williams paid respondent $10,000 in cash. On February 18, 2004, Charles’s mother, Earnestine Kessee, paid another $4,000 towards the $20,000 fee. The matter was fixed for trial, and a jury |4was selected. However, on March 1, 2004, before the jury was sworn, Charles entered a guilty plea.

Ms. Kessee made several attempts to discuss the unearned fee issue with respondent, but he failed to adequately address the matter. In January 2005, she filed a disciplinary complaint against respondent. In March 2005, respondent informed the ODC he intended to address the matter in fee arbitration. However, he did not do so until April 2008, when he submitted the fee dispute to the Louisiana State Bar Association’s alternative dispute resolution program.

The ODC alleged respondent violated Rule 1.5(f)(5) of the Rules of Professional Conduct.

Count III — The Failure to Cooperate Matter

In March 2007, Gerald Hall, one of respondent’s criminal clients, filed a disciplinary complaint against him. Respondent received notice of the complaint and was granted an extension of time to answer. Nonetheless, he failed to respond, necessitating the issuance of a subpoena to obtain his sworn statement, which was taken on August 15, 2007.

The ODC alleged respondent' violated Rule 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Hearing Committee Report

As previously indicated, this matter proceeded to a formal hearing on the merits conducted in August 2008. After reviewing the testimony and evidence presented at the hearing, the hearing ' committee found that respondent acknowledges the factual | .-,allegations of misconduct as alleged in Counts I, II, and III of the formal charges. In two cases, respondent charged fixed fees, failed to complete the representations, and failed or refused to refund the unearned fee or address the fee issue with his client as required by Rule 1.5(f)(5) of the Rules of Professional Conduct. Additionally, in Count III, respondent failed to cooperate with the ODC by failing and/or refusing to respond to the complaint, necessitating the issuance of a subpoena to compel his appearance at the ODC’s offices.

The committee determined the baseline sanction for respondent’s misconduct is a suspension. The committee also found 1) Respondent is in poor health and needs to maintain the health insurance coverage provided by his employer, the Capital Assistance Project of Louisiana; 2) Respondent does not deny his misconduct, and his misconduct was not intentional but rather one of a good attorney being a bad businessman; 3) Respondent is currently limiting his practice to the Capital Assistance Project of Louisiana.

In aggravation, the committee noted respondent’s prior disciplinary offenses and indicated its concern that respondent agreed to submit the Kessee matter to fee arbitration in 2005 but did not do so until April 18, 2008. The committee also found the mitigating factor of remorse to be present.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for one year and one day, with all but thirty days deferred, subject to the condition that respondent divest all of his current private cases within sixty days and refrain from ever representing any new private clients. The committee further recommended that, if respondent fails to comply with this condition, the deferred portion of the suspension be imposed.

The ODC filed an objection to the hearing committee’s recommendation.

| (09-DB-O22

The Davis Matter

In late 1997, Ronnie Davis hired respondent to represent him in a criminal matter involving the charges of battery on a police officer and resisting arrest. After a bench trial in 1999, Mr. Davis was acquitted of the battery charge but convicted of resisting arrest. Mr. Davis also hired respondent to represent him in a civil claim against the Shreveport Police Department for the use of excessive force. Respondent did not file the civil suit until August 2000, well beyond the one-year prescriptive period. The suit was eventually dismissed on an exception of prescription.

Mr. Davis sued respondent for malpractice and obtained a default judgment against him in the approximate amount of $97,000. Respondent later discharged the debt in bankruptcy.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 3.1 (meritorious claims and contentions).

Hearing Committee Report

As previously indicated, this matter proceeded to a formal hearing on the merits conducted in November 2009. Ronnie Davis and respondent both testified at the hearing, as did the attorney who represented Mr. Davis in the malpractice suit filed against respondent.

After reviewing the testimony and evidence presented at the hearing, the hearing committee found that Mr. Davis and respondent never had a written contract regarding the civil matter. However, Mr. Davis timely asked respondent to file a civil lawsuit and reasonably believed respondent had agreed to do so. By failing to timely 17file the lawsuit or find another attorney to do so, respondent violated Rule 1.3 of the Rules of Professional Conduct.

The committee determined respondent negligently violated duties owed to his client, causing harm by depriving the client of the opportunity to assert his civil claim against the City of Shreveport. The harm is mitigated by the fact that the civil claim faced great obstacles to success, and by the malpractice judgment the client obtained against respondent; however, the judgment was discharged in respondent’s bankruptcy without any compensation to the client. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is a public reprimand.

The only aggravating factor found by the committee is respondent’s prior disciplinary offenses. The committee found the following mitigating factors: absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse.

Considering all the circumstances, the committee recommended respondent be publicly reprimanded. The committee also recommended respondent be placed on probation for two years with the condition that he divest all of his current private cases within sixty days and refrain from ever representing any new private clients.

Neither respondent nor the ODC filed an objection to the hearing committee’s report or recommendation.

08-DB-013 & 09-DB-022

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined the hearing committee’s factual findings in 08-DB-013 are not manifestly erroneous. | sBased on these facts, the board determined respondent violated Rule 1.4 of the Rules of Professional Conduct by failing to communicate with Mr. Spears about the status of his post-conviction relief application or his request for the return of his fee. Respondent also violated Rule 1.5(f)(5) in both the Spears matter and the Kessee matter by failing to refund the amount of the fee the parties agreed was unearned or, absent such an agreement, failing to place disputed funds in a trust account until the dispute could be resolved. Furthermore, respondent initially failed to suggest means for a prompt resolution of these fee disputes. Finally, respondent violated Rule 8.1(c) when he failed to timely respond to Mr. Hall’s complaint, which forced the ODC to issue a subpoena to take his sworn statement.

With respect to 09-DB-022, the board determined the committee’s factual findings are supported by the record and are not manifestly erroneous. The board also determined the committee properly concluded that respondent violated Rule 1.3 but not Rule 3.1.

The board determined respondent violated duties owed to his clients and the legal profession. His conduct was knowing in the Spears, Kessee, and Hall matters but was negligent in the Davis matter. Respondent harmed Mr. Spears by delaying a refund of his fees. He harmed Ms. Kessee by delaying a possible refund of her fees. He caused an unwarranted expenditure of the ODC’s resources in having to issue a subpoena to obtain his sworn statement. However, the harm to Mr. Davis was limited to his being deprived of the opportunity to assert his civil claim.

The board found the following aggravating factors present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1971). The board found the following mitigating factors present: absence of a dishonest or selfish motive, personal or emotional problems | ^respondent’s poor health and his need for health insurance provided by the Capital Assistance Project), a cooperative attitude toward the proceedings, and remorse.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and. one day, fully deferred, subject to two years of probation with conditions.

The ODC filed an objection tó the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we .act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the record reveals respondent failed to communicate with a client, failed to promptly address fee disputes with two clients, failed to place disputed funds in a trust account, failed to cooperate with the ODC in an investigation, and neglected a legal matter, causing the client’s claim to prescribe. 11flBased on this misconduct, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In the Davis matter, respondent’s conduct was negligent. In the other matters, respondent acted knowingly. He violated duties owed to his clients and the legal profession. He caused harm to his clients and the attorney disciplinary system. The baseline sanction for respondent’s misconduct is a suspension. The record supports the aggravating and mitigating factors found by the board.

In light of respondent’s lengthy prior disciplinary record, we cannot excuse his misconduct in this matter or impose the fully deferred suspension which might otherwise be appropriate. Rather, we find that an actual period of suspension is warranted. We will impose a two-year suspension, deferring all but six months of the suspension on the condition that respondent successfully complete a two-year period of probation. We caution respondent that any misconduct on his part during the period of probation may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

InDECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Daryl Gold, Louisiana Bar Roll number 6083, be and he hereby is suspended from the practice of law for two years. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for two years. Any misconduct by respondent during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . 08-DB-013 originally consisted of four counts of misconduct; however, the ODC withdrew one count of misconduct during the formal hearing. Accordingly, this opinion will not address the misconduct contained in the withdrawn count.

      . Following an arbitration hearing on December 3, 2008, respondent and Mr. Spears agreed that respondent would refund $1,250 to Mr. Spears’s father, James Wall. Respondent has supplemented the record of this matter to include a copy of his canceled check payable to Mr. Wall.

      . Following an arbitration hearing on May 12, 2009, the arbitrator determined respondent owes no refund of the $14,000 he received towards his $20,000 fee. Respondent has supplemented the record of this matter to include a copy of the arbitrator’s ruling.


source: Caselaw Access Project

author:
KIMBALL, C.J.
      JOHNSON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Johnny MORGAN.
    No. 2009-KK-2352.
    Supreme Court of Louisiana.
    March 15, 2011.

      James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, Lawrence Boyd McAlpine, Jr., Dylan Christopher Alge, Assistant District Attorneys, for Applicant.
    Mark David Plaisance, Baker; Smith & Chatagnier, Jason L. Chatagnier, for Respondent.
   KIMBALL, C.J.

_JjWe granted certiorari in this case to determine whether the court of appeal erred in granting the defendant’s motion to suppress evidence after finding the defendant’s unprovoked flight from an officer at 1:45 a.m. in a dimly lit, low-crime area did not justify a police officer’s investigatory stop of the defendant. For the reasons discussed herein, we reverse the court of appeal and conclude the officer had reasonable suspicion to conduct the stop.

FACTS AND PROCEDURAL HISTORY

At approximately 1:45 a.m. on April 14, 2008, Sergeant Greg Brown of the Baker Police Department was patrolling Groom Road in Baker, Louisiana. While traveling eastbound on Groom Road, Sergeant Brown observed the defendant, Johnny Morgan, in a dimly lit area walking toward him, traveling westbound on Groom Road. According to Sergeant Brown, it was cool outside, approximately 55 degrees, and the defendant was wearing a blue, hooded jacket and white cargo pants. Sergeant Brown testified that upon seeing the marked patrol unit, the defendant immediately turned and ran in the opposite direction. Sergeant Brown chased the defendant for several blocks before finally stopping him near McVea Street, which is around the |2corner from Groom Road. Sergeant Brown then ordered the defendant to stand in front of his patrol unit. During the approximately one- or two-minute interview, the defendant appeared very nervous, looking down and away from the sergeant and repeatedly putting his hands in his pockets. Sergeant Brown also noted that although it was cool outside, the defendant was sweating. Because of the defendant’s nervous behavior, Sergeant Brown shined his flashlight around the defendant’s waist and saw a hollowed-out, blue ink pen, which, was burned at one end and clipped to the defendant’s right, front pants pocket. Based upon his training and experience with narcotics, Sergeant Brown immediately recognized the pen as a crack pipe, seized it, and placed the defendant under arrest. After giving the defendant a Miranda warning, Sergeant Brown conducted a search incident to the arrest and found crack cocaine in the defendant’s right, rear pants pocket.

The defendant was charged by bill of information with one count of possession of illegal narcotics pursuant to La. R.S. 40:967(C) (Possession of a Schedule II Controlled Dangerous Substance: Cocaine) and one count of possession of illegal ladrug paraphernalia pursuant to La. R.S. 40:1023(C). The defendant filed a Motion to Suppress the crack pipe and the crack cocaine, arguing they were seized during an illegal search and seizure because Sergeant Brown did not have reasonable suspicion that the defendant had committed a crime. Thus, the defendant claims Sergeant Brown violated his rights under the Louisiana and the United States Constitutions.

At the hearing on the Motion to Suppress, Sergeant Brown was the only witness who testified, establishing the aforementioned facts. On April 20, 2009, the trial judge denied the defendant’s Motion to Suppress, finding the defendant’s conduct was suspicious and Sergeant Brown had a right to stop him to find out what was going on. Defense counsel orally gave notice of his intent to seek writs and filed an application to the court of appeal on May 20, 2009. On September 29, 2009, the Louisiana First Circuit Court of Appeal granted the defendant’s writ application, reversed the trial court’s ruling, and remanded the matter for further proceedings. The First Circuit, citing State v. Benjamin, 97-3065 (La. 12/1/98); 722 So.2d 988, concluded that flight from a police officer alone, without something more, will not provide justification for a stop. Thereafter, the state filed a writ application with this Court, which was granted on November 12, 2010. State v. Morgan, No. 09-2352 (La.11/12/10); 49 So.3d 874.

DISCUSSION

Article I, Section 5 of the Louisiana Constitution of 1974 as well as the Fourth Amendment to the United States Constitution protect individuals from unreasonable ^searches and seizures. Under these provisions, ■ and as a general rule, a search warrant is required to conduct a constitutionally permissible search. Over time, however, the United States Supreme Court has carved out several exceptions to the warrant requirement that justify war-rantless searches in limited circumstances. In Terry v. Ohio, the Supreme Court held that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 892 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). To satisfy the reasonableness requirement of the Fourth Amendment, police officers conducting an investigatory stop must have a reasonable suspicion supported by articulable facts that criminal activity “may be afoot.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884).

Although reasonable suspicion is a less demanding standard than probable cause, the Fourth Amendment requires some minimal level of objective justification for making the stop. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585. In Terry, the Supreme Court held, “in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticular-ized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” 392 U.S. at 27, 88 S.Ct. at 1883. The Supreme Court' further explained that officers are allowed to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Furthermore, a reviewing court must give due weight to factual inferences drawn by resident judges and local law enforcement officers. Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

Because reasonable suspicion is not readily defined, the Supreme Court has held that courts reviewing the legality of an investigatory stop must consider the totality of the circumstances of each case to see whether the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. Sokolow, 490 U.S. at 7-8, 109 S.Ct. at 1585 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Cortez, 449 U.S. at 417, 101 S.Ct. at 695). When applying the totality of the circumstances test, the Supreme Court considers several factors particularly relevant, including the location and time of the stop, as well as the defendant’s actions preceding the stop. Although an individual’s presence in a “high-crime area,” alone, is insufficient to support a reasonable suspicion of criminal activity, the Supreme Court has held that a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); Adams v. Williams, 407 U.S. 143, 144, 147-48, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972)). An individual’s nervous, evasive behavior is also a pertinent factor in determining whether an officer had reasonable suspicion. Ward-low, 528 U.S. at 124, 120 S.Ct. at 676 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984); Sokolow, 490 U.S. at 8-9, 109 S.Ct. at 1586),

| ,jln Illinois v. Wardlow, the Supreme Court held that unprovoked flight by an individual in a high-crime area is sufficient to give police officers reasonable suspicion of criminal activity. 528 U.S. at 124, 120 S.Ct. at 676. Although the Supreme Court refused to adopt a per-se rule regarding, whether flight from police officers, alone, can justify an investigatory stop, it indicated that flight from a police officer plays a major role in the totality of the circumstances analysis. This is evident from the Supreme Court’s declaration that:

Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.... Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

Id. at 124-125, 120 S.Ct. at 676. Federal courts consistently refer to Wardlow as authority for finding reasonable suspicion based upon' a defendant’s unprovoked flight from a high-crime area. Additional factors considered by reviewing courts include the “lateness of the |7hour,” whether an area is dimly lit, and the nature of the defendant’s flight.

The Terry exception to the warrant requirement has been adopted by this Court and codified in Louisiana Code of Criminal Procedure article 215.1. See State v. Chopin, 372 So.2d 1222, 1224 (La.1979) (citing State v. Drew, 360 So.2d 500 (La.1978); State v. Robinson, 342 So.2d 183 (La.1977)). We have held that an investigatory stop must be based upon reasonable cause to believe the individual is, | Shas been, or is about to be, engaged in criminal conduct. State v. Belton, 441 So.2d 1195, 1198 (La.1983) (citing State v. Andrishok, 434 So.2d 389 (La.1983); Chopin, 372 So.2d at 1224). We have also held that reviewing courts must look at the totality of the circumstances when determining whether a police officer had reasonable cause to stop a defendant. Belton, 441 So.2d at 1198 (citing Cortez, 449 U.S. at 417, 101 S.Ct. at 695); State v. Johnson, 01-2081 (La.4/26/02); 815 So.2d 809, 811; State v. Benjamin, 97-3065 (La.12/1/98); 722 So.2d 988, 989. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, we have held that this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. Belton, 441 So.2d at 1198 (citing State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980)).

However, in several cases, we have expressly held or at least implied that the defendant’s flight from police officers is the most important factor in the totality of the circumstances analysis. In State v. Lewis, we specifically held that, “the totality of the circumstances known to the officer at the time, including the residents’ complaints of drug activity, the ‘hot spot’ nature of the area, respondent’s nervousness, and, most importantly, his unprovoked headlong flight from the officer, gave rise to reasonable suspicion for an investigatory detention.” 00-3136 (La.4/26/02); 815 So.2d 818, 821 (emphasis added); cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002). Similarly, in State v. Belton, we held that the defendant’s flight from the approaching officers, in addition to the other facts known by the officers at the time, was sufficiently suspicious to justify an investigatory stop. 441 So.2d at 1199. We used identical language in State v. Johnson, when we held that the defendant’s evasive behavior in quickening his pace to a “near run,” in the 19context of the other circumstances known to the officer, including the lateness of the hour, the high-crime character of the area, and the defendant repeatedly glancing over his shoulder, provided the minimal objective justification for an investigatory stop. 01-2081 (La.4/26/02); 815 So.2d 809, 811. We even found reasonable suspicion in State v. Benjamin, where the only factor in addition to the defendant’s flight was the fact that he clutched his waistband as if he were supporting a weapon or contraband. 97-3065 (La.12/1/98); 722 So.2d 988, 989.

Further supporting this notion is our recognition that although flight, alone, is insufficient to support a finding of reasonable suspicion, “Given the highly suspicious nature of flight from a police officer, the amount of additional information required in order to provide officers a reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened.” Id. (citing Belton, 441 So.2d at 1195). We have further found that an even greater level of suspicion attaches to unprovoked flight because it is not a mere refusal to cooperate or an assertion of one’s right to walk away. State v. Alvarez, 09-0328 (La.3/16/10); 31 So.3d 1022, 1024. In Alvarez, we held that, “allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” Id. (citing Wardlow, 528 U.S. at 125, 120 S.Ct. at 676). We subsequently concluded that when a defendant’s unprovoked flight is added to several other factors, it provides officers with reasonable suspicion to investigate further and initiate an investigatory stop. Id. Thus, a defendant’s flight, especially when unprovoked, appears to be the crucial factor in the reasonable suspicion analysis.

Another important factor in the analysis is a trained officer’s inferences and deductions made regarding a defendant’s actions and the cumulative information |inavailable to him at the time of the stop. Johnson, 815 So.2d at 811 (citing Arvizu, 534 U.S. at 273, 122 S.Ct. at 750-51). In Johnson, we gave “due deference” to an officer’s deductions that the defendant was trying to cut him off by quickening his pace to a “near run,” repeatedly looking over his shoulder in- the officer’s direction, and heading toward an area where the police could not follow him. Id. Other relevant factors in determining whether there was reasonable, suspicion for an investigatory stop include the “lateness of the hour,” whether the area was dimly lit, and whether the stop occurred in a high-crime area.

ANALYSIS

The issue before this Court is whether Sergeant Brown had reasonable suspicion to conduct an investigatory stop of the defendant, which subsequently led to the defendant’s arrest when the officer saw a crack pipe in plain view on the defendant’s person. In determining whether there was reasonable suspicion to seize the defendant in this case, we.must look at the totality of the circumstances. State v. Belton, 441 So.2d at 1199. Sergeant Brown,, the only witness who testified at the hearing on the Motion to Suppress, said that he first saw the defendant walking toward him on Groom Road and, upon seeing the marked police unit, the defendant began to run away at a fast pace. Although he did not witness the defendant commit any crime, Sergeant Brown decided to stop and detain the defendant because he had a hunch the defendant was “up to no good,” based upon the defendant “running and |T1being evasive, at the time of the hour in a poor lit [sic] area.” Thus, Sergeant Brown believed these three factors — the time, the lighting, and the defendant’s unprovoked flight for several blocks — were sufficient to support a reasonable suspicion of criminal activity. However, Sergeant Brown also testified that the area where the stop occurred was not a high-crime area. This Court has not previously spoken on the issue of flight in a low-crime area or whether a defendant’s flight from a low-crime area contributes to, or detracts from, the reasonable suspicion analysis. Thus, this issue is res nova before this Court.

In prior cases, we have recognized each of the factors relied upon by Sergeant Brown as relevant in the totality of the circumstances analysis. However, we have never had to determine whether these three specific factors — unprovoked flight, late hour, and' dimly lit area — are sufficient to give an officer reasonable suspicion of criminal activity when the defendant is not in a high-crime area. Although Wardlow and its progeny have found a defendant’s actions are more suspicious in high-crime areas, the concurring/dissenting opinion disagreed. Justice Stevens, writing for the minority, explained that, “because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so.” Wardlow, 528 U.S. at 139, 120 S.Ct. at 684.

Moreover, the Wardlow majority declared that officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. 528 U.S. at 124, 120 S.Ct. at 676. The majority explained:

In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law | ^enforcement officers where none -exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

Id. (citing Cortez, 449 U.S. at 418, 101 S.Ct. at 695). We used similar language in State v. Johnson, when we held that officers are allowed to “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” 815 So.2d at 811. Although these cases allow officers to make inferences and deductions about an individual’s behavior, neither specifically limits these deductions to an individual’s actions in a high-crime area. Thus, officers should be allowed to make inferences and deductions about an individual’s actions regardless of whether he is in a high-crime or low-crime area.

Applying those principles here, based upon the totality of the circumstances, we conclude that Sergeant Brown did have sufficient justification to conduct' an investigatory stop. When Sergeant Brown first saw the defendant walking toward him at 1:45 a.m. on Groom Road, he did not turn on his emergency blue light, show the defendant his weapon, or even call out to the defendant. According to his uncontradicted testimony, Sergeant Brown continued patrolling and became suspicious of possible criminal activity when the defendant saw the marked police unit and immediately took off running in the opposite direction. Under State v. Alvarez, the defendant’s unprovoked flight was more suspicious than ordinary flight because he was not merely refusing to cooperate or asserting his right to walk away from Sergeant Brown when he turned and ran in the opposite direction for several blocks. 31 So.3d at 1024. According to Alvarez, “allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face 11sof police questioning.” Id. (citing Wardlow, 528 U.S. at 124-25, 120 S.Ct. at 676).

Moreover we have held that flight is inherently suspicious activity, such that it requires much less additional information to justify an officer’s reasonable suspicion. State v. Benjamin, 722 So.2d at 989. Here, Sergeant Brown saw the defendant walking near a residential area at 1:45 a.m. before he noticed the police unit and took flight. The defendant’s presence on a dimly lit street at such a late hour, when most people are in bed, immediately arouses suspicion regarding a potential burglary or theft. Sergeant Brown testified that he had experience with people fleeing when they saw the police coming, that he has arrested such people in the past, and that they were subsequently found with narcotics or weapons. He further testified, “from my experience, when somebody runs at that time of night, especially coming from a poor lit [sic] area, I believe something done happened [sic] or was about to happen.” Thus, Sergeant Brown’s decision to conduct an investigatory stop was based upon the defendant’s unprovoked flight, from a dimly lit area at 1:45 a.m., as well as Sergeant Brown’s experience with individuals who fled from police officers in similar situations. In State v. Johnson, we hot only recognized that trained officers are allowed to make deductions and inferences about a defendant’s behavior, we also gave “due deference” to the officer’s deductions. 815 So.2d at 811 (citing Arvizu, 534 U.S. at 273-74, 122 S.Ct. at 750-51). Consequently, the court of appeal erred in failing- to give any deference to Sergeant Brown’s inferences and deductions regarding the defendant’s unprovoked flight from a residential area at 1:45 a.m.

Under the totality of the circumstances, we conclude Sergeant Brown had reasonable suspicion to justify an investigatory stop of the defendant. He observed the defendant walking in a dimly lit, residential area at 1:45 a.m., when most people are inside or in bed. Sergeant Brown saw the defendant take notice of the marked | upolice vehicle and immediately start running in the opposite direction. In Terry, the Supreme Court held, “in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticular-ized suspicion or ‘hunch,’ but to the specific, reasonable inferences which he is entitled to draw from the facts in light of his experience.” 392 U.S. at 27, 88 S.Ct. at 1883. Based upon his experience, Sergeant Brown reasonably believed the defendant’s behavior indicated that he had just committed a crime or was about to do so. Therefore, we conclude the defendant’s unprovoked flight, coupled with the late hour, dimly lit area,, and Sergeant Brown’s inferences and deductions based upon his experience with individuals who flee from the police, together support a finding of reasonable suspicion.

Thus, the court of appeal erred in granting the defendant’s Motion to Suppress the evidence seized as a result of the investigatory stop. ..For these reasons, we reverse the judgment of the court of appeal and hold that the officer had reasonable suspicion to conduct an investigatory stop.

REVERSED.

JOHNSON, Justice dissents and assigns reasons.

JOHNSON, Justice

dissents and assigns reasons.

|,In my view, the unprovoked flight, alone, does not provide reasonable suspicion for an investigatory stop and frisk. State v. Morgan, 09-0904 (9/29/09) (citing State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988). Flight must be combined with some other suspicious activity, and the arresting officer must be able to articulate what the other suspicious factors are to justify a stop and frisk. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). “The totality of the circumstances, as always, must dictate the result.” Wardlow, 528 U.S. at 136, 120 S.Ct. at 682. Among some citizens, particularly minorities residing in high crime areas, any sudden appearance of a police vehicle suggests crime activity. Many law abiding citizens would want to avoid a crime scene at “any” cost.

In Illinois v. Wardlow, the Court declined to adopt a per se rule proposed either by the state, i.e., that flight alone in response to police presence always provides reasonable suspicion for a stop, or by the defendant; that flight alone never provides reasonable suspicion, the analysis here, as elsewhere in the realm of the Fourth Amendment, turns on an assessment of the totality of the circumstances, aligned as they may be between two poles fixed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “the Fourth Amendment requires at least a minimal level of ^objective justification for making the stop ... [but] [t]he officer must be able to articulate more than an ‘incohate and unparticularized suspicion or “hunch” ’ of criminal activity.” Wardlow, 528 U.S. at 123-24, 120 S.Ct. at 675-76 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989))(in-ternal quotation marks and citation omitted) and quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

      . La. R.S. 40:967(C) provides:
      C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.
      (1) Any person who violates this Subsection with respect to pentazocine shall be imprisoned with or without hard labor for not less than two years and for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.
      (2) Any person who violates this Subsection as to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

      . La. R.S. 40:1023(C) provides:
      It is unlawful for any person to use, or to possess with intent to use, any drug paraphernalia, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Part.

      . See United States v. Lawshea, 461 F.3d 857, 859-60 (7th Cir.2006); United States v. Stroman, 500 F.3d 61, 64 (1st Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 674, 169 L.Ed.2d 528 (2007); United States v. Caruthers, 458 F.3d 459, 465-66 (6th Cir.2006); United States v. Shambry, 392 F.3d 631, 635 (3rd Cir.2004), cert. denied, 544 U.S. 1006, 125 S.Ct. 1953, 161 L.Ed.2d 785 (2005); Curry v. City of Syracuse, 316 F.3d 324, 335 (2nd Cir. 2003); United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir.), cert. denied, 540 U.S. 860, 124 S.Ct. 166, 157 L.Ed.2d 110 (2003); United States v. Jordan, 232 F.3d 447, 449 (5th Cir.2000).

      . See Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); United States v. See, 574 F.3d 309, 314 (6th Cir.2009); United States v. Bailey, 417 F.3d 873, 877 (8th Cir.), vacated on other grounds, 2005 U.S.App. LEXIS 19891, at *1 (8th Cir. Sept. 15, 2005); United States v. Jones, 432 F.3d 34, 41 (1st Cir.2005); United States v. Brown, 334 F.3d 1161, 1165 (D.C.Cir.2003), cert. denied, 541 U.S. 954, 124 S.Ct. 1702, 158 L.Ed.2d 388 (2004); United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir.), cert. denied, 540 U.S. 860, 124 S.Ct. 166, 157 L.Ed.2d 110 (2003); United States v. Valentine, 232 F.3d 350, 356 (3rd Cir.2000), cert. denied, 532 U.S. 1014, 121 S.Ct. 1748, 149 L.Ed.2d 670 (2001); United States v. Moore, 235 F.3d 700, 704 (1st Cir.2000).

      . See Bailey, 417 F.3d at 877; Jones, 432 F.3d at 41; United States v. Roggeman, 279 F.3d 573, 578-79 (8th Cir.), cert. denied, 537 U.S. 879, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002). See also Tanner v. State, 228 S.W.3d 852 (Tex.App.2007).

      . See Wardlow, 528 U.S. at 124, 120 S.Ct. at 676; Lawshea, 461 F,3d at 860; Franklin, 323 F.3d at 1301; United States v. Gordon, 231 F.3d 750, 757 (11th Cir.2000), cert. denied, 531 U.S. 1200, 121 S.Ct. 1207, 149 L.Ed.2d 121 (2001).

      . La.C.Cr.P. art. 215.1 provides:
      A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may -demand of him his name, address, and an explanation of his actions.
      B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
      C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
      D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

      . See Michigan v. Long, 463 U.S. at 1050, 103 S.Ct. at 3481; Alvarez, 31 So.3d at 1024; State v. Cook, 332 So.2d 760, 763 (La.1976); State v. Darby, 550 So.2d 963, 966 (La.App. 5 Cir.1989).

      . See State v. Seltzer, 08-34 (La.App. 5 Cir. 5/27/08); 986 So.2d 762, 767; writ denied, 08-1662 (La.4/17/09); 6 So.3d 788; State v. Honeycutt, 08-126 (La.App. 5 Cir. 5/27/08); 987 So.2d 250, 255; State v. Stanfield, Jr., OS-839 (La.App. 5 Cir. 3/14/06); 925 So.2d 710, 717. See also Tanner v. State, 228 S.W.3d 852 (Tex.App.2007).

      . See Wardlow, 528 U.S. at 124, 120 S.Ct. at 676; Adams v. Williams, 407 U.S. at 147-48, 92 S.Ct. at 1924; State v. Lewis, 815 So.2d at 821.


author:
WILLIAMS, J.
      GASKINS, J.,

text:
    B.W. GREEMON, Plaintiff-Appellee v. CITY OF BOSSIER CITY, Louisiana and The Bossier City Municipal Fire and Police Civil Service Board, Defendants-Appellants.
    No. 45,664-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 24, 2010.
    Writ Granted March 4, 2011.

      Cook, Yancey, King & Galloway, by Kenneth Mascagni, Michael D. Lowe, Shreveport, for Appellant, City of Bossier City.
    Bradley, Murchison, Kelly & Shea, LLC, by Jerald N. Jones, Kenneth D. McLean, Shreveport, for Appellant, Bossier City Municipal Fire, and Police Civil Service Board.
    Hilburn & Hilburn, by Cary A. Hilburn, Shreveport, for Appellee, B.W. Greemon.
    Before WILLIAMS, STEWART, GASKINS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

|2The defendants, the City of Bossier City (“Bossier City”) and the Bossier City Municipal Fire and Police Civil Service Board (“the Board”) appeal a judgment in favor of the plaintiff, B.W. Greemon. The court found that the Board’s decision upholding the plaintiffs termination was void.- The matter was remanded to the Board for further proceedings in strict adherence with the Open Meetings Law (“OML”). For the following reasons, we affirm.

FACTS

B.W. Greemon (“Greemon”) was a paramedic with the Bossier City Fire Department (“BCFD”). On November 7, 2007, Greemon was serving as the senior paramedic on the BCFD’s Trauma One ambulance unit. His unit responded to a call from Bossier City Police that an apparently intoxicated individual, Eric Holloway (“Holloway”), was in need of medical assistance.

When Greemon arrived on the scene, Holloway was in the back seat of a police vehicle. Greemon was informed that Holloway had consumed as many as 18 beers and was possibly a diabetic. However, Greemon denies that he also was informed that Holloway had consumed methadone that day. After taking Holloway’s vital signs and blood sugar measurement, Greemon decided not to transport Holloway to the hospital. Instead, he authorized Holloway’s transport to jail, where he was found dead the next morning. After Holloway’s death, Greemon prepared a written patient care report detailing his treatment of Holloway on the previous day.

A complaint was filed against Greemon concerning his care ofJjHolloway. Greem-on was questioned by BCFD’s internal affairs department and its predisciplinary review board. Fire Chief Sammy Halphen reviewed the results of the investigation into Greemon’s conduct. In November 2007, Greemon was terminated from his employment with the BCFD.

Greemon filed a civil service appeal, which was considered by the Board on March 12, 2008. At the conclusion of the taking of evidence, the attorneys — Cary Hilburn for the plaintiff and Truly McDaniel for Bossier City — were asked by the Board’s legal advisor, Cecil Campbell, if they were willing to submit the matter:

MR. MCDANIEL: I’m willing to submit it, Your Honor. I think the board has heard everything we’ve heard.
MR. CAMPBELL: Mr. Hilburn.
MR. HILBURN: Judge, submission is fine.
MR. KEITH: Mr. Chairman, I make a motion we go into executive session.
BOARD MEMBER: Second.
MR. HUCKABAY: At this time the board will recess for executive session.
MR. HILBURN: Thank the board for its time.

The Board then immediately went into executive session without a vote. No objection or comment was made as to the Board’s failure to take a vote on the motion to go into executive session. Upon returning from executive session, the Board voted, 3 to 2, to uphold Bossier City’s termination of Greemon, finding that the city acted in good faith and for just cause.

On April 11, 2008, Greemon filed a “notice of appeal and petition for relief from denial of due process” in the district court, alleging that the Board’s decision was not made in good faith for cause, and alternatively that he was denied his right to due process. In relevant part, he asserted the following:

|4II. Factual Background
10. After a hearing on GREEMON’S appeal at the Board’s regularly scheduled meeting on March 12, 2008, the Board recessed for “executive session” where a closed-door meeting, a so-called “executive session,” was held wherein deliberations and comments on the evidence and witnesses were made amongst the Board’s members and by at least one non-member in a setting not open to the public. . Upon return to the, open public meeting, a motion was made “that the city acted in good faith and for just cause,” wherein the Board voted by a margin of 3-2 in favor of the motion affirming BCFD’S decision to terminate GREEMON’S employment.
III. Causes of Action — Appeal and Denial of Due Process
16. In the alternative, GREEMON would also show he was denied his rights to due process under the law on at least the following accounts. First, GREEMON would show that prior to the BOARD publicly voting and rendering its decision, it recessed in a closed-door “executive session” not otherwise open to the public in violation of La.Rev. Stat. 33:2476(M). Second, GREEMON would show that in the closed-door “executive session” one or more persons not members of the BOARD participated in and/or commented on the evidence and witnesses presented to the BOARD in open session.... Upon information and belief, GREEMON alleges there are other violations of his rights evident from the record. Any one of these events would necessarily result in a violation [of] the rights and privileges guaranteeing due process to GREEMON under the law.

In September 2009, Greemon filed a motion for summary judgment on several grounds, specifically alleging that the Board’s action in upholding his termination was voidable because the Board held an executive session without first voting to do so, in violation of the OML.-

After a hearing on the motion for summary judgment, the district court issued a written opinion finding that Greemon had sufficiently alleged a violation of the OML to place the issue before the court, that the Board violated the OML by holding an executive session during its meeting on March 12, 2008, without first voting to, do so, that the action taken by the | ¡¡Board at that meeting was void and that consideration of the merits of Greemon’s remaining allegations was premature. The court rendered judgment remanding the matter to the Board for further proceedings to be conducted in strict adherence with the OML. Bossier City and the Board appeal the judgment.

DISCUSSION

The defendants contend the district court erred in finding that plaintiffs petition alleged sufficient facts to assert a claim under the OML. Defendants argue that plaintiffs action was not timely filed because the petition did not state any material facts to establish an OML violation.

Louisiana utilizes a system of fact pleading, and no technical forms of pleading are required. LSA-C.C.P. art; 854. Liberal rules of pleading prevail and, when .possible, the court should maintain a petition to allow a plaintiff to present his case. S.K. Whitty & Company, Inc. v. Laurence L. Lambert & Associates, 576 So.2d 599 (La.App. 4th Cir.1991), writ denied, 580 So.2d 928 (La.1991). A plaintiff need not set forth every possible theory of recovery, but must plead facts, which if taken as true, state a cause of action; State v. Racetrac Petroleum, Inc., 01-0458 (La.App. 3rd Cir.6/20/01), 790 So.2d 673. Fact pleading advances several goals of" the petition, such as satisfying the constitutional guarantee of due process by providing the defendant with fair notice, limiting the issues before the court, and notifying the defendant of the facts upon which the plaintiff bases his claims. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706.

The state constitution declares that no person shall be denied the right to observe the deliberations of public bodies and examine public documents, |fiexcept in cases established by law. La. Const. Art. 12, Sec. 3. Embodying this guarantee, the Open Meetings Law, LSA-R.S. 42:4.1 et seq, provides that every meeting of any public body shall be open to the public unless closed pursuant to statute. LSA-R.S. 42:5(A). The OML must be liberally construed in favor of assuring that public business is performed in an open and public manner and that citizens are advised of and aware of the performance of public officials and the deliberations and decisions which create public policy. LSA-R.S. 42:4.1; Norris v. Monroe City School Board, 580 So.2d 425 (La.App. 2d Cir.1991).

Before holding a private executive session, a public body must comply with certain notice and procedural rules set forth in LSA-R.S. 42:6, which states in pertinent part:

A public body may hold executive sessions upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42:7, of two-thirds of its constituent members present. An executive session shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42:6.1; however, no final or binding action shall be taken during an executive session. The vote of each member on the question of holding such an executive session and the reason for holding such an executive session shall be recorded and entered into the minutes of the meeting.

LSA-R.S. 42:6.1 allows a public body to hold an executive session pursuant to Section 6 for several reasons, including investigative proceedings regarding allegations of misconduct. Any action taken in violation of the OML shall be voidable by a court of competent jurisdiction. A suit to void any such act must be commenced within 60 days of the act. LSA-R.S. 42:9. This 60-day time limit is peremptive, not prescriptive. Kennedy v. Powell, 401 So.2d 453 (La.App. 2d Cir.), writ denied, 406 So.2d 607 (La.1981). Peremption may not be renounced, interrupted or suspended. LSA-C.C. art. |73461.

In the present case, Greemon alleged in his petition that during a regularly scheduled public meeting, the Board improperly “recessed” for an executive session, which was a closed-door discussion not open to the public, in violation of his rights. Under Louisiana’s liberal rules of fact pleading, Greemion’s allegations provided defendants with sufficient notice that the Open Meetings Law was at issue in this case. Significantly, the defendants’ pleadings opposing Greemon’s petition demonstrate that the defendants were actually aware that the Open Meetings Law was an issue, because both the Board’s April 2008 memo and the City’s response specifically cite LSA-R.S. 42:6.1, which provides the statutory exceptions to the open meeting requirement.

Greemon’s petition challenging the validity of the Board’s recess for an executive session, and the defendants’ pleadings support the district court’s determination that Greemon alleged sufficient facts to place the issue of an Open Meetings Law violation before the court. Based upon this record, the defendants were given fair notice within the 60-day peremptive period that the Open Meetings Law was implicated in this case. The assignments of error lack merit.

The defendants also contend the district court erred in allowing Greemon to join an action to enforce the OML with an appeal of the Board’s decision. Defendants argue that the court was precluded from considering the alleged OML violation because LSA-R.S. 33:2501 limits the court’s review to the issue of whether the Board’s decision was made in good faith for cause.

|8A regular employee in the classified service who feels he has been disciplined without just cause may appeal to the Board for a hearing to determine the reasonableness of the action. LSA-R.S. 33:2501(A). If the employee believes that the Board’s decision is prejudicial, the employee may then appeal to the district court in the parish where the Board is domiciled. LSA-R.S. 33:2501(E)(1); McCoy v. City of Shreveport, 42,662 (La.App.2d Cir.12/5/07), 972 So.2d 1178. This appeal shall be confined to a determination of whether the Board’s decision was made in good faith for cause. LSA-R.S. 33:2501(E)(3).

In the present case, the authority cited by defendants does not support their position that the district court was precluded from considering a claim to enforce the OML because it was included with the appeal of the Board’s decision. The OML was not at issue in either McCoy, supra, or Walsworth v. Municipal Fire & Police Civil Service Bd. of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990). Here, in contrast to the situation in those cases, the issue before the district court was not the merits of the Board’s decision. Rather, the court considered the limited issue of compliance with the OML and voided the Board’s action on procedural grounds, finding that the Board had failed to comply with the OML in holding an executive session.

The Open Meetings Law is not optional. Norris, supra. The statute allows a public body to hold an executive session only after an affirmative vote of two-thirds of members present, and provides that the vote of each member and the reason for holding such an executive session shall be recorded and entered into the meeting minutes. The Board members neither voted nor gave a reason for the executive session at the March 2008 meeting. |3Thus, the record supports the district court’s finding that the Board held an executive session in violation of LSA-R.S. 42:6.

The burden placed on a public body by the statute is minor compared to the substantial interest of citizens in having the people’s business performed in an open and public manner. The express procedure required by the Open Meetings Law is not a “technical” triviality, which may be ignored at the whim of a public body. Therefore, we affirm the district court’s judgment declaring the Board’s action void and remanding the matter for further proceedings' to be conducted in strict adherence with the Open Meetings Law. The assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed. The amount of $121.50 is assessed to. the appellant, City of Bossier City and $121.50 is assessed to the appellant, The Bossier City Municipal Fire and Police Civil Service Board, as appeal costs payable to this court.

AFFIRMED.

GASKINS, J., dissents with written reasons.

GASKINS, J.,

dissenting.

_jjl respectfully dissent -from the majority’s opinion. The defendants contend that the plaintiffs notice of appeal, filed April 11, 2008, did not allege sufficient facts to give notice of an OML violation. Instead the defendants contend that the plaintiff first made an allegation pertaining to the vote to go into executive session in his motion for summary judgment, filed on September 1, 2009, more than 17 months after the Board’s March 200812meeting, by which time the claim was barred pursuant to La. R.S. 42:9, which requires the filing of a suit to void within 60 days of the Board’s action. On the other hand, the plaintiff argues that his general allegations in the notice of appeal were adequate to raise a claim of violation of the OML.

Review of Greemon’s notice of appeal to the district court demonstrates that he failed to properly allege an OML violation. He asserted two possible violations involving Title 33. One alleged a failure to record all interrogation of any fire employee in full; see La. R.S. 33:2181(B)(4), which pertains to fire employees’ rights. The other referenced the requirement that meetings of municipal fire and police civil service boards be open to the public. In asserting that an executive session was held in violation of La. R.S. 33:2476 of the Fire and Police Civil Service Law, Greem-on did not allege a violation of the OML, which specifically allows such sessions. La. R.S. 42:6 and 42:6.1. He also made reference to the possible participation of nonmembers in the executive session. However, no provision of the OML disallows such participation. Finally, he makes a conclusory assertion that there are “other violations of his rights evident from the record.”

Based on the above, I agree with the defendants that Greemon failed to allege any violation of the OML or any facts, which if taken as true, would have established an OML violation in his notice of appeal from the Board’s decision. In view of the fact that the notice of appeal was the only suit filed by Greemon in the 60 days after the meeting and it failed to set forth ^anything that could be construed as raising an OML violation, I cannot find that he timely filed suit to void the Board’s action. Pursuant to La. R.S. 42:9, I would find that his right to do so was perempted long before he filed his motion for summary judgment — in which he did assert OML violations — more than 17 months later.

Additionally, Greemon was present at the Board meeting with his counsel. They made no objection to the manner in which the Board went into executive session. Had such an objection been made contemporaneously, any technical violation of the OML could have been resolved immediately.

In Daigre v. Terrebonne Association for Retarded Citizens, 543 So.2d 1108 (La.App. 1st Cir.1989), writ denied, 548 So.2d 333 (La.1989), the plaintiff sued to void the action of a board terminating him from his position as being in violation of the OML. There were technical violations of the OML, including the failure to record and enter into the minutes the members’ vote on the question of going into an executive session and the reason for holding it. The district court dismissed the plaintiffs suit, finding that the “very technical violations” cited by the plaintiff were “insignificant in view of the fact that the letter of the law is to protect individuals from matters that are not within their knowledge and to give them adequate notice and time to do something about it.” The district court noted that the plaintiff and his attorney were present at the meeting. Agreeing with the district court’s reasons for judgment, the appellate court affirmed, likewise finding that the technical violations cited by the plaintiff did not offer him any grounds for relief under the facts presented. As to the plaintiffs argument that no | ¿showing of prejudice was required and that the OML must be liberally construed to protect the public’s right to observe deliberations of public bodies, the court stated that this argument was “an attempt to bootstrap the noble ideals of the Open Meetings Law ... to plaintiffs own natural desire to minimize his loss after he was terminated from employment by defendant.”

See and compare Courvelle v. Louisiana Recreational and Used Motor Vehicle Commission, 2008-0952 (La.App. 1st Cir.6/19/09), 21 So.3d 340, wherein the appellate court found no prejudice to the plaintiffs when a vote to go into executive session was merely recorded as unanimous on a voice vote. In that case, the court also relied upon the participation of the plaintiffs at the meeting and their failure to object to the manner in which the vote was carried out.

Based on the above, I would reverse, finding that the district court erred in declaring the Board’s actions void due to an OML violation.

      . This allegation is omitted from the majority's recitation of paragraph 16 of Greemon's notice of appeal.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Rodney MASON, Jr.
    No. 10-KA-284.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Thomas F. Daley, District Attorney, Or-enthal J. Jasmin, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
    Frederick J. Kroenke, Jr., Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

I ¡(Defendant, Rodney Mason, Jr., was convicted of one count of armed robbery in violation of LSA-R.S. 14:64 (count one), and one count of attempted armed robbery in violation of LSA-R.S. 14:27 and LSA-R.S. 14:64 (count two). After the denial of defendant’s motion for post-verdict judgment of, acquittal and/or new trial, he was sentenced to 55 years imprisonment with the Department of Corrections for his armed robbery conviction and to 50 years imprisonment for his attempted armed robbery conviction. His sentences were ordered to run concurrently with each other. The trial court also noted that the sentence would be without benefit of parole, probation, or suspension of sentence. Defendant’s appeal follows.

The facts adduced at trial proved that on July 6, 2006, Detective Will Stélly of the St. John the Baptist Parish Sheriffs Office responded to a call, which was received at approximately 9:24 p.m., that two subjects, one carrying a shotgun and the other carrying a handgun, robbed the Ole Tyme Saver on Carrollwood in |sLaPlace. Approximately $200.00 in cash was taken from the store’s cashier.

Deputy Jose Rel of the St. John the Baptist Parish Sheriffs Office had also responded to the call. When he arrived, he spoke with the cashier, Phuoc Pham. She advised him that two black males entered the store armed with a handgun and a shotgun. He was advised that both appeared to be wearing long-sleeve white shirts with some type of covering over their faces and heads. One of the suspects was wearing blue jean shorts and the other long pants. Deputy Rel reviewed surveillance videotapes from the store and determined that a white SUV had pulled up in front of the store, pulled off, and then returned. He stated that at first he thought the vehicle was an Expedition, but it was later determined to be an Explorer. He explained that the vehicle had a tannish or golden bottom and had chrome rims.

Once Detective Stelly arrived,' he reviewed the five surveillance videotapes and was able to observe a white Ford Explorer with chrome rims. As such, a bulletin of the vehicle’s description was dispatched. Detective Stelly knew, they were looking for three subjects. He testified that one videotape showed that the driver of the vehicle pulled up and got out. He then entered the store, looked around, and purchased beer. After returning to the vehicle, the driver then backed up, pulled up even with the door, and stopped for ■ a couple of seconds. Detective Stelly noticed in the tape that someone was seated behind the driver. The second videotape showed the vehicle pulling up. The vehicle was light-colored and the chrome rims could be observed in the vehicle’s reflection. The vehicle then went out of the camera’s view. Detective Stelly explained that by means of investigation, it was discovered that the vehicle was parked next door to the store. The videotape also showed the suspects exiting the store and running in the same direction. Detective Stelly explained that one robber could be seen in another |4videotape by the cash register, wearing a thermal-type long john shirt. The second armed suspect with the long-sleeve black shirt wrapped around his head was seen in another videotape. The customer who called 9-1-1 on his cell was seen in the final videotape.

While patrolling, Deputy Jared Vicknair of the St. John the Baptist Sheriff’s Office received the description of the vehicle involved in the robbery. He testified that based on the vehicle’s description, he “had good knowledge of who the subjects might be in the vehicle.” At 9:55 p.m., approximately 31 minutes after the robbery, a vehicle that matched the description of the vehicle involved in the robbery — a white Explorer with tan on its bottom — was located by Deputy Vicknair in Garyville. Deputy Vicknair got im front of the vehicle and another deputy got behind the vehicle. Deputy Vicknair activated his top lights and his take-down lights. When the deputy attempted to conduct a traffic stop, two suspects exited the backseat from the passenger side of the vehicle and fled into a wooded area. One of the suspects had a white shirt with blue jeans and the other was wearing a white shirt with blue .jean shorts. One of the subjects was observed carrying a shotgun. The driver of the vehicle was detained. Detective Stelly testified that the driver of the vehicle who was arrested was the same person that was seen on the videotape getting out of the vehicle and walking into the store prior to the robbery. A search of the area was conducted for the two other subjects. However, they were not located that evening. The vehicle was towed. •

On the following day, a search warrant for the vehicle was obtained and was executed. Crime Scene Investigator Kirt Tregre lifted ten latent fingerprints from various locations on the vehicle. Some fingerprints were lifted from the rear driver’s side door. Rebecca Alexander, an expert in latent fingerprint analysis, examined the ten latent fingerprints that were presented to her. She compared |Bthese fingerprints to defendant’s fingerprint card. Fingerprints from the exterior side of the back driver’s side door taken from the vehicle were identified as defendant’s fingerprints. The fingerprints matched defendant’s left ring finger. Ms. Alexander explained that no two fingerprints are alike.

Further, items of interest were recovered from inside of the vehicle on the back passenger seat: a white, long-sleeve, long john shirt; a short-sleeve dark blue t-shirt with white lettering on it; and a long-sleeve black pullover that was consistent with what one of the robbers used to conceal his identity. No firearms were found in the vehicle.

Detective Stelly testified that the white shirt that was recovered from the vehicle was consistent with the shirt seen in the videotape.' He stated that the blue short-sleeve shirt'that was recovered was consistent with the garment that was seen in the videotape that was wrapped around the cash register robber’s head. He testified that the black long-sleeve shirt was seen in a videotape as well.

The testimony at trial does not reveal the details of how the other two suspects were arrested. However, Detective Stelly testified that there were three suspects and three arrests were made in this case. After defendant was arrested, a search warrant was obtained for his DNA. Two buccal swabs were taken and some of his hair was plucked. These were sent to' the Crime Lab for analysis. Alison Saadi, an expert in the field of DNA analysis, testified that she compared the reference DNA samples from defendant to DNA profiles obtained from the clothing evidence. She explained that State’s Exhibit 7, the Levi’s short-sleeve shirt was tested for DNA and there was a DNA mixture from two different people found on the shirt. Defendant could not be excluded as being the major contributor in this sample. Ms. Saadi explained that 96.5 percent of the population could be excluded as contributing this profile, but defendant could not be excluded. Further, La white long john shirt was swabbed and DNA was found that was consistent with defendant’s reference sample. Ms. Saadi explained that the probability of finding the exact DNA profile in the population other than defendant would be one in 1.64 trillion. She testified that the world’s population was only' approximately six billion.

Ms. Pham, an owner of the Old Tyme Saver and a victim who was robbed when working at the cash register, testified that on July 6, 2006, two men came into the store and one of them put a gun to her head and demanded money. She gave the robber all of the money in the cash register. She explained that she did not see their faces because they were covered with something. She said that the other subject put the “long” weapon on the customer that was in the store.

Daniel Madere testified that on the night of July 6, 2006, he stopped at a convenience store and while he was there two black males entered the store with guns. He testified that one of the subjects had a shotgun with a barrel that had been “kind of sawed off’ and tried to rob him. The subject told him to give him his money or'Wallet. Mr. Madere told the subject “no,” and the subject walked away. Nothing was taken from Mr. Madere. He also saw the other subject at the cash register with a handgun. Mr. Madere testified that this subject was telling the cashier to give him the money and he said the cashier complied. He did not see their faces because they had a black “T-shirt or something” wrapped around their faces. He called 9-1-1.

Defendant’s mother, Stephanie Davis, was the sole defense witness to testify. She testified that her son’s cousin owned a white and tan SUV and her son was with him at times. She said that there was a party on July 6, 2006, for a family member. She testified that her son’s cousin left the party in the SUV without her son, and that she left the party before her son left.

|7In his first allegation of error, defendant alleges that the evidence was insufficient to find him guilty. Defendant argues that identity is an essential element of the crimes and that the State failed to prove he was involved in the crimes.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The evidence may be either direct or circumstantial. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). The reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Harris, 07-124, p. 10 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 194.

To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another by use of force or intimidation while armed with a dangerous weapon. State v. Thomas, 08-813, p. 6 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606, writ denied, 09-1294 (La.4/5/10), 31 So.3d 361 (citing LSA-R.S. 14:64(A); State v. Ragas, 07-3, p. 7 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 271, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, — U.S. -, 129 S.Ct. 55, 172 |sL.Ed.2d 56 (2008)). A gun used in connection with, and at the scene of a robbery, is as a matter of law a dangerous weapon. Thomas, supra.

An attempt occurs when the offender, having the specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object. State v. Robinson, 07-832, pp. 15-16 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 867, writ denied, 08-1086 (La.12/19/08), 996 So.2d 1132 (quotation omitted). See also LSA-R.S. 14:27.

Property that is taken is considered under the victim’s control when the victim could have prevented the taking had he not been subjected to the .robber’s violence or intimidation. State v. Martin, 07-1035, p. 6 (La.App. 5 Cir. 10/28/08), 996 So.2d 1157, 1160 (citing State v. Mason, 403 So.2d 701, 704 (La.1981)). The State need not prove that the property taken was owned by the victim, but only that the accused was not the owner and the victim had a greater right to the item than the accused. Martin, supra. Furthermore, the act of pointing a gun at a victim is sufficient to prove the element of force or intimidation for purposes of armed robbery. Id.

Nothing was taken from Mr. Madere and it appears that the evidence presented reflected that defendant would have been the subject that was demanding money from the cash register. Nevertheless, a defendant need not personally take anything from a victim during the armed robbery, a person need not hold the weapon or perform the taking to be guilty of armed robbery under the law of principals. See State v. Butler, 07-1034, pp. 9-10 (La.App. 5 Cir. 10/28/08), 997 So.2d 631, 637, unit denied, 09-0212 (La.10/30/09), 21 So.3d 276! Under LSA-R.S. 14:24, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to |9commit the crime, are principals.” Only those persons who “knowingly participate in planning or execution of. a crime” are principals to that crime. State v. King, 06-554, pp. 7-8 (La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600 (quotation omitted). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. King, supra. The mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. Id. However, it is sufficient encouragement that the accomplice is standing by at the crime scene ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s, intention. State v. Anderson, 97-1801, p. 3 (La.2/6/98), 707 So.2d 1223, 1225 (per curiam) (quotation omitted).

In addition to proving the statutory elements of the charged offense at trial, the State is Required to prove defendant’s identity as the perpetrator. State v. Draughn, 05-1825, p. 8 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, but rather contends the State failed to prove beyond a reasonable doubt his identity as the perpetrator. Because defendant does not challenge the statutory elements of armed robbery or attempted armed robbery, the sufficiency of the evidence with respect to the statutory elements will 1 innot be addressed . See State v. Duncan, 09-232, pp. 8-9 (La.App. 5 Cir. 11/10/09), 28 So.3d 410, 415-16; State v. Weather spoon, 06-539, pp. 5-6 (La.App. 5 Cir. 12/12/06), 948 So.2d 215, 220, unit denied, 2007-0462 (La.10/12/07), 965 So.2d 398.

In the present case, the witnesses did not see the faces of the perpetrators because their faces and heads were covered. As such, the State was required to show other evidence that defendant was somehow linked to the crimes committed at the store. We find that the State presented sufficient evidence to prove defendant was the person who committed these crimes beyond reasonable doubt.

The crimes in this case were actually captured by the store’s five surveillance cameras. By viewing the videotapes at trial, the jury was allowed to observe the robbery and attempted robbery themselves. In fact, the videotape closest to the cash register was capable of capturing sound. As such, the jury heard for themselves the demands made by the robber for the money in the cash register. Although the jury was also not able to view the perpetrators’ faces because they were covered, the videotapes did show the vehicle that was used in the commission of the crimes. The videotapes also showed the weapons used and the clothing worn by the perpetrators. After the bulletin of the vehicle of interest was dispatched, a vehicle matching this description was located. This vehicle was located in nearby Gary-ville, only 31 minutes after the robbery, which happened in LaPlace.

The vehicle was stopped, and two of the three passengers fled, one carrying a shotgun. Also one of the passengers that fled was wearing blue jeans and the |nother was wearing blue jean shorts. The jury was aware that a shotgun was involved in the perpetration of the crimes and that one of the suspects had on blue jean shorts, while the other was wearing long pants. The driver of the vehicle was apprehended, and the vehicle was searched after a search warrant was obtained. . Although the two individuals who fled were not found that night, evidence was left behind in the vehicle and was discovered during the search. Besides the vehicle matching the description of the vehicle involved in the robbery, clothing was discovered in the vehicle that matched the clothing worn by the perpetrators and used to hide their faces during the robbery.

Detective Stelly testified that the man seen in the videotape getting out of the vehicle and walking into the store 18 minutes before the robbery was the driver of the vehicle that was arrested in Garyville. Detective Stelly also identified a white waffle type shirt that was recovered from the vehicle. He explained that it was consistent with the shirt worn by the robber in the video. He also identified a blue short-sleeved shirt that was found in the vehicle that was consistent with the garment seen in the video that was wrapped around the robber’s head when he was at the cash register with the handgun. These same two exhibits were tested for DNA.

An expert in DNA analysis determined that the white long john shirt contained a DNA profile that was consistent with defendant’s. She explained that the probability of finding the exact DNA profile in the population, other than defendant, would be 1 in 1.64 trillion. Further, the short-sleeve Levi’s shirt was tested, for DNA and it was concluded that there was a mixture of DNA. The expert explained that defendant could not be excluded as being a major contributor to this sample and that 96.5 percent of the population could be excluded. Therefore the clothing found in the vehicle that was linked to defendant matched the clothing [ 12worn by the robber who demanded money while standing by the cash register. Furthermore, evidence was presented that the other perpetrator had a long-sleeve black shirt wrapped around his-head. A black long-sleeve pullover was also found in the back passenger seat of the vehicle.

Although this: Court is able to view the clothing worn- by the perpetrators by reviewing the videotapes and is able to review testimony that describes the clothing that was actually recovered from the vehicle, the jury- was able to view the actual clothing that'was-found in the vehicle and that was tested for DNA when the clothing was admitted as evidence at the trial. Because they also reviewed the videotapes, the jury was able to compare the clothing observed during the robbery and attempted robbery with that clothing recovered from the vehicle. In addition, defendant’s fingerprints were found on the exterior of the vehicle’s backseat, driver’s side door. The perpetrator who robbed the cashier exited from this door of the vehicle.

We conclude that the evidence of defendant’s identity as a perpetrator of the crimes negated any possibility of misiden-tifieation. We find no merit to defendant’s claim that the State presented insufficient evidence to sustain his conviction beyond a reasonable doubt.

In his second assignment of error, defendant argues -his sentences were unconstitutionally excessive because he was only 18 years old at the time of the offense and no evidence was presented that he wielded -a gun, actively participated in the crime, or that he was even present.

Defendant did not file a motion to reconsider sentence in the trial court. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. Ragas, 07-3 at 10, 960 So.2d at 272; see also LSA-jC.Cr.P.13 art. 881.1. As such, defendant is limited to a review of his sentence for constitutional excessiveness only.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. War-mack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104,109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id,, 07-311 at 7-8, 973 So.2d at 109.

In considering whether the sentencing court abused its discretion, the reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular ease. Therefore, the trial judge is given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16.

The offense of armed robbery carries a sentencing range of not less than ten years and not more than 99 years, without benefit of parole, probation or 114suspension of sentence. LSA-R.S. 14:64(B). Defendant was sentenced to 55 years imprisonment for armed robbery.

In the present case, on July 13, 2009, prior to sentencing, the trial judge indicated that a Pre-Sentence Investigation (PSI) was completed and that guidelines were taken into account. The court found that there was an undue risk that during the period of a suspended sentence of probation that defendant would commit another crime, that defendant was in need of correctional treatment that could be provided most effectively by his commitment, and that a lesser sentence would deprecate the seriousness of defendant’s crime. The court considered the nature of the crime and noted that a weapon was used, that there was a threat or actual violence in the commission of the crime, and that multiple victims were present at the scene. The court considered the record and the PSI, and then sentenced defendant to 55 years imprisonment on the armed robbery conviction and 50 years imprisonment on the attempted armed robbery conviction. The court ordered that the sentences run concurrently with one another. The judge also noted that “the statute” provided that the imposition be without benefit of parole, probation, or suspension of sentence.

The Louisiana Supreme Court has stated that sentences of 35 to 50 years were found to be acceptable for first offenders convicted of armed robbery. State v. Duncan, 09-232, p. 11 (La.App. 5 Cir. 11/10/09), 28 So.3d 410, 417 (citing State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4).

Here, the trial court had the benefit of considering a PSI that was prepared in this matter. However, the PSI was not included with the record. A fingerprint card used to compare defendant’s fingerprints to the fingerprints lifted from the vehicle was presented at trial as State’s Exhibit 12. This fingerprint card appears to reflect that defendant was arrested on March 1, 2006, for attempted second | ifidegree murder, aggravated assault, and illegal use of weapons/dangerous instru-mentalities. Further, the record reflects that after defendant’s sentences were imposed, the State nolle prossed four other matters: case numbers 08-15, 06-115, 07-562, and 07-182. A trial judge is not limited to considering only prior convictions and may review all evidence of prior criminal activity, including evidence of pri- or arrest records and of uncharged offenses or offenses that were nolle prossed. State v. Monk, 42,067, p. 3 (La.App. 2 Cir. 5/2/07), 956 So.2d 185, 188.

The evidence presented shows that defendant is not someone who has no criminal history. Nevertheless, even sentences above the minimum for first armed robbery offenders have been upheld in this circuit. State v. Lee, 09-37, p. 8 (La.App. 5 Cir. 5/12/09), 15 So.3d 229, 234. For example, in State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, unit denied, 05-1740 (La.2/10/06), 924 So.2d 162, a 19-year-old defendant received concurrent 60-year sentences for two armed robberies. This Court upheld the sentences as not constitutionally excessive.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Warmack, 07-311 at 8, 973 So.2d at 109. Armed robbery is a most serious crime and should be dealt with very sternly. Lee, 09-37 at 9, 15 So.3d at 234. This incident involved more than one victim and the opportunity that other customers could have entered the store while the robbery was in progress. It is apparent that a firearm was used in the commission of the robbery of the cashier. However, defendant was not charged with the additional penalty pursuant to LSA-R.S. 14:64.3(A), which provides for an additional penalty when the dangerous weapon used in the commission of an armed robbery is a firearm. , Nevertheless, this Court has | ^recognized that an armed robbery with a firearm is a . more serious form of armed robbery for which the penalty range is effectively. 15 to 104 years. State v. George, 09-886 p. 17 (La.App. 5 Cir. 3/23/10), 39 So.3d 671, 682. This Court has further recognized that during an armed robbery or an attempted armed robbery, when firearms are involved, the victims were placed in -very grave danger and could have easily been killed. See State v. Robinson, supra, 07-832 at 10, 984 So.2d at 869.

We find that defendant’s 55-year sentence for armed robbery is not excessive under the circumstances of this case. The trial court did not abuse its discretion in sentencing defendant to just over half of the maximum sentence allowed for armed robbery.

Defendant also was sentenced, to 50 years for the attempted armed robbery conviction. Defendant’s argument focuses on the excessiveness of the longer 55-year sentence and not the 50-year sentence was ordered to be served concurrent with. The 50-year attempted armed robbery sentence is illegal and beyond the maximum term of imprisonment allowed under the statutes. See LSA-R.S. 14:64; R.S. 14:27. Accordingly, any further discussion regarding the excessiveness of this sentence is moot.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following which warrant our attention.

In the present case, the offense of armed robbery carries a sentencing range of not less than ten years and not more than 99 years, without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:64(B). The attempt provision provides in pertinent part that the defendant shall be fined or imprisoned in the same manner as for the offense attempted, and such imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense so 117attempted. LSA-R.S. 14:27(D)(3). Thus, in this case, the maximum sentence to which defendant could be sentenced for armed robbery was 99 years and for attempted armed robbery was 49 1/2 years. However, defendant was sentenced to 50 years imprisonment for attempted armed robbery.

Pursuant to LSA-C.Cr.P. art. 882, an appellate court can correct an illegal sentence at any time. However, an appellate court is authorized to correct an illegal sentence when the exercise of sentencing discretion is not involved. State v. Durar pan, 01-511 (La.App. 5 Cir. 10/30/01), 800 So.2d 1052, 1054. Therefore, we vacate the 50 year sentence for attempted armed robbery and we remand the matter to the district court for resentencing pursuant to the statutes. See State v. Ross, 09^131, pp. 25-26 (La.App. 5 Cir. 11/24/09), 28 So.3d 475, 489-90 (where the matter was remanded for resentencing after the defendant received illegal sentences above the maximum term of imprisonment allowed under LSA-R.S. 14:81).

Considering the foregoing, defendant’s convictions are affirmed. Defendant’s 55 year sentence for armed robbery is also affirmed. Defendant’s 50 year sentence for attempted armed robbery is vacated and this matter is remanded for resentenc-ing in accordance with the views expressed in this opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

      . Our review of the record reflects that the State presented sufficient evidence to establish the essential statutory elements of the offenses through testimony and by means of the videotapes presented at trial.

      . Judicial notice is governed by LSA-C.E. art. 201. This Court has previously recognized that the jurisprudence shows that courts have taken judicial notice of geographical distances. See State v. Young, 04-1318, p. 8 (La.App. 5 Cir. 4/26/05), 902 So.2d 461, 466 n. 6.

      . According to LSA-C.Cr.P. art. 881.1(E), the "[Qailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”