source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    ACTIVE SOLUTIONS, L.L.C. and Southern Electronics Supply, Inc. v. DELL, INC., Thomas H. Welch, Jr., and Steve Reneker.
    No. 2010-CA-1590.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 2011.
    Rehearing Denied Aug. 17, 2011.

      Gladstone N. Jones III, Lynn E. Swanson, Catherine E. Lasky, Paul H. Villalo-bos, Jones Swanson Huddell & Garrison, L.L.C., James M. Garner, Timothy B. Francis, Sharonda R. Williams, Amanda Russo Schenck, Mary Beth Akin, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., Harry T. Lemmon, Pascal F. Ca-logero, Jr., Pascal F. Calogero, Jr., APLC, New Orleans, LA, for Plaintiffs/Appellants, Active Solutions, L.L.C. and Southern Electronics Supply, Inc.
    Randall A. Smith, J. Geoffrey Ormsby, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellant, Greg Meffert.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ,The defendant-appellant, Greg Meffert, appeals a judgment dated April 7, 2010, and, more particularly, that portion of the judgment denying his motion for JNOV. We affirm.

Plaintiffs-appellees, Southern Electronic Supply, Inc. (“Southern”) and Active Solutions, L.L.C. (“Active Solutions”) describe themselves as business collaborators who developed and marketed to the City of New Orleans (“City”) a “crime camera” system designed to provide real time surveillance of the areas where the cameras were installed. They claim that the many defendants enumerated hereinafter, all of whom had connections with the City of New Orleans, or were persons or entities having associations with such persons, were liable to them for many millions of dollars in damages sustained by the plaintiffs’ crime camera business in consequence of the tortious actions of the defendants. Chief among such malefactors of whom the plaintiffs complain is the appellant, Greg Meffert.

Meffert does not present his version of the facts, preferring to confine his appeal to arguments of law.

|2The trial court’s written reasons for judgment issued in connection with the judgment of April 7, 2010, does not get into in depth fact finding detail, limiting the fact findings to little more than the following:

Plaintiff contends that the City, through its employees and/or subcontractors, assisted and facilitated Dell’s sale of crime cameras supplied by Net-Methods and Veracent to Baton Rouge and Gretna, Louisiana and its purchase of crime cameras from Dell in May of 2006. However, the evidence at trial shows that defendant, Greg Meffert, while still employed by the City and responsible for overseeing plaintiffs contract, initiated Dell and Veracent’s sale of crime cameras to the City by informing Dell that the City wanted a “bunch of cameras” but did not “want to use the last vendor”. (Plaintiffs’ Exhibit 37) The jury found Meffert’s actions constituted intentional misconduct. The evidence shows that Meffert had an independent personal stake in the crime camera sales to New Orleans and other cities, and played a pivotal role in assisting Veracent and NetMethods. His actions were clearly outside the scope of his employment with the City.
Further, there is no evidence that Anthony Jones or Mark Kurt, as Chief Technology Officers in the Mayor’s Office of Technology, knowingly assisted or participated in a scheme with Mef-fert. Therefore, the Court does not find solidary liability between the City, Mef-fert, Veracent and Dell.

The plaintiffs present the following version of the facts giving rise to their claims:

As part of the effort to market the cameras to the City, the plaintiffs implemented a pilot crime camera program in 2003 that was overseen by Meffert. At the time, Meffert was serving in the Mayor’s Office of Technology in the capacity of Chief Technology Officer (“CTO”). Meffert was the CTO for the City from 2002 to 2006. As the City’s CTO, Meffert was responsible for all technology-related projects for the City, including the negotiation and oversight of the City’s Contract with the plaintiffs.

IsUpon the successful completion of the pilot program, the plaintiffs engaged in the bidding process required by law, in which the plaintiffs emerged as the successful bidders. The bidding process included a Request for Proposal in 2004 for the manufacture and installation of crime cameras, and a Response to Request for Proposal. In consequence of having submitted the winning bid proposal, the plaintiffs entered into a contract (“Contract”) with the City executed by Mayor Ray Nagin. The Contract had two major provisions pertinent to plaintiffs’ claims: (1) a requirement that the City order a minimum of 240 cameras over a three-year period, and (2) a prohibition preventing the City and/or its representatives/employees from disclosing confidential information regarding the plaintiffs’ proprietary System.

During the duration of the pilot program and throughout the negotiation and execution of the Contract, defendants, Mark St. Pierre, Christopher Drake, and Michael Charbonnet, who worked at Meffert’s direction, were assigned to manage the plaintiffs’ Contract with the City. Thus, Meffert, St. Pierre, and Drake all learned confidential information concerning plaintiffs’ System and were bound by the confidentiality provisions of the Contract in their official capacities as employees of the Mayor’s Office of Technology.

Around this time, St. Pierre was a member and/or founder of several private business entities, including Imagine Software, L.L.C., NetMethods, L.L.C., and Veracent L.L.C. The plaintiffs contend that these entities were staffed by the same individuals who were working at the Mayor’s Office of Technology.

|4In July of 2004, Meffert’s office facilitated a meeting between the plaintiffs and Dell, which occurred at the Mayor’s Office of Technology office located at 1515 Poy-dras Street in New Orleans. The meeting resulted in a preliminary understanding between the plaintiffs and Dell regarding Dell’s future collaboration with the plaintiffs to market the plaintiffs’ proprietary “System” nationally and even internationally. After the meeting, Dell and the plaintiffs signed non-disclosure agreements that protected the plaintiffs’ confidential information, and the use of that information was permitted “only for the purpose of and in connection with the Parties’ business relationship.” After the meeting, Drake forwarded to Dell confidential information regarding the proprietary design and underlying costs of the plaintiffs’ System.

The future collaboration between Dell and plaintiffs discussed at the meeting facilitated by Meffert’s office never came to fruition. Instead, Meffert assembled a group of persons (referred to by the plaintiffs as “the Dell team”) to develop, independently of the plaintiffs, cameras and other components of the plaintiffs’ proprietary System, which were then sold to the City through Dell, cutting plaintiffs out of the chain of sale. Plaintiffs assert that NetMethods was formed by St. Pierre for the express purpose of providing Dell with a product identical to that of the plaintiffs based on information obtained from the plaintiffs on a confidential basis.

In late 2005 and early 2006, NetMethods began to manufacture and sell video surveillance systems to Dell that were the same in form and function as those of the plaintiffs. In 2006, Dell and NetMethods sold such video surveillance systems to New Orleans and Baton Rouge. By representing NetMethods as the vendor responsible for New Orleans’ successful “crime camera” system, ^NetMethods and Dell made the sales to Baton Rouge, Lafayette, and Gretna, Louisiana. These were all sales that the plaintiffs claim rightfully belonged to them. The plaintiffs contend that it was at this stage that the Dell Team, with Meffert’s assistance, then directed its efforts toward muscling in on the New Orleans surveillance camera business, which was still under contract to the plaintiffs.

The plaintiffs’ brief goes on to contend that virtually from the inception of the Contract, Meffert tortiously acted in myriad ways that interfered with Plaintiffs’ contractual relationship with the City. According to the plaintiffs, as early as seven days after the plaintiffs received the first deposit to begin work under the Contract, Meffert began to take steps to sabotage the plaintiffs’ reputation and Contract with the City. According to the plaintiffs, Mef-fert deliberately and falsely disparaged the quality of the plaintiffs’ work performance.

The plaintiffs characterized the testimony of Drake, who was the project manager and an employee of Imagine and Veracent, as expressing bewilderment at Meffert’s complaints because just seven days earlier Meffert was touting the plaintiffs’ System as revolutionary. A few months later, in November of 2004, Meffert instructed Drake to prepare an anticipatory breach letter to plaintiffs based on the fact that the plaintiffs had provided only ten of the sixteen cameras they were obligated by the Contract to provide by December 20, 2004.

In the anticipatory breach letter, Mef-fert admonished the plaintiffs as follows: “If you cannot meet the obligations of the [Cjontract ..., the City will be forced to seek other remedies.” The plaintiffs note that the anticipated breach of which they were admonished never materialized because, before the December 20 | r,deadline, plaintiffs had installed 25 cameras, thereby exceeding the dictates of the Contract by more than 150 percent.

Despite the plaintiffs’ compliance with the Contract, Meffert facilitated the purchases of cameras from Dell and Veracent (referred to by the plaintiffs as “co-eon-spirators”) in a number of ways. By way of example, the plaintiffs contend that the evidence supports a finding that Meffert ensured that Dell and Veracent were paid for the cameras they provided to the City, but withheld payment from the plaintiffs. In fact, at the same time that the plaintiffs were being told that “funding for new deployments is not final,” the plaintiffs allege that Meffert was telling Dell that the budgets contained plenty of money to cover the City’s cameras purchased from Dell and Veracent. Meffert also told Dell employee, Kim Fury, that he would pull the City’s crime camera Contract “from the street” for Dell, i.e., he would arrange to have the Contract taken away from the plaintiffs and given to Dell. Thus, Mef-fert, who was still employed by the City and responsible for overseeing the City’s Contract with the plaintiffs, regularly acted improperly as the plaintiffs’ competitor, thereby tortiously interfering with Plaintiffs’ Contract with the City.

The plaintiffs offered a second example of Meffert’s malfeasance: Meffert steered business away from the plaintiffs and directed some $10 million worth of business to St. Pierre’s companies, all during his tenure as CTO. Meffert also actively contributed to the success of NetMethods and the other St. Pierre companies, including Veracent, through marketing, promotion of products, and referrals. Specifically, in May of 2006, Meffert facilitated Dell and Veracent’s sale of video surveillance systems to the City by informing Dell that the City wanted a “bunch of cameras,” but did not “want to use the last vendors,” the last vendors l7being the plaintiffs, despite the plaintiffs’ valid Contract with the City and plaintiffs’ contracts with Dell. Meffert told Dell to contact St. Pierre about cameras, knowing that employees of St. Pierre’s companies would both supply the cameras to Dell and purchase those same items from Dell on behalf of the City. Meffert also received and responded to sales calls from other cities interested in purchasing the video surveillance systems. According to Meffert’s own attorney, Meffert was responsible for $10 million dollars earned by NetMethods.

In exchange for these services, Meffert personally benefitted from the sales of cameras by St. Pierre’s companies to the City and others. Initially, while Meffert was still employed by the City, NetMeth-ods issued an American Express card to Meffert and paid for more than $130,000 worth of purchases and services charged to that card. While employed as CTO for the City, Meffert also discussed going into business with St. Pierre after leaving his employment with the City.

When Meffert finally terminated his employment with the City, he formed a company called Logistix, which shared office space with the St. Pierre companies and entered into a two-year agreement with NetMethods that obligated NetMethods to pay Logistix $67,000 a month for advising, consulting, and support services. Net-Methods ultimately paid Logistix more than $573,000.

However, none of these precise details is critical to the disposition of this appeal as the appellant has chosen to pursue his appeal on legal rather than factual grounds. He assigns no error as to either the explicit or the implicit fact findings of the trial court. Accordingly, the facts according to the plaintiffs as set forth above are intended to serve as background for this case and do not represent the conclusive findings of this Court, although it must be noted that those facts are essentially undisputed by Meffert.

[ 8The plaintiffs initiated legal proceedings in the trial court on April 29, 2007, by filing suit for breach of contract, unfair trade practices, unjust enrichment and tor-tious interference with a contract, all in connection with the July 19, 2004 Contract between the City and Southern to provide surveillance equipment, technology and design as well as installation of “crime cameras” as part of what was referred to as the “City Wide Surveillance Camera Project.” The petition named as defendants Dell, Inc., Thomas H. Welch, Jr., and Steve Reneker

The claims in the plaintiffs’ initial petition focused on alleged violations of a July 20, 2004 Non-Disclosure Agreement executed by and between Active Solutions and Dell and a July 21, 2004 Non-Disclosure Agreement executed by and between Southern Electronics and Dell.

The plaintiffs filed a First Amended and Supplemental Petition on April 30, 2007, naming as additional defendants the following: Imagine Software, L.L.C.; Imagine Consulting, L.L.C.; Imagine GIS, L.L.C.; NetMethods, L.L.C.; Method Investments, L.L.C.; Ciber, Inc.; and Vera-cent, L.L.C. Like the plaintiffs’ original petition, their First Amended and Supplemental Petition focused on alleged violations of the Non-Disclosure Agreements.

On October 4, 2007, the plaintiffs filed a Second Amended and Supplemental Petition for Damages, naming as additional defendants the following: Affiliated International Corporation; Affiliated Computer Services Inc.; the City of New Orleans; Mayor Nagin; Mark Kurt, Mark St. Pierre, Christopher Drake, and Gregory Meffert, the appellant herein. The Second Amended and Supplemental petition noted that Mark Kurt succeeded Meffert as CTO in 2006 and that Christopher Drake was the Operations Manager for the Mayor’s Office of Technology.

|9The plaintiffs Second Amended and Supplemental Petition went beyond the allegations contained in their previously filed petitions which were limited to certain Non-Disclosure Agreements, by adding additional claims concerning the plaintiffs’ Contract with the City to furnish a minimum of 240 surveillance cameras.

This Second Amended and Supplemental Petition referred to Messrs. Nagin, Mef-fert, Kurt, St. Pierre and Drake collectively as the “City Employee Defendants”, alleging that they were all associated with the various “Imagine” defendants originally named above in the First Amended and Supplemental Petition, either in the capacity of owner, manager, consultant or supervisor. The plaintiffs alleged that in these various capacities the City Employee Defendants sought to profit improperly from their connections with the City and from the appropriation to their own advantage of the plaintiffs’ efforts expertise and trade secrets.

On March 24, 2008, the plaintiffs filed a Third Amended and Supplemental Petition for Damages in which they alleged, among other things, that the City Employee Defendants improperly created entities to compete with the plaintiffs when the plaintiffs refused to give them subcontracting work on the Contract that the plaintiffs had with the City. The plaintiffs also alleged that Dell and the City Employee Defendants improperly appropriated and capitalized on the plaintiffs’ proprietary information, expertise and trade secrets.

On August 24, 2008, the plaintiffs filed a Fourth Amended and Supplemental Petition for Damages in which they essentially elaborated on the bad acts of the defendants as set forth in previous petitions.

|10On October 8, 2008, the plaintiffs filed a Fifth Amended and Supplemental Petition for Damages essentially elaborating on the alleged bad acts of defendant Drake and making allegations of loss of business opportunities.

On September 11, 2009, Camsoft Data Systems, Inc. (“Camsoft”) filed a Petition for Intervention naming the plaintiffs as defendants based on allegations that Cam-soft has an interest in the outcome of the case based on a joint venture with the plaintiffs. This petition for intervention was dismissed without prejudice.

On September 16, 2009, Camsoft filed a First Supplemental and Amended Petition for Intervention setting forth at great length and with much greater specificity the facts upon which it alleged it has a claim to all or part of the plaintiffs’ claims.

On the following day the trial court signed an Order granting the motion in limine of NetMethods, L.L.C., Method Investments, L.L.C., and Veracent, L.L.C. to exclude references to the federal criminal investigation, being the same criminal investigation that led to the St. Pierre trial and conviction referred to in footnote number 1 of this Opinion, commencing on page 3 above.

On October 28, 2009, the plaintiffs’ claims against CIBER, Inc. were dismissed with prejudice based on a joint motion arising out of a settlement agreement reached between the parties.

After countless procedural steps that are not pertinent to this appeal, the plaintiffs’ claims against Dell, Inc., NetMeth-ods, L.L.C., Veracent, L.L.C., Imagine Software, L.L.C. and Gregory Meffert were eventually tried to a jury in a lengthy bifurcated trial extending over the course of five weeks, commencing on September 14, 2009. The plaintiffs’ claims against the City were tried at the same time to the trial judge as part of those bifurcated proceedings.

|uOn October 22, 2009 Active Solutions and Southern Electronics filed a Motion for New Trial on Conspiracy to Misappropriate Trade Secrets Claim Against Greg Meffert.

The jury verdict which Mr. Meffert seeks to have overturned with this appeal of the denial of his JNOV motion, was rendered on November 2, 2009, pursuant to the bifurcated trial held on September 14, 2009. In accordance with the jury verdict, the trial court signed a “Partial Final Judgment” dated November 13, 2009, memorializing the findings of the jury regarding the non-public entity defendants, Dell, Inc., NetMethods, L.L.C., Ver-acent, L.L.C., Imagine Software, L.L.C. and Gregory Meffert. That judgment found the defendants to be liable in solido to the plaintiffs for $10,000,000.00 in damages arising out of unfair competition with the plaintiffs crime cameras in violation of the Louisiana Unfair Trade Practices Act, which violations were found to have occurred subsequent to April 20, 2006. Fault was allocated 35% to Dell, 15% to NetMethods, 8% to Veracent, 3% to Imagine Software, LLC, 20% to Mr. Meffert, 10% to the City of New Orleans, and 9% to Christopher Drake. The plaintiffs’ claims under the Louisiana Uniform Trade Secrets Act were denied. Dell’s breach of the non-disclosure agreement with the plaintiffs was found to have caused no damages and was, therefore, dismissed. Plaintiffs’ claim against Dell for punitive damages was dismissed based on a finding that Dell was neither grossly negligent nor malicious in appropriating the plaintiffs’ trade secrets and breaching its non-disclosure agreement. Judgment was rendered in favor of the plaintiffs jointly against Dell in the sum of $2,800,000.00 based on the plaintiffs’ reliance upon Dell promise(s) to engage in the video surveillance business with the plaintiffs. $3,500,000.00 was awarded to the plaintiffs for tortious interference with the plaintiffs’ Contract and 112fault was allocated 30% to Imagine Software, LLC, 43% to Mr. Meffert, and 27% to the plaintiffs. Finally, the jury found Mr. Meffert’s actions with respect to the Contract with Southern Electronics to be “willful, outrageous, reckless or flagrant misconduct.” Therefore, he was found not to be entitled to La. R.S. 9:2798.1 discretionary immunity.

Pursuant to a judgment dated November 9, 2009, the trial court granted the motion for a directed verdict of Method Investments and dismissed with prejudice all claims against it; and granted in part the motion for a directed verdict of Vera-cent and NetMethods and dismissed with prejudice all claims against them for unjust enrichment and tortious interference with contract.

On November 16, 2009, the plaintiffs filed a Motion to Fix Attorneys’ Fees and Costs Pursuant to the Louisiana Unfair Trade Practices Act, praying for an award of 42.5% of $10,000,000.00, plus interest from April 20, 2007 along with $1,272,630.53 in costs.

On November 20, 2009, the plaintiffs filed a Motion for JNOV or, Alternatively, New Trial in which the plaintiffs complained that the jury erred in that: (1) the jury should have awarded damages on the plaintiffs’ Non-Disclosure Agreement claims, having specifically found that Dell breached the Non-Disclosure Agreement; (2) the jury award was manifestly erroneously low in the face of evidence showing that the “Plaintiffs’ lost profits are at a minimum of $662 million and up to $1.9 billion.”; and (3) it was error to assign 27% of the fault to the plaintiffs themselves.

On November 24, 2009 NetMethods and Veracent filed a motion for JNOV.

Greg Meffert also filed a JNOV motion on November 24, 2009. This is the JNOV motion that figures so prominently in the instant appeal. In the | ^memorandum filed in support of the motion, Mr. Meffert contends that there were four flaws: (1) the finding that the plaintiffs were 27% at fault in the breach of their contract with the City provides an independent justification of the breach, thereby precluding any liability on the part of Mr. Meffert for intentionally causing or contributing to that breach; (2) the jury finding that the City breached the Contract and the award of $3,500,000.00 in connection with that breach is contrary to the evidence; (3) the award for intentional interference provides a double recovery for the unfair trade practices allegedly perpetrated by Mr. Meffert; and (4) it was error for the jury to find that Mr. Meffert’s actions constituted “willful, reckless, outrageous or flagrant misconduct” in the face of the jury finding that Mr. Meffert acted based on policy grounds in a matter in which he had discretion to act.

On the same day, Dell also filed a JNOV motion, praying that the plaintiffs’ Louisiana Unfair Trade Practices Act, conspiracy and detrimental reliance claims be dismissed or, in the alternative, that judgment be entered limiting Dell’s liability to $8,100,000.00.

As this was a bifurcated trial, based on the same September 14, 2009 trial, the trial court signed a judgment on February 4, 2010, dismissing the plaintiffs claims against the City of New Orleans.

The April 7, 2010 judgment denying Mr. Meffert’s JNOV motion also granted a JNOV motion filed by defendants Dell and NetMethods resulting in a judgment against them in solido for 81% of the $10,000,000 Louisiana Unfair Trade Practices Act damages awarded by the jury, but exempting them from any liability to the plaintiffs for damages attributed by the jury to Christopher Drake or the City of New Orleans; granted the JNOV motion filed by the plaintiffs regarding 114the jury’s allocation of fault to the plaintiff Southern; denied the JNOV motions filed by Dell, NetMethods, Veraeent, Mr. Mef-fert and the plaintiffs in all other respects; granted the plaintiffs’ motion for attorneys’ fees and costs to the extent of awarding as attorneys’ fees 42.5% of the $10,000,000.00 Louisiana Unfair Trade Practices Act award and costs of $1,267,019.62 in connection with the Louisiana Unfair Trade Practices Act claim. On April 16, 2010, Southern Electronics filed a notice of devolutive appeal as to the dismissal of its breach of contract claim against the City. On April 29, 2010, Dell filed a motion for a suspensive appeal of the judgment of April 7, 2010.

On May 10, 2010 the plaintiffs filed a notice of devolutive appeal pertaining to the August 7, 2009 judgment granting a partial summary judgment in favor of Dell; the September 17, 2009 judgment granting motions in limine to exclude the testimony of Mark St. Pierre; the November 13, 2009 judgment on the jury verdict; and the April 7, 2010 final judgment, averring that the judgment of April 7, 2010 disposed of all the remaining issues in the case, such that all the other judgments became ripe for appellate review.

On May 27, 2010, NetMethods and Vera-cent filed a motion for devolutive appeal from the April 7, 2010 judgment.

On June 1, 2010, Greg Meffert filed a motion for devolutive appeal from the November 13, 2009 judgment on the jury verdict and the judgment of April 7, 2010, especially regarding the rulings on the JNOV motions filed by both Meffert and the plaintiffs, as well as “[a]ll interlocutory judgments, orders and decrees bound up with the aforementioned judgments.

On November 19, 2010, Southern Electronics and the City filed a joint motion to dismiss limited to the “breach of Contract claim against the City of New j ^Orleans ...” This Court granted that motion on November 23, 2010, thereby removing the City as a party to this appeal.

On December 8, 2010, the plaintiffs and Dell filed a joint motion to dismiss all of the plaintiffs’ claims against Dell based on a settlement among those parties. This Court granted the motion on December 9, 2010, thereby removing Dell as a party to this appeal.

On December 21, 2010, NetMethods and Veraeent moved to have this Court dismiss their appeal as moot based on the fact that the plaintiffs have, since the time that NetMethods and Veraeent took this appeal from the judgment against them and in favor of the plaintiffs, filed a notice of Satisfaction of Judgment in the trial court, discharging NetMethods and Veracent from any liability. Accordingly, on December 23, 2010, this Court dismissed their appeal, thereby removing them as parties to this appeal.

Therefore, while this case had numerous parties in the trial court, this appeal has now boiled down to Meffert’s appeal and that appeal in turn rests on Meffert’s complaints concerning the April 7, 2010 judgment insofar as it denies Meffert’s JNOV motion.

None of the other matters raised by the plaintiffs or the various former appellants are being pursued in this appeal, and the only parties to appear before this Court to argue this matter are the plaintiffs and Meffert and the only issue is the denial of Meffert’s JNOV motion. Therefore, we shall now address Meffert’s complaints concerning the denial of his JNOV motion.

|u;A trial court’s authority to grant a JNOV under Louisiana Code of Civil Procedure Article 1811 is limited by the jurisprudence to those cases where the jury’s verdict is absolutely unsupported by any competent evidence. Davis v. Lazarus, 04-0582, p. 8 (La.App. 4 Cir. 3/8/06), 927 So.2d 456, 461. As this Court explained in greater depth in Adams v. Voyager Indemn. Ins. Co., 02-1333, p. 3 (La.App. 4 Cir. 10/1/03), 858 So.2d 681, 683-84:

[T]he Louisiana Supreme Court in Joseph v. Broussard Mill, 2000-0628, p. 1 (La.10/30/00), 772 So.2d 94, reiterated the criteria it set forth in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of the evidence for the mover. The motion should be denied if the evidence opposed to the motion is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv. Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of *684 fact.” Scott, 496 So.2d at 273; Joseph, 2000-0628, pp. 4-5, 772 So.2d at 99.

Id.

This court elaborated further in Torrejon v. Mobil Oil Co., 03-1426, p. 10 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 885:

In reviewing a JNOV on appeal, a two-part inquiry is imposed. First, the appellate court must determine if the trial judge erred in granting the JNOV. This is done by using the same criteria that the trial judge applies in | ,7deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Martin, 2000-1023 at p. 6, n. 7, 784 So.2d at 632; Anderson, 583 So.2d at 832; Joseph, 2000-0628 at p. 5, 772 So.2d at 99. Second, “[a]fter determining that the trial correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.” Martin, 2000-1023 at p. 6, n. 7, 784 So.2d at 632 (citing Anderson, 583 So.2d at 832).

Id.

However, Meffert limits his arguments on this appeal to legal issues. He emphasizes that his appeal is not directed against the fact findings of the trial court. Mef-fert complains in his Reply Brief that the plaintiffs-appellees’ arguments concerning the facts are not relevant to his appeal which is the only appeal remaining before this Court:

[Plaintiffs-jAppellees also attempt to persuade this Court that this matter really arises from a failure to resolve “differences in factual findings.” Once again, as set forth above, the basis of this appeal does not ask this Court to analyze what the jury may have concluded factually. As such, the arguments raised by Appellees in Section 11(A)(2) of the Opposition Brief are of no concern to this Court. The nub of this appeal is simple: Did the trial court commit legal error when it denied the JNOV which sought to reconcile the jury verdict with trial court’s ruling and binding precedent? The appeal is not about factual findings, but rather legal conclusions, most glaringly, was there a breach of the contract, and if not, could the jury still have reached the verdict it did? If there was no breach, as the trial court found, then under extant law, the jury could not have held Mr. Meffert liable for intentional interference. [Emphasis added.]

|1sAs Meffert emphatically insists that his appeal is based entirely on legal issues and is not based on factual disputes (which his attorney reemphasized in his June 8, 2011 letter to this Court described in footnote Number 2 on page 3 of this Opinion), there is no basis for reversing the JNOV of which Meffert complains based on any failure on the part of the trial court to comply with the rigorous jurisprudential fact finding standards for JNOV’s as exemplified by such cases as Davis, Adams, and Torrejon, supra.

The crux of this appeal is the fact that in this bifurcated trial the jury allocated 10% of the fault to the City in connection with the breach of the Contract with the plaintiffs, while the trial judge held that no breach of the Contract occurred, i.e., the City was free of fault and liability. Based upon this seeming inconsistency, Meffert makes two main arguments in this appeal: First, that a prerequisite to a claim of tortious interference with a contract is that there be a breach of the contract. To put it another way, one could characterize Meffert’s argument as, that in the absence of a breach of contract, there is no cause of action for tortious interference. Therefore, based on the Court’s finding that there was no breach of the Contract, Mef-fert contends that the plaintiffs have no claim for tortious interference with the Contract, thereby invalidating the substantial damage award by the jury against Mr. Meffert for his tortious interference with the Contract. Second, that as a result of the inconsistency between the jury’s attribution of 10% fault to the City for tortious interference with the Contract and the finding by the trial judge that there was no breach mandates a de novo review by this Court.

| ,aAs to the second of Meffert’s contentions, it is his position that the failure of the trial court to recognize that there can be no cause of action for tortious interference where the actions complained of do not result in an actual breach of the contract at issue, is an error of law. The plaintiff argues that it follows that as the denial of his JNOV motion was based on legal error, this Court is bound to perform a de novo review of the trial court’s denial of the JNOV. In support of this argument, the plaintiff cites: Bell v. Glaser, 08-0279, p. 4 (La.App. 4 Cir. 7/1/09), 16 So.3d 514, 516; Edwards v. Pierre, 08-0177, p. 9 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 656; and Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 09-0007, p. 19 (La.App. 4 Cir. 4/21/10), 38 So.3d 963, 977. Bell and Edwards stand for the proposition that when a trial court commits legal error, an appellate court is required to review the record de novo. The Audubon Orthopedic and Sports Medicene ease stands for the slightly different proposition that we review legal errors de novo, i.e., we are never bound by the trial court’s conclusions of law. As Meffert’s appeal involves assertions of error as to legal issues rather than factual disputes, his arguments fall under the Audubon Orthopedic and Sports Medicene maxim that this Court reviews legal errors de novo rather than arguing that because of legal errors he is entitled to a factual de novo review of the record.

The first issue to be decided by this Court is whether an action for tortious interference can be maintained in the absence of a finding that the Contract was, in fact, breached. In other words, can there be a cause of action for tortious interference where there is no breach? Whether it is essential to a claim of tortious interference with a contract that there be an actual breach of that contract is a |2nquestion of law which we review de novo. Scott v. Department of Housing & Neighborhood Development, 08-0919, p. 3 (La.App. 4 Cir. 10/1/08), 995 So.2d 1249, 1251; Williams v. Fahrenholtz, 08-0961, p. 101-102 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 101.

Pertinent to the Plaintiffs’ action for damages arising from tortious interference with contractual relationship, the jury answered “yes” to the following question:

Do you find by a preponderance of the evidence that the City of New Orleans breached its Contract with Southern Electronics or that Southern Electronics performance under the Contract was intentionally caused to be impossible or more burdensome?”

The jury then found that both Meffert and Imagine Software “caused the breach of the City of New Orleans’ Contract with Southern Electronics or intentionally made Southern Electronics’ performance of the Contract impossible or more burdensome” and that both Meffert and Imagine Software lacked justification for their actions.

Basically, Mr. Meffert complains that for the trial court to have held him liable for intentional interference with a contract, per force, the trial court must have also determined that he induced an actual breach of that contract. In support of this contention, Mr. Meffert cites Hemmans v. State Farm Ins. Co., 94-0496 (La.App. 4 Cir. 3/21/95), 653 So.2d 69, 77; accord, Sun Drilling Prods. Corp. v. Rayborn, 00-1884 (La.App. 4 Cir. 10/3/01), 798 So.2d 1141, 1155.

The seminal case in Louisiana jurisprudence concerning tortious interference is 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989). That case is best 12i known for its declaration of the five elements of a claim for tortious interference with a contractual relationship as follows:

(1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

Id., 538 So.2d at 234.

However, 9 to 5 Fashions, Inc.’s declaration of the existence of a duty is much more direct, simpler and to the point concerning the instant case, where the opinion refers to:

... a corporate officer’s duty to refrain from intentional and unjustified interference with the contractual relation between his employer and a third person.

9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989).

It is much simpler to understand this case in terms of that duty: Who can doubt that Meffert as a public official owed a duty to the plaintiffs-appellants to perform in a manner consistent with his official duties?! By the standards of .9 to 5 Fashions, Meffert had a duty “to refrain from intentional and unjustified interference with the contractual relation between his employer [the City] and a third person [the plaintiffs, dealing with the City].” In the instant case, Meffert’s acts were intentional as distinguished from the negligent acts of the defendant in .9 to 5 Fashions, Inc., and, therefore, meet the criteria of the five elements set forth in 9 to 5 Fashions, Inc. We would like to believe that, as a matter of public policy, the duty owed by a public official in such circumstances is, if anything, greater b^than the ordinary duty owed by a private employee of a private employer, rising to the level of a fiduciary, or if not technically a fiduciary, something very much akin to such a duty.

As the Louisiana Supreme Court explained in 9 to 5 Fashions, Inc. in creating what was then the novel liability theory in Louisiana of tortious interference with a contract:

Nevertheless, as general rules of action, they are consistent with civilian delictual principles and implemental of present day moral, social and economic values.

9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 232 (La.1989).

As regards the duty of a public servant to perform his duties faithfully, that is a concept of much greater vintage even than that referred to in 9 to 5 Fashions, Inc., as “implemental of present day moral, social and economic values.”

Mr. Meffert cites Sun Drilling Products Corp. v. Rayborn, 00-1884 (La.App. 4 Cir. 10/3/01), 798 So.2d 1141, for the proposition that without a finding “of a breach of contract, no cause of action lies for tortious interference with a contract.” Sun Drilling does have language to that effect. Id., 00-1884, p. 12, 798 So.2d at 1151. However, later in the same opinion this Court expands on the concept of tortious interference in language consistent with and in reliance upon .9 to 5 Fashions:

An officer of a corporation owes an obligation to a third person having a contractual relationship with the corporation to refrain from acts intentionally causing the company to breach the contract or to make performance more burdensome, difficult or impossible or of less value to the one entitled to performance, unless the officer has reasonable justification for his conduct. The officer’s action is justified, and he is entitled to a privilege of immunity, if he acted within the scope of the corporate authority and in the reasonable belief that his action wasjjgfor the benefit of the corporation. 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 231 (La.1989).

Sun Drilling Products 00-1884, p. 798 So.2d at 1155.

Thus, based on the language highlighted above from Sun Drilling this Court recognized that tortious interference was not limited solely to a breach of contract, but also could encompass acts that would “make performance more burdensome, difficult or impossible or of less value to the one entitled to performance,” consistent with the plaintiffs’ theory of the case now before us.

Similarly in Hemmans v. State Farm Ins. Co., 94-0496 (La.App. 4 Cir. 3/21/95), 653 So.2d 69, 77, this Court focused on the issue of breach:

Applying these legal precepts to the case before us, we find that one element of this cause of action must necessarily be a finding of a breach of the contract, which we have concluded did not occur in this case. As State Farm did not breach its contract with Hemmans, it follows that West and Barr cannot be held liable for intentionally causing the breach.

Id.

The “legal precepts” referred to in the language highlighted above from Hem-mans are the precepts set forth in 9 to 5 Fashions, including the following: “[T]he officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome.” Hemmans v. State Farm Ins. Co., 94-0496 La.App. 4 Cir. 3/21/95, 653 So.2d 69, 77. Thus, while this Court was focused on the issue of breach in the Hemmans case, the authority upon which this Court based its opinion, i.e., the precepts found in 9 to 5 Fashions, were broad enough to encompass a claim for the “intentional rendition of its [the Contract] performance impossible or more burdensome.”

124It is significant that this Court in Hemmans did not stop with its finding that there was no breach, which is what we would have done if that were the end of the matter as Mr. Meffert contends. That this Court in Hemmans did not take the position that the only issue was one of breach is demonstrated by the fact that it then went on to analyze the facts in terms of the fourth criterion, “absence of justification on the part of the officer,” a criterion of particular significance to Mr. Meffert’s position in this case as he, in the context of this case, is the “officer” envisioned by the fourth 9 to 5 Fashions criterion. In Hemmans, after finding that State Farm did not breach its contract with the plaintiff, Hemmans, a finding analogous to the trial court’s finding in the instant case that the City did not breach its contract with the plaintiffs, this Court went on to evaluate the culpability, if any, of certain State Farm officers, officers who stood in positions analogous to that of Mef-fert in the instant case, explaining that:

Further, there is ample evidence in the record that Robert West and Guy Barr as corporate officers of State Farm were acting within the scope of their corporate authority in their adoption and application of the loss control program. Guy Barr testified at trial that he and Robert West had met in early 1990 to discuss methods to solve the problems of large losses on State Farm’s automobile policies. He testified that the president of the corporation sanctioned their efforts to try to control the losses that were being experienced in their region. We have found no evidence in the record, nor has plaintiff indicated such, to support a finding that West or Ban-acted outside the corporate authority in adopting this program.
Under these circumstances, where plaintiff failed to prove that the corporate officers acted outside of their corporate authority or in a manner they knew to be detrimental to the corporate interest, plaintiff’s claims for interference with contractual relations against these officers is not actionable. The jury was clearly wrong in concluding otherwise.

Hemmans, 94-0496, pp 14-15 (La.App. 4 Cir. 8/21/95), 658 So.2d at 77. There would have been no need for this Court to have examined the actions of certain State Farm officers after we had found that there was no breach of the contract if the finding of no breach were fully dispositive of the case. Additionally, we note that there is not even a suggestion in Hem-mans that the question of “breach” is fully dispositive of the question of tortious interference where the actions of an “officer” such as Mr. Meffert are concerned.

Therefore, we find that an action may lie for tortious interference even in the absence of a breach, and that there is more than enough evidence in the record to support a finding that Meffert’s actions rendered the performance of the plaintiffs’ Contract with the City impossible and/or more burdensome, consistent with the criteria set forth in 9 to 5 Fashions. As such, there is no legal error in the findings of the jury and the trial court.

Having determined that the plaintiffs can recover for tortious interference even in the absence of a breach, we will now address Meffert’s assertion that the allocation of 10% fault to the City jury and the finding of the trial judge that there was no breach of Contract by and no liability on the part of the City creates an inconsistency as a matter of law, making the denial of his JNOV motion error.

In her written reasons for judgment issued in connection with the judgment of February 4, 2010, the trial judge made the following relevant findings:

1. The jury found Meffert’s actions constituted intentional misconduct. The evidence shows that Meffert had an independent personal stake in the crime camera sales to New Orleans and other cities, and played a pivotal role in assisting Veracent and NetMethods. His actions were clearly outside the scope of his employment with the City.
|2fl2. Further, there is no evidence that Anthony Jones or Mark Kurt, as Chief Technology Officers in the Mayor’s Office of Technology, knowingly assisted or participated in a scheme with Meffert. Therefore, the Court does not find soli-dary liability between the City, Meffert, Veracent and Dell.

We note that the jury also responded affirmatively to interrogatories characterizing Meffert’s actions as “constituting] willful, outrageous, reckless or flagrant misconduct.”

But of greatest significance to this case were the trial court’s findings concerning the City’s lack of liability for breach of the contract between the City and the plaintiff, Southern Electronic:

Southern Electronics’ contract with the City to provide surveillance camera systems was a supply contract that obligated the City to pay for confirmed orders of crime cameras.
Section 3.C.L of the Agreement Between The City of New Orleans and Southern Electronics Supply, Inc. (“Agreement”) provides:
c. New Sites: The parties will establish camera sites as follows:
I. Ordering: In cooperation with the Contractor, the City Project Manager will Select camera and monitoring installation sites and the equipment and connection to be installed at each. Using the Order Form at Attachment “C”, he will report the information and specify the required installation to the Contractor. Within five days of receiving the order, and using the order form, the Contractor will 1) detail the installed total cost of the proposed installation, 2) offer to complete the specified installation at the stated cost, and 8) request the City’s written approval thereto. The Contractor may consider the offer and request to the City refused unless within forty-five days after it receives the Contractor’s request for approval the City delivers the Contractor 1) its written approval to the order AND 2) 50% of the Instated cost. Relative to the installation, the City’s approval will confirm the parties’ obligations to install, inspect, accept, and pay as below provided.
Pursuant to this provision, the City’s Project Manager will select installation sites and place orders for cameras. Southern could accept or reject the City’s order and, if accepted, the City had 45 days to give written approval and pay 50% of the stated cost. According to these terms, Southern’s action for breach of contract is limited to the cost of cameras ordered and accepted by the City. If the words of a contract are clear and explicit, interpretation is determined by the common intent of the parties. C.C. arts. 2045 and 2046.
Plaintiff seeks recovery for the installation cost of 240 cameras and maintenance changes [sic] it contends were guaranteed pursuant to its contract with the City. It is undisputed that Southern installed only sixty (60) cameras during the contract with the City. Southern does not contend there is a balance owed for these cameras, for orders approved and not yet delivered; or for change orders or additional work.
Additionally, the maintenance provision of the contract required the parties to adjust advance annual payment according to a formula outlined in section 5.b. of the Agreement. (Plaintiffs’ Exhibit 2, p. 4). There is no evidence of a guaranteed payment to Southern according to these terms and no evidence of any outstanding invoices.
Thus, Southern’s claim for breach of contract is denied because there is no evidence of any recoverable damages under the express terms of its contract with the City of New Orleans.

Consistent with the finding that there was no breach of the Contract, the trial court dismissed the plaintiffs’ claims against the City for breach of contract. In her reasons for denying Meffert’s JNOV motion, the trial judge found:

The evidence at trial shows that Meffert intentionally and without justification complained about Southern’s performance, made unwarranted demands and created payment problems making it impossible for it to perform its contract with the City. Therefore, the Court’s determination that the City did not breach it’s [sic] ^contact with Southern doesn’t affect the jury’s finding against Meffert for tortiously interfering with its contract.

The jury finding allows for the trial court’s finding that the Contract may not have technically been breached. The jury findings can be read to mean that it found either that the City breached its Contract with the City or that Meffert and/or Imagine Software had intentionally caused Southern Electronic’s performance under the contract to be more burdensome. When the trial judge considered the evidence at trial, she agreed with the jury that the evidence showed “that Meffert intentionally and without justification complained about Southern’s performance, made unwarranted demands and created payment problems making it impossible for it to perform its contract with the City.” Given that both fact finders found that Meffert was liable to the plaintiffs for tortious interference with their contractual relationship with the City, the two fact finders are not inconsistent on that count. Thus, the jury verdict is consistent with the trial court judgment both (1) in its conclusion that Meffert interfered tortuously with the plaintiffs Contract with the City and (2) in the allocation of 43% of the fault to Meffert.

Meffert relies entirely on his argument that there can be no claim for tortious interference in the absence of a breach and, therefore, does not challenge the findings that he made the performance of the Contract more burdensome or impossible to perform. Therefore, we find no basis in the record or in Meffert’s brief to this Court to reverse the findings that he made the Contract impossible and/or more burdensome for the plaintiffs to perform.

There is no legal inconsistency between the allocations of fault made by the jury and the trial judge in the instant case. While the trial judge and the jury did not reach the same conclusions concerning the fault of the City, that does not | ^create an ipso facto inconsistency as a matter of law. This is easy to see if we substitute the City and Meffert for the analogous parties in State Farm Mut. Auto. Ins. Co. v. LeRouge, 07-0918 (La.App. 4 Cir. 11/12/08), 995 So.2d 1262. Just as this Court found in LeRouge, we find that “the jury had no authority to determine the fault of [the City]; it did, however, have authority to allocate fault to the remaining defendants, and chose to allocate [43% to Mr. Meffert].” Id., 07-0918, p. 13, 995 So.2d at 1273.

This Court further explained in LeRouge, based on its prior decision in Madison v. Ernest N. Mortal Convention Center-New Orleans, 00-1929, 01-1127, pp. 12-13 (La.App. 4 Cir. 12/4/02), 834 So.2d 578, 587, “there is no irreconcilable inconsistency where the total fault assigned is less than or equal to one hundred percent.” LeRouge, 07-918, p. 13, 995 So.2d at 1273. While the result may seem inconsistent and counter intuitive from the perspective of a typical mathematical proposition where everything adds up to 100%, it is completely consistent with the legal concept of how fault is allocated. In other words, “inconsistency” in this context is a term of art and the fact that the allocations of fault by a judge and a jury in a bifurcated trial may not agree with mathematical precision does not render them inconsistent. Legally, it is recognized that the allocation of fault is not an exact science. This is the reason that this Court reviews allocations of fault according to the manifest error standard of review. We do not reverse fault allocations made by the fact finder just because we believe that we would have allocated fault slight differently had we been the fact finder— within reason. As the law allows the fact finder some latitude in the allocation of fault, i.e., such allocation must necessarily be to some extent subjective, it is only natural that two different, but reasonable, fact finders would reach differing conclusions. In fact, it | snwould really be surprising if they did not where multiple parties are involved, except in the most obvious cases, such as where one party is clearly totally at fault.

Where fault must be allocated among a number of parties, reasonable fact finders may easily differ within reasonable parameters as to the precise percentage to be assigned to each party. Therefore, it is logical that, as a matter of law, the fact that the jury and the trial judge did not agree on the amount of fault to be allocated to the City does not per se vitiate the fault allocations made by the jury to the other defendants, as long as those allocations are within acceptable parameters under the standard applicable to jury comparative fault allocations and does not exceed 100%. This is especially true where the 10% of fault over which the judge and jury failed to agree was such a small part of the overall allocation of fault. Accordingly, we find no “inconsistency” in the differing fault allocations made by the trial court and the jury concerning the City.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

ORDER

IT IS HEREBY ORDERED THAT the Motion for leave to File Application for Rehearing En Banc Out of Time filed by the defendant-appellant, Greg Meffert, is denied.

IT IS FURTHER ORDERED THAT the Application for Rehearing filed by the defendant-appellant, Greg Meffert, is denied.

      . The transactions involved in this case figured prominently in Mr. St. Pierre’s recent highly publicized federal criminal trial in which he was convicted. Mr. Meffert testified as a witness for the government in that trial after having entered into a plea agreement. This Court received a letter from Mr. Mef-fert’s attorney dated June 8, 2011, in which he disavowed any knowledge of inconsistencies in the testimony given by Mr. Meffert in these proceedings and testimony he may have given in the federal criminal proceedings. He emphasizes in the letter that "as the only issue on appeal is a legal one, and not premised in any way on any testimony, any possible false testimony should not be material to the only current proceeding, that being Mr. Meffert’s appeal.”

      . During the course of the proceedings in the trial court, various parties made numerous writ applications to this Court and to the Supreme Court of the State of Louisiana, some of which were successful and some of which were not. However, while Meffert's motion for a devolutive appeal technically states that it encompasses all interlocutory "judgments, orders and decrees,” he has not raised any arguments on appeal regarding any of them.

      . This is especially true where Meffert has failed to asserted any factual assignments of error.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Jeryl HENIX, Appellant.
    No. 46,396-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Kodie K. Smith, Suzanne Morelock Owen, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

It This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Following a jury trial on September 14, 2010, the defendant, Jeryl Henix, was convicted of driving while intoxicated, third offense in violation of La. R.S. 14:98. He was sentenced to a term of imprisonment at hard labor for four years. The defendant was also ordered to pay a mandatory $2,000.00 fine. This appeal ensued. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On January 16, 2010, a rainy early morning, Officer Tashia Robinson of the Shreveport Police Department (“SPD”) was flagged down and told that a car was stuck in a ditch on Greenwood Road. She reported to the scene and came in contact with Henix. Henix had been driving his mother’s 1992 Cadillac when he drove through construction and landed into a ditch. When Off. Robinson saw Henix he was exiting the vehicle from the driver’s side and attempting to walk away. She detected a strong odor of alcohol on him, his speech was slurred, and he was unbalanced. Officer Robinson also noticed an abrasion or laceration to the upper left side of his face, near his left eye. Shreveport Fire Department Emergency Medical Services Unit (“EMS”) arrived on the scene and inquired about Henix’s injury. Henix replied that he was fíne and did not need to be transported to the hospital, but he continuously requested to go home. EMS identified the injury as minor. Officer Robinson inquired whether Henix had been drinking. He initially reported that he had not, and later he stated that he actually had been drinking. No open containers were found in or around the car. Based 12upon Henix’s condition and confession Off. Robinson transported Henix to the SPD traffic unit.

After arriving at the station Henix was transported to the SPD DWI unit, where he came in contact with Officer Daniel Chumley. Officer Chumley had worked in the DWI unit for five years. His first impression of Henix was that he detected “a strong odor of an alcoholic beverage; his balance appeared to be poor, unsteady, appearance was real saggy, lazy looking.” Officer Chumley recognized these signs as indications of intoxication. Officer Chum-ley read Henix his rights and informed him that if he refused a chemical test it would be his third refusal; as such, penalties would follow. After Henix was informed of his rights, Off. Chumley began to question him. Officer Chumley testified that Henix’s speech was very hard to understand, his words were slurred, and he did not pronounce words properly. Henix told Off. Chumley that he consumed a total of three Coors Light beers prior to driving. He stated that he drank them before he came in contact with Off. Robinson. The exact time that the alcohol was consumed is unclear. Henix also could not inform Off. Chumley whether or not he was taking medication or had diabetes. When Henix was asked what happened, he did not state that he was involved in a crash, but he merely stated that there was mud. He also could not explain how he received the laceration to his eye. When asked if he had any physical limitations that would affect his ability to perform the field sobriety test, Henix responded that he did not.

| (¡Following questioning, Off. Chumley began to administer the standardized field sobriety tests. He asked Henix to stand up straight, place his arms by his side, tilt his head up, and state the alphabet from “a” to “z.” Henix was unable to do so without moving and could not complete the alphabet. He was also asked to walk in a straight line touching heel-to-toe, which he was unable to do. The Horizontal Gaze Nystagmus Test is used to evaluate involuntary jerking of the eyes, which becomes more distinct with the amount of alcohol that somebody has consumed; however, Off. Chumley testified that he did not perform the test on Henix because he did not know if Henix had something in his eye that would alter the results of the test. Upon completion of the standardized field sobriety tests, Off. Chumley asked Henix if he would like to submit to a chemical test. Henix refused, making that his third refusal of a chemical test. He was subsequently booked into the Shreveport City Jail. Officer Chumley testified that when Henix exited the exam room he urinated on himself.

Henix was changed by bill of information with DWI, third offense based on two pri- or DWI convictions in 2008 and 2009. He pleaded not guilty and a jury trial commenced. Following closing arguments, the jury was instructed on the law and the rules that should govern their deliberations. Each juror was allowed to review a copy of the jury instructions and follow along as they were read aloud. After the instructions were read, the jury was given a copy of the instructions to take into the jury deliberation room.

|4Henix was convicted as charged and sentenced to serve four years in prison at hard labor. Additionally, he was required to pay a mandatory fine of $2,000.00, plus court costs. This appeal followed.

Law and Discussion

On appeal Henix asserts two assignments of error. First, he asserts the evidence adduced in the instant case is insufficient to support a conviction of driving while intoxicated, third offense. Second, he contends the trial court erred in giving a written copy of the jury instructions to the jury during the deliberations.

Sufficiency of Evidence

In his first assignment of error, Henix contends that Off. Chumley was neither qualified nor tendered as an expert in any field; nevertheless, he administered several tests to Henix to determine his sobriety and rendered an opinion that he was under the influence of alcohol. As such, Henix argues that this evidence should have been inadmissible against him at trial. Henix further contends that the conviction was based upon circumstantial evidence that did not exclude the possibility that he was impaired, not from consuming alcohol, but from a head injury he sustained as a result of the accident.

When issues are raised on appeal both as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing the sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). |aThe standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Operating a vehicle while intoxicated is defined in La. R.S. 14:98(A), which provides in pertinent part:

Ifi(l) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; or
(b) the operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood....

In regards to presenting evidence at trial, La. C.E. art. 701 contains an exception to the general rule that a lay witness may not give opinions. The article states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. McDonald, 33,013 (La.App.2d Cir.03/01/00), 754 So.2d 382, 386. It is not necessary that a conviction for DWI be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish a defendant’s guilt; intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Blackburn, 37,918 (La.App.2d Cir.01/28/04), 865 So.2d 912. A defendant’s refusal to take the breath test is admissible at a DWI prosecution; the weight of the evidence is left to the trier of fact. La. R.S. 1732:666(A)(3); State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969); State v. Blackburn, supra.

At trial Off. Chumley testified about administering the field sobriety tests to Henix. We find the trial court did not err in admitting this testimony. Louisiana C.E. art. 701 did not prohibit it for two reasons: (1) the observations of an arresting officer may be sufficient to establish a defendant’s guilt; and (2) intoxication is an observable condition. First, the observations of an arresting officer may be sufficient to establish a defendant’s guilt. Allen, supra; Blockburn, supra. Officer Chumley, an experienced officer of five years, believed from

his observations that Henix was intoxicated. During his tenure at the SPD, had performed numerous field sobriety tests. As such, his knowledge in the field makes him capable to identify an intoxicated individual.

Second, intoxication is an observable condition. Id. There are certain behavior manifestations associated with intoxication, many of which are known to the layman. Therefore, a lay witness may testify about observing these conditions. Here, even if Off. Chumley was not qualified as an expert, his testimony would still be admissible because a lay witness may testify to observing the conditions of intoxication.

Furthermore, we must note that there was no objection at trial to the testimony of Off. Chumley. The contemporaneous objection rule provides:

[A]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party at the time the ruling or order of the court is made | sor sought, makes known to the court that action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

La. C. Cr. Pr. art. 841. Therefore, we find that the defendant’s failure to object bars his later attempt to challenge the admissibility of Off. Chumley’s testimony.

Henix also claims the evidence presented at trial was insufficient to support his conviction. We disagree. At trial, the state called Off. Robinson to testify. Officer Robinson made initial contact with He-nix on the day of the accident. She smelled a strong odor of alcohol on his person, and Henix confessed that he had something to drink. EMS arrived at the scene of the accident to examine Henix. EMS reported that his injury was minor, and Henix, himself, stated that he did not need to be transported to the hospital. Because EMS examined Henix’s head injury and found that it was minor, the possibility that the injury might impair his ability to perform the field sobriety tests was taken into consideration and properly excluded. After EMS examined Henix and he admitted to drinking alcohol, Off. Robinson transported him to the SPD DWI unit where Henix came in contact with Off. Chumley. As discussed, Off. Chumley performed several field sobriety tests on Henix, all of which he failed. Based on that evidence, Off. Chumley believed He-nix to be intoxicated.

In addition to the testimony of Officers Robinson and Chumley, the jury viewed two videos of the defendant the night of his arrest. The first video depicted the incident from Off. Robinson’s vehicle. It is apparent that Henix had difficulties locating his license, proof of insurance, and vehicle | registration for Off. Robinson, that his speech was slurred, and that he had difficulty maintaining his balance. The jury also viewed video of Henix performing field sobriety tests at the station with Off. Chumley. The video showed that Henix was unable to stand in one place with his head back while reciting the alphabet, or to walk in a straight line. The video also corroborates Off. Chumley’s testimony that Henix urinated on himself.

The jury clearly found the testimony of Officers Robinson and Chumley to be credible. In addition, they were able to watch video surveillance of Henix first hand. After reviewing the record, we find that the jury had sufficient evidence to reasonably conclude that Henix was driving while intoxicated. Thus, this assignment of error is without merit.

Written Jury Charge

Henix argues in his second assignment of error that the trial court erred in providing a written copy of the jury instructions to the jury during deliberations.

Louisiana C. Cr. P. art. 801 addresses the time of the jury charge and when a written charge is required. It provides:

A. The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury.
| in(2) The lack of consent by either the defendant or the state to the delivery of the written charge to the jury shall not be communicated to the jury.
C. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

After a review of the record, we agree that the trial court did not follow the procedure outlined by La. C. Cr. P. art. 801 when allowing the jury a copy of the jury instructions. Pursuant to art. 801, the trial court was required to obtain the consent of both parties prior to dispensing a written copy of the jury instructions to the jury. The record does not indicate that the trial court obtained the consent of either party before doing so.

However, the contemporaneous objection rule, supra, and La. C. Cr. P. art. 801 mandate that a defendant must state an objection at trial in order to preserve the issue for appeal. The record does not reflect that the defendant objected to the charge before the jury retired or within such time as the trial court may have reasonably cured the error. Due to the fact that the defendant failed to properly preserve this assignment of error for review, it cannot now be asserted on appeal.

Even if the defendant had objected at trial, the error was harmless. Louisiana C. Cr. P. art. 921 provides, “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

[nIn this case, the jury instructions were read in their entirety in open court in the presence of Henix and his counsel prior to the jury retiring to deliberate with the written copy of the identical jury charge delivered to them. Moreover, pursuant to La. C. Cr. P. art. 801, Henix had the opportunity to review the jury instructions and consent to them; there is no indication in the record that Henix was opposed to any part of the jury instructions. It is clear from the record that the introduction of the jury instruction to the jury did not prejudice Henix at trial. Thus, this assignment of error is without merit. See State v. Eiskina, 965 So.2d 1010, 1015 (La.App.2d Cir.09/19/07).

Conclusion

For the foregoing reasons, the conviction and sentence for Jeryl Henix are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Billy Ray HENRY, Appellant.
    No. 46,406-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Charles R. Scott II, District Attorney, Tommy J. Johnson, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

| T Billy Ray Henry was convicted of theft over $500 in violation of La. R.S. 14:67 and sentenced to four years at hard labor, with the first year to be served without benefit of probation, parole, or suspension of sentence. The balance of sentence was suspended and Henry was placed on two years’ supervised probation with restitution of $1,200. Henry appeals his conviction and sentence. We affirm his conviction and amend his sentence to delete the parole prohibition.

Facts

Billy Ray Henry was charged with theft over $500 after the landlord of his restaurant alleged that Henry authorized the removal and sale of the lessor’s restaurant equipment without the lessor’s consent. Henry’s defense attempted to show that both he and his vendee of the equipment were mistaken in the removal of the old equipment from the restaurant and had no intent to deprive the owner of the property.

At the bench trial, Leslie Coates Martin, All Property Services office manager, testified that in November of 2005 Billy Ray Henry leased a restaurant located at 1430 Hawn Ave. in Shreveport from Main Street Commercial Development. All Property Services acted as the leasing agent for the property. Martin prepared and witnessed the three-year lease which was signed by Daniel and Matt Delaney as lessors and Chandra Pugh and Henry as lessees. Paragraph 5 of the lease reads in relevant part:

| pLESSEE covenants that it has fully inspected the Leased premises, is fully aware of the physical condition of said premises and hereby accepts the Leased premises, including all improvements, equipment, and systems situated thereon, in their present condition, as fully suitable for the purposes for which same were leased.

Henry thereafter opened Jazzy’s Hot Spot. Martin testified that Henry was granted rent-free access to the premises for six months, but eventually opened his restaurant for business in 2006. Martin testified that by September of 2007, however, Henry was in default on the lease. Henry informed Martin that personal health conditions were going to force him to close the restaurant. Shortly thereafter, Martin walked by the restaurant and noticed that there were “no chairs, no tables, no nothing.” When Martin gained entry into the premises, she found that it had been vacated, “along with all of the equipment and furnishings in the space.” Martin identified the missing equipment from the diner which was in the premises “when [Henry] took possession of it.” Martin testified that the property that was missing “was not the property of Billy Henry, it went with the space.”

Martin had made the list of contents “before Mr. Henry took possession” and put it in the file with the lease, although the list was not attached to the lease which Henry signed. The undated and unsigned list which was introduced into evidence, itemizes the following equipment that was provided “for the diner located at 1430 Hawn Ave.”:

6 Burner Commercial Stove w. oven.
Flat Top Grill
Charbroiler
2 Basket Deep Fryer
Convection Oven
Double Sided Prep Table
Chop Block Table
Ice Machine
IsCooler-Glass Door (Self Serve Box)
Metal Shelves
Steam Table
Stainless Steel Bread Warmer/Cooler
Short Stainless Prep Table
Stainless Ice Bin
18-20ft Stainless Table
Small Stainless Table
9-4 top tables/w chairs (downstairs)
13-4 top tables w/ chairs
6-2 top tables w/chairs

Martin testified that the list included “some of the items” that were in the restaurant including the “primary things” that would be replaced in order for the business to function as a restaurant. She stated that it cost $17,000 to replace the equipment and bring the premises back to code.

Martin testified that she spoke with Henry after she discovered the missing items and asked him where the property was. Henry told her a friend was storing it for him. Martin testified that she informed Henry that everything that was in the diner when he leased it belonged to the diner. Henry agreed to arrange for his friend to bring the property back, but this never occurred.

Martin stated that the property had been used as a restaurant for at least 30 years. She knew that Martin had brought in his own buffet or steam table. She had personally gone through the back area of the restaurant several times and did not notice any other new or different equipment. Martin testified that the majority of the equipment was permanently installed and there was no way to move or change out any of it without her employer obtaining a permit from the City. Martin testified that in addition to the stove, the vent hood, coolers, freezer and ice machine were permanent | ¿fixtures. Martin testified that most of the equipment had been in the restaurant for 10 to 20 years and had been placed there by the previous owners.

Randall James, sales and leasing agent at All Property Services, testified that he began “calling around” upon learning of the missing equipment and found that a man named Bader Bader, owner of Arkla-Tex Restaurant Equippers, had been to the restaurant the day before the business closed and had removed all of the contents. Bader claimed to have purchased them from Henry. James testified that he called the police and told an officer that he had located the missing restaurant equipment. James faxed the police a copy of the lease agreement and a list of the missing equipment.

Bader testified that he owns Arkla-Tex Restaurant Equippers and buys and sells new and used restaurant equipment. Bad-er testified that Henry contacted him in 2007 about buying equipment from the restaurant he was leasing. Henry told him he wanted to sell Bader “everything inside the restaurant.” Bader described the items that Henry offered him as “a complete restaurant, everything from tables and chairs to every piece of equipment inside the kitchen.” Bader recalled that most of the equipment was in working condition. He negotiated a price of $2,850 for the sale of the equipment. He identified the written agreement he executed with Henry which was introduced into evidence. The document read as follows:

I Billy R. Henry have sold all contents of Jazzy’s Hot Spot to Bader Bader. Only 3-comp sink will stay. 2850.00.

The document was signed by both Bader and Henry.

| sBader testified that he inspected the equipment at the restaurant with Henry who “started to point out stuff [he] wasn’t going to be able to take” with him. Bader asked Henry about his authority to sell the items. Henry told him that “they were all his equipment.” After Bader removed the items from the restaurant, he took them to his warehouse and put them in storage. The following day, Bader testified that he was contacted by James who informed him that the contents of the restaurant were not Henry’s. Bader also spoke to a Shreveport police detective about the items and actually showed him some of the items in the warehouse.

Bader testified, from memory, that he had taken a prep cooler, an oven with a grill, tables and chairs, miscellaneous pots and pans, but no sink or dishwasher or other fixtures. He also took a convection oven, ice machine, metal shelves, a stainless ice bin, flat-top grill, and a small stainless table. Bader testified that he did not take all of the chairs and tables.

Detective Charles Thompson, a property crimes investigator with the City of Shreveport Police Department, testified that he had been contacted by James in connection with his complaint of theft of equipment and supplies from a furnished restaurant on Hawn Avenue. Detective Thompson testified that James informed him that Henry had stripped his leased restaurant of all equipment and sold it. James also told Detective Thompson that Henry told him he would attempt to get the items back, but that Henry never did return the items. James told Detective Thompson that he waited | fithree months to call him because he wanted to give Henry a period of time to honor his word.

Detective Thompson went to the restaurant and recalled it to be “open space” and “just empty.” He also viewed the items that Bader had purchased. Detective Thompson testified that “they were quite in disrepair” and did not look to be a “functional commercial kitchen.” Bader told Detective Thompson that he had sold off some of the tables and chairs but that he probably would not be able to sell the remainder of the items.

Detective Thompson testified that he also spoke with Henry who told him that Martin told him that “he could do with the equipment in the lease space what he wanted to do, sell it, or whatever.” Detective Thompson stated that Henry told him that he threw away certain equipment because it was damaged. That equipment included a six-burner commercial stove or oven, a flat-top grill, a charbroiler, a convection oven, and a steam table. Henry told him he did not know what happened to the glass cooler and the stainless ice bin. Henry told the police he had sold to Bader only those items he had purchased. He admitted that he sold an ice machine, metal shelves, stainless bread warmer, stainless table and a small stainless table to Bader for $2,850.

Pugh, the co-lessee of the restaurant, testified on Henry’s behalf. She stated she was hired to be the manager of Jazzy’s Hot Spot and that the restaurant was in bad condition when they took it over, including the equipment. She stated she informed the lessors that they were not going to be able to use the stove because it did not pass the initial inspection by the |7fire marshal. Pugh testified that she and Henry bought a convection oven, the buffet, the warming buffet, and a few other pieces that replaced what they were unable to use in the restaurant. She also stated there were refrigerators which were not operating that the former tenant had used for storage and which also did not pass inspection by the fire marshal. Pugh testified that she and Henry informed the owners that they removed the stove.

Pugh testified that on the day Bader removed the merchandise from the restaurant, she was present. She recalled that Bader had a big truck there on which he had put some of her personal property. Pugh told Bader that some of the items were her personal property, and he allowed her to remove anything she claimed was hers, including decorations, pictures, mirrors, flowers in vases, statues, glassware, tablecloths and placemats, and other small decorative items.

Pugh saw items on Bader’s truck that she knew did not belong to her or Henry, and which they had no intention of taking out of the restaurant. She stated she knew they were not on the list that Bader and Henry agreed upon, although she later admitted that she had not been a witness to the sale, and had not seen a written document listing the items to be removed. She saw one of Bader’s workers take a hacksaw and cut the sink apart even though the water was still connected. She asked him what he was doing, and he told her he had been instructed to take everything. Pugh called Henry and told him what was going on, and he promised to return to the restaurant.

After hearing the evidence, the trial judge found Henry guilty of felony theft. Henry filed motions for new trial and post verdict judgment of | ^acquittal urging insufficiency of the evidence to convict. Specifically Henry argued that the state failed to prove that he possessed the specific intent to deprive anyone of the equipment and that it was Bader who took more of the equipment “than was allotted by his agreement with Billy Henry.” Prior to sentencing, the trial court denied both motions. Thereafter, the trial judge sentenced Henry to four years at hard labor with the first year to be served without the benefit of probation, parole, or suspension of sentence. The balance of the sentence was suspended, and Henry was ordered to pay restitution of $1,200. Henry received supervised probation for a period of two years and given credit for time served. No motion for reconsideration of sentence was filed. This appeal ensued.

On appeal, Henry raises claims of insufficiency of the evidence to convict and excessive sentence. Specifically, Henry argues that the state failed to prove beyond a reasonable doubt that he ever took possession of or intended to permanently deprive his landlord of the described property. Henry also argues that the trial court illegally imposed one year of the sentence without benefit of parole, probation or suspension of sentence.

Discussion

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

The Jackson standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct 110evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Presson, 43,-215 (La.App.2d Cir.6/4/08), 986 So.2d 843; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

When circumstantial evidence forms the basis of the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra; State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Presson, supra; State v. Owens, supra.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566; 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

La. R.S. 14:67 defines theft as follows:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

The statute combines the common law crime of larceny with the offense of embezzlement. The crime of embezzlement is a fraudulent and felonious appropriation of another’s property by the person to whom it has been entrusted or into whose hands it has lawfully come. The gist of the offense is a breach of trust. The essence of the offense is the conversion of the property. State v. Hayes, 01-3193 (La.1/28/03), 837 So.2d 1195; State v. Smith, 194 La. 1015, 195 So. 523, 525 (1940).

It is an essential element of embezzlement that the property charged to be embezzled was lawfully in the accused’s possession by fiduciary relation with the owner. Embezzlement differs from larceny in that the original taking is lawful. The gravamen of the offense is the subsequent felonious conversion of the property with the intent to convert it to the accused’s own use. State v. Hayes, supra, citing, Clark & Marshall, A Treatise on the Law of Crimes, § 12.19, p. 903 (7th ed.1967).

Proof of specific intent is required to convict an accused of theft because its statutory definition includes the intent to accomplish a prescribed consequence, to permanently deprive the victim of the thing taken. State v. Johnson, 368 So.2d 719 (La.1979); State v. Calloway, 324 So.2d 801 (La.1975); State v. James, 36,-493 (La.App.2d Cir.12/11/02), 833 So.2d 1162; State v. Eason, 460 So.2d 1139 (La.App.2d Cir.1984), writ denied, 463 So.2d 1317 (La.1985). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10. Although intent is a question of fact, it may be inferred from the circumstances of the transaction and that actions of the defendant. State v. Johnson, supra.

A reasonable and honest belief that one owns an interest in property precludes a finding that he intended to permanently deprive the owner of the property. State v. Rabalais, 99-623 (La.App. 3d Cir.1/26/00), 759 So.2d 836.

Unless it is shown that the owner lacks knowledge of the value of a movable, his testimony as to value is generally admissible, with its weight being left to the jury. State v. McCray, 305 So.2d 433 (La.1974); State v. Dilworth, 358 So.2d 1254 (La.1978); State v. James, 36,493 (La.App.2d Cir.12/11/02), 833 So.2d 1162; State v. Johnson, 31,488 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.l 1/12/99), 749 So.2d 653, cert. denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

In this case, the evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt. The trial testimony clearly established that the restaurant equipment and fixtures which were in the restaurant when Henry signed the lease were removed from the premises without the owner’s authority. Martin personally observed only one or two new items purchased by Henry and used in the restaurant. Otherwise, items reflected on the Improperly list she prepared shortly after Henry took possession of the property remained on the premises until the restaurant was closed. The evidence also clearly establishes that Henry intended to sell all of the restaurant property to Bad-er, that he directed Bader as they inspected the equipment before the sale, and that Bader then removed property of the owner which had been in the restaurant since the inception of the lease. Moreover, even the defense witness, Pugh, admitted that Bad-er removed items that she knew did not belong to Henry.

Henry’s claims of innocence as to his intent to permanently deprive the owner of the property were obviously rejected the by the trial court. Any issue of Henry’s intent to deprive the owner of the property was rebutted by Martin’s testimony that she informed Henry that the property he removed was not his. His failure to return those items after the confrontation and to void the sale of the items to Bader prevents Henry from claiming that his actions were a good faith error. Henry’s lies to Martin after he sold the items to Bader and later inconsistent explanations to the police also infer his guilty knowledge. The value of the items was also adequately established by the Henry/Bader invoice and the testimony of Martin, James and Bader.

From this evidence, the trial judge could have reasonably concluded that Henry knowingly sold the items valued at over $500 that did not belong to him with the intent to permanently deprive the owner of the property. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that a theft | uoccurred. The evidence was sufficient to support defendant’s conviction. This assignment is therefore without merit.

In his second assignment of error Henry argues that the trial judge erred in imposing the first year of the sentence without benefit of parole, contrary to the sentencing provisions of La. R.S. 14:67(B)(1) which reads as follows:

B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

Additionally, LSA-C.Cr.P. art. 893 provides in relevant part:

When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.

The trial court properly exercised its discretion in imposing the first year of Henry’s sentence -without benefit of probation or suspension of sentence. However, the provisions of La. R.S. 14:67 give the trial court no authority to impose the first year of Henry’s sentence without benefit of parole. Because the removal of the parole prohibition entails a ministerial correction of a sentencing error, we exercise our authority under LSA-C.Cr.P. Art. 882(A) to amend the sentence to delete the imposition of the first year of the sentence without benefit of parole. State v. Haynes, 04-1893 (La.12/10/04), 889 So.2d 224. In all other respects, the sentence is affirmed.

J^CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.

      . In her testimony Martin testified that the restaurant was "technically” in Bossier Parish, but was also in Caddo Parish.

      . While not raised in a formal assignment of error, in brief, Henry alludes to the fact that the state failed to prove that the restaurant is located in Caddo Parish. However, Henry’s failure to filed a motion for quash waives any issue of venue. State v. Rideout, 42,689 (La. App.2d Cir. 10/31/07), 968 So.2d 1210, writ denied, 08-2745 (La.9/25/09), 18 So.3d 87.