author: JUDE G. GRAVOIS, Judge. WICKER, J.,

text:
    Manuel TORRES v. Nancy Ivette TORRES.
    No. 11-CA-156.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Miguel A. Elias, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

I ¡Appellant, Manuel Torres, appeals the trial court’s judgment denying his motion for contempt against his ex-wife, Nancy Torres. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

Manuel and Nancy Torres were divorced on August 5, 1999. They are the parents of one child, Elisa Michelle Torres, who was born on August 18, 1984. On September 11, 2001, they entered into a stipulation in open court partitioning their community property. A Consent Judgment to that effect was signed by the trial court on October 23, 2001. It provided in part that Nancy “shall open a bank account on behalf of the minor, Elisa Michelle Torres and deposit the total sum of TWENTY FOUR THOUSAND FOUR HUNDRED DOLLARS ($24,400.00) dollars [sic] in a period not to exceed five (5) years from the date of this judgment.”

|sOn February 26, 2010, Manuel filed a “Motion for Citation of Contempt” against Nancy, alleging that she did not deposit the $24,400.00 into a bank account on behalf of the minor as called for in the Consent Judgment, and “has willfully and continuously failed to pay the above-mentioned obligation(s) to the petitioner.” The motion further alleged that Nancy was “guilty of contempt of the lawful authority of this court and have [sic] violated and will continue to violate the judgment of this court rendered herein, thus plaintiff should be punished for her contempt.”

On May 10, 2010, the parties appeared before a hearing officer who recommended that Nancy be found in contempt of court for failure to make payment into an account on behalf of Elisa as called for in the October 25, 2001 Consent Judgment. The hearing officer recommended that Nancy be allowed to purge herself of contempt by paying the amount of $24,400.00 by June 8, 2010. Manuel then moved for a hearing before the district court to enforce payment of the judgment by Nancy, plus costs and attorney’s fees.

At the hearing held on July 8, 2010 before the district court, Manuel’s attorney argued that Nancy had entered into the Consent Judgment that contained a clause wherein she agreed to create a bank account in the name of the minor and deposit $24,400.00 into the account and that she had failed to do so over the five-year period as provided for in the judgment. Nancy’s attorney acknowledged that Nancy had failed to abide by the Consent Judgment. He argued that it was Nancy’s understanding was that she was supposed to deposit this money into an account which was to be turned over to the minor when she turned eighteen. He explained, however, that Nancy did pay for many of her daughter’s expenses, who was twenty-five years old at the time of the hearing. He stated that Nancy had supported her daughter by helping with her wedding, paying rent for her, and that |4she had spent a lot of money on her daughter. He further explained that when the five years had passed and no one had asked her about the account, she thought she had satisfied her obligation because she was providing for her daughter who was now an adult. He stated that no one asked Nancy about the bank account until she received the motion for contempt.

The trial judge interpreted Nancy’s argument to be that she did pay these amounts, just that the funds were not deposited into a bank account. Manuel’s attorney responded that he was not claiming that Nancy did not help her daughter, but he did not think this should count as a credit against the provisions of the Consent Judgment. He argued that this clause in the Consent Judgment provided security “as opposed to just saying, well you know over ten years I’ve probably spent twenty grand on my kids.” In reaching his decision, the trial judge concluded: “The Court doesn’t find Mrs. Torres to be in contempt. I feel that she has complied with the spirit of the obligation by her contributions to her daughter and her husband.”

LAW AND DISCUSSION

On appeal, Manuel argues that the trial court erred in denying the motion for contempt because the Consent Judgment was a valid, lawful, and binding compromise, and because counsel for Nancy admitted that she had not abided to it. He contends that the trial judge’s finding that Nancy had followed the spirit of the obligation is insufficient to nullify the Consent Judgment. He concludes that his motion for contempt was the appropriate procedural device to remedy Nancy’s failure to abide by the Consent Judgment and that the trial court committed manifest error in not holding Nancy in contempt.

UArticle 221 of the Louisiana Code of Civil Procedure defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. Contempts of court are of two kinds, direct and constructive.” Pursuant to Article 224(2) of the Louisiana Code of Civil Procedure, constructive contempt is the “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” A judgment of constructive contempt must be based on a finding that there was an intentional, knowing, and purposeful violation of a court order by the accused without a justifiable excuse. Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454. A trial court has great discretion in determining whether a person is to be held in contempt and its decision will not be reversed absent an abuse of that discretion. Smith v. Smith, 35,378-379 (La.App. 2 Cir. 9/26/01), 796 So.2d 726, 731.

In this case, counsel for Manuel admits that Nancy supported their daughter and explained that the clause in question provided security for support. Although counsel for Nancy admits that she did not deposit the required funds into a bank account as called for in the Consent Judgment, he explained that Nancy had complied with the spirit of the judgment in that she had paid numerous expenses for her daughter after she had reached the age of majority. The trial judge agreed, denying the motion for contempt. After thorough review, we find no abuse of the trial court’s discretion in that ruling.

The motion alleges that Nancy has “continuously failed to pay the above-mentioned obligation(s) to petitioner.” Manuel thus argues that the trial court erred in failing to find Nancy in contempt because his community property settlement has been diminished as a result of Nancy’s noncompliance with the Consent Judgment. This argument is without merit. A contempt proceeding is designed for | Bvindication of the dignity of the court rather than for the benefit of a litigant. Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143.

Finally, Manuel argues that the trial judge erred in not allowing him to call witnesses in support of his motion for contempt. This argument is also without merit. Whether or not Nancy deposited the funds into an account was not in dispute, and thus there was no need for testimony to that effect. Hence, the trial court correctly found that testimony would not accomplish anything in this matter; rather it would “just perpetuate what is already in the record.”

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED

WICKER, J., dissents with reason.

WICKER, J.,

dissents with reason.

hi respectfully dissent for the reasons assigned.

In this case, the trial court found that Nancy had complied with the spirit of the obligation. Thus, the court relied on the rules of equity in failing to hold her in contempt.

A court may proceed according to equity only when no rule for a particular situation can be derived from legislation or custom. Wooley V. Lucksinger, 06-1167, 06-1168, 06-1169, p. 12 (La.App. 1 Cir. 5/4/07), 961 So.2d 1228, 1236 n. 10; La. C.C. art. 4. (citation omitted). The October 23, 2001 Consent Judgment that was signed by the trial court and both parties became a legal judgment. As a final, valid judgment, the agreement may be punished by contempt. In re Jones, 10-66 p. 22 (La.App. 5 Cir. 11/9/10), 54 So.3d 54, 68. (citation omitted) (emphasis added). Because a legal remedy exists for willful disobedience of a court order, the trial judge erred by relying on equity to deny the motion.

To find a person guilty of constructive contempt, however, it is necessary to find that he violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Jones, supra, at 67; Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir.3/11/98), 711 So.2d 308, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343.

In New v. New, 93-702 (La.App. 5 Cir. 1/25/94), 631 So.2d 1183, this Court held that the trial court erred by applying equity to find the husband in contempt, further holding that the husband did not willfully disobey the court order. In New, the parties had a consent judgment wherein the husband agreed to pay $600 per month in child support. He then unilaterally decided to pay the $600 house note of the family home in lieu of child support. In New, this court held, “we do not find an unjustified failure in the present case, as it appears Mr. New did not willfully disobey the court order with the requisite intent to disobey.” Id. at 1188.

New is distinguishable from the present case in one main regard. In New, there was evidence in the record to show that the husband actually paid the house note. In this case, however, no such evidence was presented. Although it is undisputed that Nancy did not deposit the $24,000 into the bank account, no evidence was introduced to support her contention that she paid the other expenses. No witnesses testified, and the only statements made were the arguments of counsel.

The burden of proof for civil contempt is by a preponderance of the evidence. Jones, supra, at 67. It cannot be discerned from the record, whether Nancy intentionally, knowingly and purposefully, without justifiable excuse, violated the terms of the consent judgment. The court should have given Manuel the opportunity to meet this burden. Therefore, I would remand the case for an evidentiary hearing to allow Manuel to call his witnesses. Only after hearing the | (¡testimony and reviewing any evidence introduced into the record would the trial court have a legal foundation upon which to base a decision.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cesar A. LOBO.
    No. 11-KA-51.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Scott Schlegel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding, Cesar A. Lobo, defendant/appellant, appeals his sexual battery conviction and his eight-year hard labor sentence imposed without benefit of parole, probation, or suspension of sentence. The state originally charged Mr. Lobo by bill of information with simple rape, in violation of La.R.S. 14:43. A few months before trial, the state amended the bill of information to sexual battery, La.R.S. 14:43.1, a lesser charge. After a trial on the merits, a six-person jury found Mr. Lobo guilty of the amended charge, sexual battery. Mr. Lobo filed timely motions for appeal and to reconsider sentence. Mr. Lobo assigns these errors: (1) insufficiency of the evidence for conviction; (2) error in denying his motion to suppress statements; and, (3) sentencing errors. We affirm lathe conviction. But because the trial judge did not rule on an outstanding motion to reconsider sentence, the sentencing issues are premature and we remand for a ruling on the motion. We also remand for correction of a clerical error in the minute entry/commitment. Facts

On June 7, 2009, Kenner police responded to a call reporting the alleged offense that had reportedly occurred the previous night at a party at the victim’s apartment. At trial the state presented testimony from two police officers, the victim, and the victim’s boyfriend. The state also introduced Mr. Lobo’s police statement into evidence. The defense presented testimony from Mr. Lobo’s sister, wife, and brother-in-law. With the exception of the police officers and Mr. Lobo’s sister, the witnesses testified through an interpreter.

On June 6, 2009, the victim, A.R., (born in Mexico), C.E., the victim’s boyfriend, (from Honduras), and Mr. Lobo, (Mr. C.E.’s uncle), agreed that they, along with others, attended a party at A.R. and C.E.’s Kenner apartment.

A.R. testified that day Mr. Lobo, his wife and his young daughter were present. Along with Mr. Lobo’s sister, and his sister’s husband as well as a friend. According to A.R. and C.E., some of the other partygoers, including Mr. Lobo, began playing card games; however, A.R. (the victim) did not participate because she left the party to go to sleep. According to A.R., she left at 11:00 p.m.

It is undisputed that people were also drinking at the party. A.R. admitted that she drank “three daiquiri bottles” throughout the night, but she was not intoxicated. A.R. further explained that she slept in the dark with the light off, and a thick blanket she threw over the window to further darken the room. When she went to sleep for the night, she left her bedroom door open. A.R. stated that there [4was one upstairs and one downstairs bathroom and people at the party were using the upstairs bathroom throughout the night. In addition, she and C.E. testified that there was a bottle of liquor in the bedroom where she was asleep.

Subsequently, the victim woke with Mr. Lobo on top of her. Her pajamas were no longer on, her pants were down by her knees, and Mr. Lobo was “abusing [her].” She specifically stated that Mr. Lobo was “penetrating [her] vagina,” and that she was menstruating at the time. She further explained that she was sleeping “profoundly,” and she did not know why or when Mr. Lobo entered her room, or how long he was in the room before she awoke. When she felt someone kissing her, she initially thought it was her boyfriend, because he was the only person who enters her bedroom or touches her. But, she realized it was not her boyfriend when she touched his arm, because her boyfriend was wearing a short-sleeved shirt and Mr. Lobo was wearing a long-sleeved shirt. She then told Mr. Lobo he was not C.E. and threw him off of her. She testified that she had not given Mr. Lobo consent to touch her vagina.

C.E. testified that Mr. Lobo left the card table and went to the upstairs bathroom and later returned. Then, Mr. Lobo left the table again, without telling anyone where he was going. At some point, Mr. Lobo’s wife expressed concern about his whereabouts. L.L., (Mr. Lobo’s sister), D.D., (Mr. Lobo’s wife) and J.E.B. (Mr. Lobo’s brother-in-law) testified that they attended the party and Mr. Lobo was absent from the card game less than five minutes.

C.E. stated that when C.E. was looking for Mr. Lobo, C.E. heard a thump when he (C.E.) was walking towards the stairs. “[They] couldn’t find [Mr. Lobo] anywhere, and his car was still there, and [C.E.’s room] was the last place to look.”

A.R. and C.E. testified that C.E. came up the stairs, and opened the then locked bedroom door with a key. C.E. testified that when he entered the darkened Lbedroom and turned on the lights, he saw Mr. Lobo on the floor trying to pull up his pants, including his underwear. A.R. and C.E. stated that Mr. Lobo then said: “hit me, hit me.” In his statement to the police, Mr. Lobo admitted saying that and explained that he felt he had failed his uncle.

C.E. admitted that he did not see Mr. Lobo on top of the victim and he did not know what happened in the room before he walked in. C.E. threw Mr. Lobo out of the apartment.

A.R. testified that after the incident, C.E. placed the bedding sheets and A.R.’s clothes, which had blood on them, in a bag. A.R. and C.E. testified that they did not call the police on the night of the incident because of family concerns. In addition, A.R. stated that she did not call immediately because everyone was blaming her. However, C.E. and A.R. stated that they went to two churches for help and thereafter called the police.

A.R. specifically testified that she did not give Mr. Lobo permission to touch her. The incident continues to affect her. C.E. testified that A.R. was in shock after the incident. A.R. testified that she fears the dark and now locks rooms within the apartment, something she never did before.

Officers Christine Urrata and Detective George Hoffman investigated the incident.

Officer Urrata testified that she has been a patrol officer for the Kenner Police Department for about three and a half years. On June 7, 2009, she responded to a call at a Kenner apartment, with fellow officer, Irma Morehouse. When she arrived at the apartment, the A.R. (the victim) and C.E. (the boyfriend) were present. A.R. appeared to be afraid and timid, and C.E. appeared to be “a little upset.”

| (¡A.R. and C.E. could not speak English, so Officer Morehouse, who was a Spanish speaking officer, communicated with them. After speaking with them, C.E. and A.R. identified Mr. Lobo (C.E.’s nephew) as the person responsible for the incident that occurred the previous day. After Officer Urrata took the victim and the witness’ statements, they directed her to Mr. Lobo’s location. The victim and witness positively identified Mr. Lobo.

Officer Urrata testified that after the victim and witness identified Mr. Lobo, he was advised of his Miranda rights and placed under arrest.

In addition, Mr. Lobo read and signed a consent form, allowing his home to be searched. Crime Scene arrived and took photographs. The objective of the search was to locate the clothing that Mr. Lobo was wearing on the day of the incident. In connection with the investigation, two pair of pants, some underclothes, and a shirt was taken from Mr. Lobo’s home and logged into evidence. Likewise, photographs, a sheet, and clothing worn by the victim were taken from her apartment and logged into evidence.

After a search of Mr. Lobo’s home was conducted, he was placed in a police unit and transported to the police station. Officer Morehouse and Detective Hoffman took the victim to Lakeside Hospital for testing. Officer Urrata later met with Mr. Lobo when he gave a statement to the police.

Detective Hoffman, employed with the Kenner Police Department for about 18 years, testified that on June 7, 2009, he participated in the Lobo investigation. On the day of the incident, he and Officer Irma Morehouse brought the victim to the hospital where a rape kit examination was performed. Detective Hoffman did not know the results. Afterwards, Detective Hoffman went to the Kenner police 17station where he interviewed Mr. Lobo about three hours after Mr. Lobo was taken in custody.

The recorded statement was played for the jury.

In his statement, Mr. Lobo agreed that before taking his statement, Officer Urrata advised him of his constitutional rights from the waiver form, which he signed to voluntarily give the statement. In his statement, Mr. Lobo admitted that he went into the darkened upstairs bedroom to get alcohol and he closed the door. He further stated that he got on top of A.R. and he kissed her. A.R. began unbuttoning his shirt and he started taking her shirt off. Then she started pulling his pants down. At this point, he was kissing her neck and everything. However, he denied that he had an erection or penetrated her. He thought that A.R. believed that he was A.R.’s boyfriend. However, when he kissed her she stated that she thought he was C.E. and said “no, no.” She also started crying. At first Mr. Lobo said she pushed him but later he denied that she pushed him. Nevertheless he stated he fell. Since they were on the second floor, the others in the residence heard him fall. He had blood on his body somewhere below his belly button but above his penis from the menstruating victim. He also stated that his hand had blood on it possibly by his touching his stomach. When asked whether he penetrated her vagina, he replied: “Uh, not really because touching it. But not really. I did not penetrate.” Detective Hoffman testified that Mr. Lobo admitted that his penis and stomach area touched the victim’s vagina but that the penis never penetrated the vagina.

| sSufficiency

Mr. Lobo contends that the state failed to prove beyond a reasonable doubt that a sexual battery took place. He further contends that the victim’s testimony must be evaluated by “the self-described condition” that she was in at the time. Specifically, Mr. Lobo points out that the victim testified that she was “profoundly sleeping” and had consumed alcohol. The state responds that there was sufficient evidence to convict.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. This requirement of La.R.S. 15:438, however, does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884.

On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. State v. Durand, 07-4, p. 8 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Mr. Lobo was convicted of sexual battery in violation of La.R.S. 14:43.1. To support a conviction for sexual battery in this case, the state was required to prove that the defendant intentionally touched the victim’s anus or genitals with an instrument or any part of his body or that the victim touched his anus or genitals with an instrument or any part of her body. The act must be performed without the victim’s consent. La.R.S. 14:43.1.

Since the word “intentional” is included in the above definition of sexual battery without a qualifying provision, this Court has held that, under La.R.S. 14:11, only general criminal intent is required as an essential element of this crime. State v. Stevenson, 05-52, p. 6 (La.App. 5 Cir. 6/28/05), 908 So.2d 48, 52, writ denied, 05-2592 (La.6/2/06), 929 So.2d 1247 (citation omitted). General criminal 110intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences to follow his act. Stevenson, 05-52 at 6-7, 908 So.2d at 53. In other words, general criminal intent is shown by the very doing of the acts which have been declared criminal. Id. (citation omitted).

While the victim testified that Mr. Lobo’s penis penetrated her vagina, Mr. Lobo denied this. Still, he admitted being unclothed and on top of the victim. When asked whether he penetrated her vagina, he replied: “Uh, not really because touching it. But not really. I did not penetrate.” (Emphasis added). According to Detective Hoffman, Mr. Lobo admitted that his penis and stomach area touched the victim’s vagina but that the penis never penetrated the vagina.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier-of-fact. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240, writ denied, 09-2394 (La.10/15/10), 46 So.3d 1282. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id.

In addition, Mr. Lobo argues that the victim could not be certain of the events because she was sleeping and had consumed alcohol. Mr. Lobo cites State v. Mussall, 523 So.2d 1305 (La.1988) and State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, in support of his argument. Specifically, he notes that the Johnson Court commented:

A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988). In absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony if believed by the trier of fact, is sufficient support for a h requisite factual finding. State v. Stec., 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787.

Mr. Lobo further notes that the Mussall Court found that even in a light favorable to the prosecution, a rational trier of fact could not have found defendant guilty beyond a reasonable doubt because of the “numerous eccentricities, unusual coincidences and lack of corroboration.” Mr. Lobo contends that the victim could not be certain of the events that took place because by her own admission she had been drinking and was profoundly asleep. And there was no eyewitness or medical/scientific corroboration.

It is within the jury’s sound discretion to weigh the credibility of the evidence presented. Jones, supra. The jury evidently gave more weight to the fact that the victim woke up with Mr. Lobo on top of her and, according to the victim, his penis was penetrating her vagina. When wakened, A.R. realized that the person on top of her was not C.E. because C.E. was wearing a long-sleeved shirt rather than a short-sleeved 'one. Thus, the jury could have reasonably concluded that although the victim was asleep initially, she woke with full awareness and threw Mr. Lobo off her when he was penetrating her. vagina with his penis. Moreover, A.R.’s testimony concerning penetration is not internally inconsistent. Although there were no eyewitnesses to the actual event, there was sufficient circumstantial evidence corroborating the victim’s account. Mr. Lobo admitted he fell from the bed after the victim refused his advances and others in the residence heard the thumping sound of the fall. He also admitted that he was unclothed and on top of the victim.

After viewing the evidence in the light most favorable to the state, a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to support the conviction of sexual battery.

| i2Thus, this assignment of error lacks merit.

Suppression

The State has the burden of proving the admissibility of a purported confession or statement by the defendant. State v. Arias-Chavarria, 10-116, p. 11 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 433, writ denied, 10-2432 (La.2/25/11), 58 So.3d 460, citing LSA-C.Cr.P. art. 703(D). Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Arias-Chavarria, 10-116 at 11-12, 49 So.3d at 433, citing State v. Franklin, 03-287, p. 4 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817; LSA-R.S. 15:451; State v. Blank, 04-0204, pp. 9-10 (La.4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. Arias-Chavarria, 10-116 at 12, 49 So.3d at 433, citing State v. Mackens, 35,350, p. 13 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37.

The admissibility of a confession or statement is a determination for the trial judge and the judge’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id., citing Franklin, supra. In addition, a trial court’s determination on the motion to suppress should not be disturbed on appeal, unless it is clearly wrong. State v. Addison, 08-461, p. 12 (La.App. 5 Cir. 2/10/09), 8 So.3d 707, 716.

Mr. Lobo argues now for the first time on appeal that the state never asked whether or not Mr. Lobo understood English, the form was not printed in Spanish, and Officer Urrata was not bilingual as evidenced by the necessity of another police officer to act as a translator in interviewing the victim. He argues that it should have been determined that Mr. Lobo could read and write the English language.

A defendant bears the burden of asserting the basis for his motion to suppress in order to give the State adequate notice so that it may present evidence and address the issue. State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (citing in part La.C.Cr.P. art. 703(E)). After the defendant files a motion to suppress, the state has the burden to prove the defendant’s confession was of a free and voluntary nature. La.C.Cr.P. art. 703(D). Therefore, the defendant is limited, on appeal, to the grounds he articulated at trial; a new basis for the claim, even if it would be meritorious, cannot be raised for the first time on appeal. Id.

In this case, in his motion to suppress the confession, Mr. Lobo failed to raise the argument that Mr. Lobo was never questioned as to whether he could read and write the English language. In the proceedings below Mr. Lobo did not present any evidence, or argument at the motion to suppress hearing regarding this specific ground for suppression that he now argues on appeal. Accordingly, these grounds are not properly before this court. But even so, the advice of rights/waiver form contains Mr. Lobo’s signature acknowledging that he understood what the officer read to him from the form. The form also included Mr. Lobo’s | ^acknowledgement that he had the ability to read and write and completed the 12th grade. Thus, the officer ascertained that Mr. Lobo could read and write and understood the English language. Further, at trial, Officer Urrata stated that Mr. Lobo spoke English.

Mr. Lobo argues now as he did below that the state failed to prove that Mr. Lobo gave a free and voluntary statement or that Mr. Lobo was adequately advised of his Miranda rights. He asserts that even assuming those warnings were given, that fact alone does not establish a knowing or intelligent waiver of those rights. He contends that at most the state proved that Mr. Lobo was read unspecified rights since the state failed to articulate what rights were provided to Mr. Lobo, what rights may have been contained on the form, and what rights Mr. Lobo actually waived. The state disagrees.

Mr. Lobo relies on the evidence and testimony presented at the pretrial suppression hearing. At the suppression hearing, only Officer Urrata testified while at trial, Officer Urrata and Detective Hoffman testified.

At the suppression hearing, Officer Ur-rata stated that she was employed with the Kenner Police Department for about three and a half years. She testified that on June 6, 2009, she was the reporting officer in reference to a simple rape allegation against Mr. Lobo. Before taking Mr. Lobo’s taped statement, Officer Urrata advised him of his rights. Mr. Lobo stated that he understood his rights and waived them. In addition, Mr. Lobo signed the Advice of Rights Form indicating such. Officer Urrata stated that she asked Mr. Lobo the questions from the form, he advised of the answer, and she physically marked the appropriate answer with an “X” on the form. Mr. Lobo was then allowed to re-read the form. Then he signed it.

| iSThe form was introduced into evidence at the suppression hearing. According to the form, Mr. Lobo acknowledged that he understood the following rights that the officer read to him:

1. You have the right to remain silent.
2. Anything you say may be used against you in court.
3. You have a right to consult with and obtain the advice of an attorney before answering any questions.
4. If you cannot afford an attorney, the court will appoint an attorney to represent and advise you.
5. You have a right to have your attorney present at the time of any questioning or giving of any statement.
6. If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

According to the form, Mr. Lobo acknowledged that he understood what was read to him and he was willing to answer questions at that time without a lawyer. He also acknowledged that no threats or promises had been made to him nor was any pressure of any kind applied to induce him to answer questions or to give up any of his rights. Then, he acknowledged that with full knowledge of his rights, he wanted to waive all privileges against self-incrimination and make a statement about his knowledge of the crime.

Additionally, Officer Urrata testified at the suppression hearing that neither she nor Detective Hoffman, who questioned Mr. Lobo, threatened, coerced, or forced Mr. Lobo to give a statement; nor did they promise him anything in exchange for his statement. Officer Urrata was present when Mr. Lobo gave his taped statement to Detective Hoffman. Detective Hoffman also discussed the Advice of Rights Form with Mr. Lobo, prior to questioning him.

At trial, Officer Urrata and Detective Hoffman testified.

Officer Urrata’s testimony was substantially similar to her testimony given at the suppression hearing. She testified that after the victim and witness identified Mr. Lobo, he was advised of his Miranda rights and placed under arrest. 1 ^Specifically, Mr. Lobo was advised that: “... he had the right to remain silent. Anything he said could be used against him in the Court of law. He had a right to an attorney. If he could not afford an attorney, one would be appointed to him.” Officer Urrata further stated that Mr. Lobo spoke English, and he advised her that he understood his rights.

Officer Urrata testified at trial that at the police station, Officer Urrata advised Mr. Lobo of his rights for a second time, using a form. Officer Urrata read the form to him and Mr. Lobo signed the form acknowledging that he understood his rights and, further, that he was waiving them. The form was introduced into evidence at trial without objection and provided to the jury. After Mr. Lobo completed the form, his taped statement was taken by Detective Hoffman. In addition, Officer Urrata asserted that Mr. Lobo was not forced, threatened, or coerced into giving a statement.

Detective Hoffman testified that before speaking to Mr. Lobo, around 2:00 a.m., he made certain Mr. Lobo understood his rights. Specifically, he made sure he was the person that signed the form and that he did understand his rights. He did not force, threaten, or promise Mr. Lobo anything in exchange for the statement. Mr. Lobo waived his rights and gave a recorded statement.

Mr. Lobo cooperated with the investigators and gave a statement, which was recorded and transcribed. In addition, Detective Hoffman stated that he did not force, threaten, coerce, or promise defendant anything in exchange for his statement.

As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress. State v. Sherman, 04-1019, p. 1 (La.10/29/04), 886 So.2d 1116, 1116 (per curiam) and the cases cited therein. This review may provide supplemental | ^information relevant to the suppression issue. Id. In many cases the testimony at trial may not diverge from the evidence adduced at a pretrial hearing on a motion to suppress. Id. at 2, 886 So.2d at 1116.

We have reviewed supplemental information given at the trial relevant to the suppression issue. That evidence, does not, however, affect the result we reach.

At the suppression hearing, although Officer Urrata did not articulate the specific rights during her examination, she nonetheless referenced the form that Mr. Lobo signed. That form, which she read fully to him, sets forth a complete recitation of the Miranda rights, Mr. Lobo’s understanding of these, and his non-coerced waiver. Under the totality of circumstances presented at the suppression hearing, there was evidence showing that Mr. Lobo’s signed a written waiver of his Miranda rights and his statement was intelligently and voluntarily made.

Nevertheless, we have taken into consideration the trial testimony. That testimony is consistent with the evidence presented at the suppression hearing. All of the testimony and evidence at the suppression hearing and at trial supports the trial judge’s denial of the motion.

Thus, this assignment of error lacks merit.

Sentencing/Error Patent

Mr. Lobo argues that the district court erred in denying his motion to reconsider his eight-year sentence because it was excessive. The state responds that the record fails to reflect that the trial court ruled on the motion. Therefore, it is premature to address Mr. Lobo’s excessive sentence claims. We agree that the sentencing assignments are premature.

We reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We found, based on the record before us, that the trial judge failed to rule on the motion to reconsider sentence.

La.C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the district court with instructions to supplement the record or to hold an evidentiary hearing.” When an appellant alleges a sentencing error on appeal along with one or more additional errors, and when the trial court has failed to rule on the appellant’s timely motion to reconsider sentence, this Court has ruled on the merits of the other assignments and remanded for a ruling on the outstanding motion. State v. Mosley, 10-266, p. 7 (La.App. 5 Cir. 11/9/10), 54 So.3d 692, 697.

Thus, we remand for a ruling on the motion to reconsider sentence with these instructions:

If the motion to reconsider is granted and the defendant is re-sentenced, he may appeal the new sentence. If the motion is denied or if it has already been ruled on, the defendant must move to re-lodge this appeal within sixty days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later.
State v. Bolden, 03-266, p. 22 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050, 1065.

The record also reveals that the commitmentyminute entry incorrectly reflects that Mr. Lobo entered a plea and that he was advised of his rights in connection with that plea. Rather, Mr. Lobo was found guilty after a jury trial. This error is clerical. Since a clerical error does not cause prejudice to a defendant’s rights, such error does not merit reversal. State v. Quest, 00-205, p. 10 (La.App. 5 Cir.10/18/00), 772 So.2d 772, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866, citing State v. Gilmore, 522 So.2d 658, 661 (La. App. 5 Cir.1988). However, we will order an amendment of the minute entry/commitment to delete the reference to a plea.

1,Accordingly, we hereby order that the minute entry/commitment be amended to reflect a jury trial, in conformity with this opinion.

Furthermore, we direct the clerk of court to transmit the original of the minute entry/commitment to the officer in charge of the institution to which Mr. Lobo has been sentenced, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam), and to the legal department, the Department of Public and Safety Corrections (DOC).

Conclusion

For the foregoing reasons, the defendant’s conviction is affirmed. We remand with instructions for a ruling on the motion to reconsider sentence. We also remand this matter for the trial court to amend the minute entry/commitment as ordered.

AFFIRMED; REMANDED

      . The state notes that the trial judge sentenced Mr. Lobo to the Department of Corrections rather than “hard labor.” Because La. R.S. 15:824(C) provides that "only individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections,” the trial judge clearly imposed a hard labor sentence.

      . See sentencing assignments of error for further discussion on this matter.

      . Mr. Lobo states in brief that one of the issues is whether the trial court correctly instructed the jury as to the applicable law. He does not, however, list that as an assignment of error nor does he brief the issue. "The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules-Courts of Appeal, Rule 2-12.4. Therefore, we deem the jury charge issue abandoned.

      .In compliance with La.R.S. 46:1844(W), several names are replaced with initials to protect the victim's identity.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.


author: FREDERICKS. HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Lance BUSH.
    No. 11-KA-257.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for PlaintiffiAppel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKS. HOMBERG WICKER, Judge.

|2Lance Bush, defendant/appellant, appeals his guilty plea convictions and sentences. Mr. Bush pleaded guilty to armed robbery and second degree kidnapping (as amended) and was sentenced in accordance with a plea agreement. His appellate counsel has filed a motion to withdraw together with an Anders and Jyles brief in support of the motion, stating that no non-frivolous issues exist which arguably support an appeal. After an independent review of the record, we agree that no non-frivolous issues exist. Therefore, we grant the motion to withdraw. We affirm Mr. Bush’s convictions and sentences and remand to the district court for correction of the commitment.

Facts and Procedural History

Mr. Bush, along with the codefendant Bryant J. Hulitt, was indicted by a Jefferson Parish Grand Jury with one count of armed robbery in violation of |?,La.R.S. 14:64 and one count of aggravated kidnapping in violation of La.R.S. 14:44. This appeal only concerns Mr. Bush. Before entering guilty pleas, trial counsel and Mr. Bush (in a pro se capacity) filed several pretrial motions. Defense counsel’s motions were continued to be reset and never heard. The trial court, however, denied Mr. Bush’s motion to quash in which he sought release from custody without bail. The court noted that Mr. Bush was represented by counsel. Later, pursuant to a plea agreement, Mr. Bush was sentenced to negotiated and stipulated sentences. In conformity with the plea agreement he received 15-year concurrent sentences at hard labor for each of two counts as charged or amended in the indictment. On the date of the pleas, the state had amended the second count from aggravated kidnapping to the lesser responsive charge, second degree kidnapping, La.R.S. 14:44.1, as to Mr. Bush only. La.C.Cr.P. art. 814(A)(18) (responsive verdicts). The sentence on the first count, armed robbery, was ordered (as agreed) to be served without benefit of parole, probation, or suspension of sentence. The first two years of the second degree kidnapping sentence was ordered (as agreed) to be served without benefit of parole, probation, or suspension of sentence. Mr. Bush testified that he understood that based on his plea agreement to testify truthfully (and consistently with his prior police statements) in Bryant J. Hulitt’s (his codefen-dant’s) trial, his failure to comply with that agreement meant that the state had a right to ask that the sentences be vacated and that the matter be set for further proceedings, including the trial on the merits of the case.

During the plea colloquy, Mr. Bush admitted that on December 20, 2006 he robbed Keith Blackstock while armed with a dangerous weapon, a firearm. And, on the same date he committed a second degree kidnapping of Keith Blackstock by removing Mr. Blackstock from one location and taking him to another location |4while armed with a dangerous weapon. He further admitted that he demanded that money be produced after taking Mr. Black-stock from one location to another.

At the plea hearing, defense counsel provided the court with a contemporaneously-executed waiver of constitutional rights form.

Thereafter, Mr. Bush sought and was granted production of the plea and sentencing transcript. At the time, Mr. Bush stated his pleas were constitutionally infirm and he intended to seek post-conviction relief. Next, this appeal followed the granting of Mr. Bush’s application for post-conviction relief seeking an out-of-time appeal. The trial court appointed the Louisiana Appellate Project to represent Mr. Bush.

Anders Brief Analysis

Appellate counsel has filed a Jyles brief, seeking to withdraw because there are no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241(per curiam); and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir.1990). When appointed counsel has filed such a brief, Anders requires that counsel move to withdraw. Benjamin, 573 So.2d at 531.

The brief outlines the procedural history and the Boykin compliant plea colloquy leading to Mr. Bush’s convictions. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra, citing State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam). Counsel further states that she notified Mr. Bush of the filing of the motion to withdraw and advised him of his right to file a pro se brief in this appeal, all in accordance with Anders, Jyles, and Benjamin, supra. This Court provided Mr. | sBush with the record, as he requested, and Mr. Bush has had an ample opportunity to file a brief, but has not done so.

When an Anders brief is filed, the appellate court must conduct an independent review of the record. State v. Haynes, 09-109, p. 15-16 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 335, writ denied, 10-0493 (La.9/24/10), 45 So.3d 1073. After a full examination of all the proceedings, the appellate court proceeds to determine whether the case is wholly frivolous. Anders, supra, 87 S.Ct. at 1400. If it so finds, it may grant counsel’s motion to withdraw. Id. The motion will not be acted upon, however, until the appellate court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his own behalf. Benjamin, supra at 531.

In this case, we find that appellate counsel has complied with the requirements set forth in Anders. Appellate counsel found that nothing in the plea colloquy suggested the plea was not knowingly and intelligently made. On the contrary, she found that the trial court adequately advised Mr. Bush of the Boykin triad of constitutional rights (his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination), the constitutional rights he was relinquishing, the sentencing ranges, and the sentences he would receive. Further, counsel noted that Mr. Bush did not reserve his right to have the trial court’s pretrial ruling reviewed on appeal. Also, counsel stated that Mr. Bush is now restricted by La. C.Cr.P. art. 881.2(A)(2) from appealing his sentences.

We will proceed with an independent review of the record. This review in the present non-jury case consists of:

|fil) a review of the bill of information or indictment to insure the defendant was properly charged; 2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, and a review of the sentences to ensure their legality; 3) a review of all pleadings in the record; and, 4) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

Benjamin, supra at 531.

Our review of the record supports appellate counsel’s assertion that no non-frivolous issues arguably support an appeal.

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

A plea, however, cannot be considered voluntary without notice of the essential nature of the charge or charges. See: State ex rel Halvorsen v. Blackburn, 388 So.2d 806, 807 (La.1980) quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-2258, 49 L.Ed.2d 108 (1976). Although twice during the plea colloquy the judge misspoke and referred to the second degree kidnapping charge as second degree battery, the entire colloquy and the contemporaneous waiver form indicate that Mr. Bush was aware that he was pleading guilty to second degree kidnapping. At the outset, Mr. Bush’s informed the court that Mr. Bush would withdraw his former pleas of not guilty and enter pleas of guilty to one count of armed robbery and guilty to the amended charge of second degree kidnapping. Next, the trial judge advised Mr. Bush that his attorney indicated he wished to plead guilty to armed robbery and second degree kidnapping. The trial judge explained to Mr. Bush the offenses with which he was charged, the sentencing range for armed robbery and statutory restrictions, the mandatory 17minimum sentence for second degree kidnapping and the statutory restrictions, and the sentences he would receive pursuant to the agreement. The trial judge asked Mr. Bush if he had discussed these charges with his attorney and understood the nature of the charges against him as well as the possible penalties. Mr. Bush agreed that this was the case. Thus, we find that despite the trial judge’s inadvertent references to second degree battery, Mr. Bush was fully advised of the nature of the charge and therefore the trial judge did not err in accepting the guilty plea to second degree kidnapping as voluntarily and knowingly entered. As the transcript of Mr. Bush’s guilty plea colloquy clearly reflects, all constitutional requirements for accepting Mr. Bush’s guilty pleas were satisfied.

Moreover, it is well settled that entry of an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal, or where appeal is unavailable, by supervisory review. State v. Moore, 420 So.2d 1099, 1100 (La.1982) citing State v. Crosby, 338 So.2d 584 (La.1976). Mr. Bush entered unqualified guilty pleas, thereby waiving any pre-plea non-jurisdictional defects, which would have included the ruling denying his motion to quash. State v. Crosby, 338 So.2d 584 (La.1976). We find no jurisdictional defects in this case nor do we find non-frivolous issues as to the pretrial ruling to arguably support an appeal.

With regard to his sentences, Mr. Bush received legal sentences since they fall within the sentencing ranges prescribed by statute. La.R.S. 14:64(B) and La.R.S. 14:44.1(0). Further, Mr. Bush’s sentences were imposed pursuant to a plea agreement and he received sentences in conformity with the agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. See State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Thus, we find that an argument for excessive sentences on these convictions would be frivolous and futile.

Accordingly, we find there are no non-frivolous issues to raise on appeal. For the foregoing reasons, the convictions and sentences are affirmed. The motion to withdraw as counsel is granted.

Error Patent Discussion

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

Upon review, we find two errors patent requiring corrective action.

First, the minute entry/commitment must be corrected to reflect the proper offense to which Mr. Bush pleaded guilty to and for which he was sentenced. According to the transcript, Mr. Bush pleaded guilty and was sentenced to the amended charge of second degree kidnapping. However, the minute entry/commitment reflects that he pleaded guilty to and was sentenced to the original charge, aggravated kidnapping. When there is a conflict between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

We remand this matter for correction of the minute entry/commitment, and direct the district court to make the entry in the minute entry/commitment reflecting that Mr. Bush pleaded guilty and was sentenced to the amended charge of second degree kidnapping. We direct the clerk of court to transmit the original of the respective commitment/minute entry to the officer in charge of the institution to which Mr. Bush has been sentenced, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam), and to the legal department, the Department of Public and Safety Corrections (DOC).

Second, we find inconsistent advice as to the prescriptive period for filing a post-conviction application.

The waiver of rights form contains an incomplete advisal, that Mr. Bush had “two (2) years to file post conviction relief,” rather than indicating when the time delay commenced to run.

During the colloquy, before imposing sentence, the trial judge properly advised Mr. Bush of the prescriptive period pursuant to La.C.Cr.P. art. 930.8(A). However, because the written advisal in this case was inconsistent with that given during the colloquy and potentially misleading, we advise Mr. Bush of the prescriptive period by means of our opinion. State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272:

No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following [enumerated exceptions] apply[.]
La.C.Cr.P. art. 930.8(A).

Decree

Because the record reveals no non-frivolous issues and no ruling which arguably supports an appeal, Mr. Bush’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw is granted. The matter is remanded to the district court with instructions for correction of the minute entry/commitment.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS

      . The firearm enhancement under La.R.S. 14:64.3 was presumably dropped as the charge did not appear on the waiver of rights form or during the plea colloquy with the trial judge.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . We mailed Mr. Bush a certified letter informing him that his appellate counsel filed a brief with this Court stating that no non-frivolous issues exist for this Court to review on appeal. We also informed him that he could file a supplemental brief on his own behalf. Thereafter, Mr. Bush requested the record. We granted him until May 2, 2011 to file a supplemental brief.

        . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Shawn SIMPSON.
    No. 2011-KA-0370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 26, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

|2Shawn Simpson appeals his guilty plea and sentence of five years imprisonment, to one count of possession with the intent to distribute marijuana. He contends that the trial court erred by denying his motion to suppress the evidence. We find that Simpson’s claim has merit. Thus, we vacate his plea of guilty, grant his motion to suppress evidence, and remand.

The State of Louisiana charged Shawn Simpson with one count of possession with the intent to distribute marijuana. The court heard and denied his motion to suppress the evidence. Simpson sought writs in this court, which this court denied, noting that he had an adequate remedy on appeal if he was ultimately convicted. State v. Simpson, unpub., 2010-1191 (La. App. 4 Cir. 9/2/10). Simpson withdrew his prior plea of not guilty and pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the district court’s denial of his motion to suppress the evidence. Simpson waived all delays, and the court sentenced him to serve five years at hard labor. This timely appeal followed.

laThe only witness at the motion to suppress hearing was Officer Adrian Chapital, who testified that he was working in the Eighth District when he arrested Simpson. He testified that he and his partner were on regular patrol when they saw Simpson in the general area around Bourbon Street. One of the instances when they saw Simpson was on St. Peter Street between Royal and Bourbon Streets. Officer Chapital testified that Simpson “approached a white female and a white male” and asked them a question. The couple walked away, and Simpson followed. Simpson turned onto Bourbon Street, apparently no longer following the couple. Officer Chapital testified that Simpson did this after “he looked like he saw” the officers. Later, Officer Chapital saw Simpson in the 600 block of Royal Street “where he was with another white male.” This time, Officer Chapital and his partner “elected to stop him to find out what was going on.” The officer testified that they decided to stop Simpson because they “thought he was either baiting [sic] or participating in some type of illegal activity”

After Officer Chapital and his partner stopped Simpson, Officer Chapital noticed a “bulge inconsistent with human anatomy in the front waistband of his [Simpson’s] pants.” He conducted a frisk and “felt a hardened object in the waistband.” Officer Chapital removed the object from Simpson’s waistband and discovered that it was a Crown Royal bag. He opened the bag and discovered “a bag of marijuana wrapped tightly in a rectangular shape.” Several small baggies containing marijuana were also inside the Crown Royal bag. The officers also seized $97.00 from Simpson. After Simpson had been arrested, he was transported |4to Central Lockup where the jail authorities discovered additional marijuana and money.

During cross-examination, Officer Cha-pital, who testified that he had been on the police force for three years, admitted that a supervisor required him to write a supplemental police report because neither the “gist” sheet he completed nor the first report he wrote set out any of the observations that allegedly led to the investigatory stop of Simpson. Officer Chapital testified that he wrote in the gist and his first report that he and his partner had only approached Simpson “to conduct a field interview,” and not because he was suspected of begging. The officer further testified that his initial report was approved by his supervisor, but then another supervisor asked him “to clarify further,” and Officer Chapital wrote the final report ten days after Simpson’s arrest.

Officer Chapital’s final report reflected that he and his partner saw Simpson a total of three times, and that each time he was “interacting with different people”. The officer testified that the reason for stopping Simpson was because “he had interacted with several different people around” Bourbon and Royal Streets. None of the information or basis for a stop was included in any official report except the final one written for clarification purposes.

Officer Chapital admitted that the officers had not received any complaints or calls about Simpson, nor did they see Simpson engaged in any activity which appeared to be drug transactions, and they did not see any currency exchanged between Simpson and the persons with whom he interacted. All the officers saw |fiwas Simpson walk up and talk to various people. When asked if Officer Chapital had a hunch that Simpson was engaged in some type of illegal activity, Simpson replied to defense counsel, “[i]f you want to call it that, yes, sir.” The officer acknowledged that he had no “foundation to believe he [Simpson] was doing anything illegal other than” his own belief.

Officer Chapital also testified that he and his partner twice tried to stop Simpson, but were unsuccessful the first time. He testified that the police car was three or four car lengths from the intersection of St. Peter and Bourbon Streets when Simpson “looked back, and he got onto Bourbon Street.” The officers exited the police vehicle to stop Simpson, but they could not find him in the crowd on Bourbon Street. When they were able to stop him later, they walked up to him and said that they needed to talk to him; but that Simpson was not free to leave.

Finally, Officer Chapital admitted during cross-examination that the bulge he saw in Simpson’s waistband was rectangu-larly shaped; it looked like a square, not like a firearm. Nevertheless, Officer Cha-pital testified that he believed the object was a weapon, and for the same reason, once he had retrieved the purple bag from Simpson’s waistband, Officer Chapital opened the bag and found the marijuana.

Finally, after Officer Chapital testified, defense counsel attempted to argue the issues concerning the motion to suppress to the trial court. However, the court refused to allow argument, telling defense counsel to look at the people in the court room. The court told counsel, “Save it when they come up. All right? Court finds | r,probable cause. Motion to suppress is denied. In so many words, save it when you do your jury trial. All right? Now, I need to get those ladies and gentlemen.”

By his sole assignment of error, Simpson contends that the trial court erred by denying his motion to suppress the evidence. Specifically, he argues that the officers did not have reasonable suspicion of criminal activity to stop him. He further argues that the seizure of the Crown Royal bag from his waistband exceeded the scope of a frisk that is authorized during an investigatory stop, and the officer was not justified in opening the bag to examine its contents. This assignment of error has merit.

“A police officer does not need probable cause for arrest or reasonable suspicion for an investigatory stop to approach a citizen in public.” State v. Marzett, 2009-1080, p. 8 (La.App. 4 Cir. 6/9/10), 40 So.3d 1204, 1210. As this Court further noted:

No violation to a person’s liberty or privacy occurs when a police officer attempts to talk to him, as long as that individual is free to disregard the questioning and walk away. Id. [State v. Press, 767 So.2d 56 (La.App. 4 Cir. 2000) ] A person is “seized” for purposes of La. Const. Art. 1, Sec. 5, when he is either ‘actually stopped’ or when an actual stop is ‘imminent.’ State v. Bacuettes [Bacuetes], 2000-1053, p. 5 (La. App. 4 Cir. 10/18/00), 772 So.2d 813, 815, citing State v. Belton, 441 So.2d 1195 (La.1983).

Marzett, 2009-1080, pp. 8-9, 40 So.3d at 1210.

The Louisiana Supreme Court has divided encounters between police and citizens into three “tiers.” State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. The court described the lowest two tiers of interaction as follows:

In United States v. Watson, 953 F.2d 895, 897 n. 1 (5th Cir.1992), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992), the court articulated a useful three-tiered analysis of interactions between citizens and police under the Fourth Amendment. At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. Id.; State v. Britton, 93-1990 (La.1/27/97); 633 So.2d 1208, 1209 (noting that police have the same right as any citizen to approach an individual in public and to engage him in conversation under circumstances that do not signal official detention).
At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Watson, 953 F.2d at 897 n. 1; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)(citing Terry, 892 U.S. at 27, 88 S.Ct. 1868); State v. Moreno, 619 So.2d 62, 65 (La.1993). See also La.Code Crim. Proc. art. 215.1(A), which provides that an officer’s reasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is “insufficient to justify custodial interrogation even though the interrogation is investigative.” Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Fisher, 97-1133, pp. 4-5, 720 So.2d at 1182-1183,

In State v. Hamilton, 2009-2205 (La.5/11/10), 36 So.3d 209, the court held that police officers did not seize the defendant, for constitutional purposes, when they called to him; after initially walking away, the defendant chose to walk back to the officers and removed his hands from his pockets at the officers’ request. As the defendant took his hands out, a foil of cocaine fell to the ground. The court opined that the officers’ “request for the defendant to remove his hands from his pockets was not coupled with any search, pat down, or intrusion into the privacy of the defendant,” and thus, the evidence was “abandoned prior to any lawful |8intrusion into the defendant’s right of freedom from governmental interference” and was lawfully seized. Id., pp. 6-7, 36 So.3d at 213-14. Stated in another way, the contact between the defendant and the police fell within the first tier of interaction described in Fisher.

The second tier of contact, a Terry or investigatory stop, was discussed by the Louisiana Supreme Court in State v. Temple, 2002-1895 (La.9/9/03), 854 So.2d 856:

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen in a public place and question him, the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 [889] (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983). If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La. C.Cr.P. art. 215.1(B). Determining whether “reasonable, articulable suspicion” existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La.1982).
In making a brief investigatory stop on less than probable cause to arrest, the police “‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore “articulate something more than an “ ‘inchoate and unparticularized suspicion or “hunch.”’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.
In determining whether the police possessed the requisite “‘minimal level of objective justification’ ” for |flan investigatory stop based on reasonable suspicion of criminal activity, Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.

Temple, 2002-1895, pp. 4-5, 854 So.2d at 859-860.

In Temple, the Supreme Court affirmed this Court’s decision holding that police officers lacked reasonable suspicion to stop and frisk the defendant and his companions. The officers were responding to a call of an attempted burglary by four individuals. They observed the defendant and three other people sitting on a porch step of the apartment building. When one of the people observed the police, he quickly leaned against a wall. A second person, a female, sat down, and the defendant sat next to her. The officers saw the defendant hand the female a white object, which she placed in her pocket and then got up and walked away. All four people were detained by the police. A frisk of the female resulted in the seizure of a large quantity of crack cocaine. The Supreme Court stated that reasonable suspicion required more than “looking nervous” and “sitting on a porch step” in an area noted for its “high crime.” Temple, p. 7, 854 So.2d at 861. The court noted that the victim of the alleged burglary did not provide descriptions, and “there was no suspicion that the individuals herein were even involved in that crime or any | mother wrongdoing. We must presume that citizens are law abiding, even those in public housing developments and other targeted high crime areas.” Id. Finally, the court further held that there was no basis for a frisk or search of the suspects.

In the instant case, Officer Chapi-tal’s testimony was very brief as to the nature of the initial contact between Simpson and the officers. The officer testified that he and his partner “elected to stop” Simpson and that “upon stopping him ... I immediately noticed a bulge....” The officer did not provide any details of how the stop was accomplished, whether they merely asked Simpson to speak to them, or whether they physically took custody of him. However, once Officer Chapital frisked Simpson, the encounter clearly reached the level of an investigatory stop for which reasonable suspicion of criminal activity was necessary. Temple. Also, in order to lawfully frisk Simpson, Officer Chapital must have reasonably believed that he was in danger or that Simpson was armed. La.C.Cr.P. art. 215.1(B); Temple.

Simpson argues that Officer Chapital had no reasonable basis to suspect that he was committing a crime. The only activity to which the officer testified observing was Simpson’s interaction with people in the well-visited area of the French Quarter. Interestingly, the most detailed description offered was that Simpson walked up to a white couple, spoke with them, and briefly followed them as they walked away. As discussed above, it is not considered an invasion of anyone’s right to privacy if a police officer approaches him in a public setting and asks to speak with that person. It is difficult to conclude that it is a crime if a Inprivate citizen similarly seeks to approach a person on a street and asks to talk to them when there is no evidence that the defendant was seeking to engage in a criminal act, such as a drug transaction, with that person, and where the defendant did not prevent the person from choosing to ignore him by walking away.

Officer Chapital admitted that he had no foundation for his suspicion that Simpson was engaged in criminal activity. Further, if he had such a basis, he failed to articulate the facts beyond a generalized hunch. The officer did not articulate any behavior by Simpson which indicated he had committed or was about to commit a crime. The officer did not identify the area as a high crime area known for any narcotics transactions, robberies, or any other crimes. Officer Chapital’s most detailed description of any facts was that Simpson was interacting with white people. The record does not indicate Simpson’s race. However, Officer Chapital did not explain the significance, if any, in the fact that Simpson’s race differed from those of the people with whom he interacted, or how that racial difference, in the officer’s experience, indicated that Simpson was engaging in criminal activity. Also, Officer Cha-pital did not describe Simpson to the court. He did not testify that Simpson appeared homeless, intoxicated, or mentally ill, such that he might have been violating an ordinance against public intoxication or disturbing the peace. From the transcript it is impossible to tell if Simpson was a beggar asking for money or a religious provocateur trying to convince people not to sin on Bourbon Street.

|12There have been innumerable cases addressing the issue of reasonable suspicion. A review of many of those cases shows that the State failed to demonstrate that the police officers had reasonable suspicion in this case because of the lack of indicia of criminal activity.

In State v. Vingle, 2001-0840 (La.App. 4 Cir. 11/21/01), 802 So.2d 887, this Court held that the police lacked a basis for an investigatory stop of a white female driving a new vehicle with a temporary tag during the daytime hours who pulled her car over in front of the house of a known drug dealer. Although one officer later testified that they were investigating an individual who was selling temporary license plates in the neighborhood, he also admitted that many white people drove through the area as a shortcut from the neighboring parish to a nearby commercial area. However, another officer testified that many white people also drove into the area to purchase narcotics. This Court summarized the facts, in its finding that there was an insufficient basis for the investigatory stop, as follows:

[Tjhere was no evidence of evasive conduct on the part of the defendant. She did not appear intoxicated. She was simply driving through a neighborhood in the broad daylight at 10:00 a.m. She pulled over when a police car appeared behind her, was stopped, and ordered out of the car. She did not attempt to flee, and she did not disobey an order to stop. There was no testimony that she made any furtive movements such as trying to hide something under the seat. Before being stopped, she did not appear nervous or give a startled look. At the time of the stop, there was no evidence of a gun and no evidence of paraphernalia. There was no tip from any informant that she was engaged in any suspicious behavior at all. As such, there could be no corroboration. The officers stopped the defendant for two simple reasons: she was a white woman in a black | ^neighborhood, and she was driving a brand new car with temporary plates.

Vingle, 2001-0840, pp. 8-9, 802 So.2d at 892.

In contrast, in State v. Pautard, 485 So.2d 909 (La.1986), the Supreme Court found that an investigatory stop was justified where an experienced police officer saw a vehicle occupied by a white male and a white female parked at a closed service station in an area of Baton Rouge known as a “shooting gallery” or an area of heavy narcotics activity. The officer observed a black male approach the parked vehicle and engage in a conversation with the occupants. Because it was dark, the officer could not see if any specific items were exchanged. However, as the vehicle started to drive away, the occupants saw the police officer. The officer signaled the car to stop, but it did not do so for several blocks. During that time, the officer observed the passenger apparently eating something. A full investigatory stop resulted. In considering whether the initial stop was lawful, the court concluded that it was lawful, in light of the officer’s experience and the defendants’ action even though the officer could never state he actually anything exchanged. See also State v. Wilson, 2000-0178 (La.12/8/00), 775 So.2d 1051, in which the court found that the extensive experience related by the police officer was sufficient to validate the investigatory stop; the officer explained why and how the race of one of the suspects factored into his suspicion that he had seen a drug transaction and also articulated several facts which also entered into his reasoning.

We agree with the court of appeal that “the fact a white man is walking in a predominantly black high crime or drug trafficking area does not constitute reasonable cause to stop him.” [State v.] Wilson, 99-2392 at 7 [ (La.App. 4 Cir. 12/22/99), 759 So.2d 351]. See United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982) (“Race or color alone is not a sufficient basis for making an investigatory stop.”) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S.Ct. 2574, 2582-83, 45 L.Ed.2d 607 (1975)). Officer Michael Glasser was therefore not entitled to act solely on the basis of his “extensive experience in purchasing narcotics” in the area of the Iberville Housing Project in New Orleans, “that it’s an unfortunate but a common occurrence that white people will go into the [area] in an effort to try to obtain contraband that they cannot get elsewhere, or feel that they can’t get elsewhere.” However, the officer made clear in his testimony at the suppression hearing that while racial incongruity “did factor in,” he considered other circumstances more important in his decision to make an investigatory stop.

Wilson, 2000-0178, pp. 1-2, 775 So.2d at 1052.

In its response, the State first argues that the officers did not need reasonable suspicion to approach Simpson and ask him questions. However, the officers did more than just approach him; they stopped and frisked him, turning the encounter into an investigatory stop for which they needed reasonable suspicion of criminal activity. The State also points to the fact that Simpson approached several people who attempted to walk away from him, and upon seeing the officers approaching, he fled. However, the officers testified that Simpson turned onto Bourbon Street when he “apparently” saw the police vehicle. The State characterizes the location of the stop as a high crime area, but there was no testimony to support this characterization.

In the instant case, considering the lack of articulated facts which demonstrates that Officer Chapital and his partner reasonably suspected Simpson of criminal activity, the officers lacked a valid basis to conduct an investigatory stop of Simpson.

In State v. Sims, 2002-2208 (La.6/27/03), 851 So.2d 1039, the court discussed that a police officer’s authority to frisk a person stopped pursuant to La. C.Cr.P. art. 215.1(A) is subject to an objective standard on review:

An officer’s right to conduct a protective frisk is codified in La.Code Crim. Proc. art. 215.1(B), which provides that “[wjhen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” While it is true that an officer is never justified in conducting a pat-down for weapons unless the original investigatory stop itself was justified, a lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Hunter, 375 So.2d 99, 101 (La.1979). Even after a lawful investigatory stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger. La.Code Crim. Proc. art. 215.1(B); Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the reasonableness of a frisk is governed by an objective standard. State v. Dumas, 00-0862, pp. 2-3 (La.5/04/01), 786 So.2d 80, 81.
The officer’s suspicion that he is in danger is not reasonable unless the officer can point to particular facts which led him to believe that the individual was armed and dangerous. Hunter, 375 So.2d at 101. The officer need not establish that it was more probable than not that the detained individual was armed and dangerous. Rather, it is sufficient that the officer establish a “substantial possibility” of danger. Id. at 102. In determining the lawfulness of an officer’s frisk of a suspect, courts must give due weight, not to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Sims, 2002-2208, p. 6 (La.6/27/03), 851 So.2d at 1043-44.

Here, the officers lacked the requisite reasonable suspicion to conduct an investigatory stop of the appellant. Thus, Officer Chapital could not lawfully |, (¡subject him to a frisk for weapons under the authority granted by La.C.Cr.P. art. 215.1(B). Moreover, this is apparently not a situation in which Officer Chapital or his partner saw the outline of a handgun in Simpson’s clothing and thus would have had a reasonable belief that he was guilty of carrying a concealed weapon. Officer Chapital merely stated that the bulge in Simpson’s waistband was not consistent with human anatomy. However, choosing to carry property under one’s clothing is not a basis to be stopped and frisked. See State v. Dappemont, 98-0446 (La.App. 4 Cir. 3/17/99), 734 So.2d 736, in which the defendant was standing in a courtyard in a housing project when he saw police officers drive into the courtyard. He immediately walked away with his hand in his waistband. The officers stopped him and ordered him to take his hand out of his waistband. When he did so, the officers saw a piece of paper sticking out of his zipper area. The officers frisked him and discovered a bulge in the area where they saw the paper. They removed the bulge, which was found to be a bag of marijuana. This court found that under these circumstances, the officers did not have reasonable suspicion to stop the defendant. See also State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295.

In its response, the State argues that upon finding the hard object in Simpson’s waistband during the frisk, the officers were justified in believing it was a weapon and seizing it. However, the State had to show that the officers reasonably believed that Simpson was armed before they frisked him; at best, the 117officer testified that he could see a rectangular bulge at Simpson’s waist that he admitted was not shaped like a gun and was inconsistent with human anatomy.

The State failed to show a legitimate basis for the frisk of Simpson.

The final issue that Simpson addresses, is whether Officer Chapital had a legitimate basis to seize and then open the bag seized from Simpson’s waistband. The State does not address this issue in its brief. However, it appears that this search was also improper as it exceeded the scope of the frisk for weapons.

The “plain feel” exception to the warrant requirement was addressed by the Louisiana Supreme Court in State v. Boyer, 2007-0476 (La.10/16/07), 967 So.2d 458:

In Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S.Ct. 2130, 2134, 124 L.Ed.2d 334 (1993), the Supreme Court addressed whether nonthreatening contraband detected through the sense of touch during a Terry patdown may be admitted into evidence. Analogizing to the “plain view” doctrine, which provides that if police are lawfully in a position to view an object and its incriminating character is immediately apparent they may seize it without a warrant, see, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990), the Dickerson Court held if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; its warrant-less seizure is justified by the same practical considerations that inhere in the plain-view context. Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2136-37.

Boyer, 2007-0476, p. 22, 967 So.2d at 472.

Here Officer Chapital testified that, when he frisked Simpson, he felt a “hardened object”. He also admitted that the bulge he saw, prior to the frisk, was 1 ^square-shaped and did not have the shape of a firearm. There was no testimony from Officer Chapital indicating that, once he removed the bag from Simpson’s waistband, he could tell by its shape and feel that it was either a weapon or contraband. Thus, the decision to remove and open the bag was unjustified.

We find that this assignment of error also has merit.

DECREE

For the forgoing reasons, this Court finds that the State failed to establish there was reasonable suspicion for the officers to stop Shawn Simpson, or that there was a reasonable belief that he was armed to support a frisk of Simpson, even if the State had shown reasonable suspicion to support the stop. Therefore, there was no lawful basis for the seizure of the bag of marijuana from Simpson’s waistband, and the district court erred by denying his motion to suppress the evidence. Accordingly, we reverse the denial of the motion to suppress the evidence, vacate the conviction and sentence of Shawn Simpson, and remand the matter for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED

BELSOME, J., concurs in the result.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Ray BROWN d/b/a Ray Brown Builders v. June LORASO, Wife of/and Victor Loraso.
    No. 11-CA-196.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2011.
    David Greenberg, Adrian F. Lapeyron-nie, III, Attorneys at Law, Gretna, LA, for Plaintiff/Appellee.
    Larry C. Pieno, Attorney at Law, Mar-rero, LA, Victor R. Loraso III, Carleton Loraso, L.L.C., Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2Ray Brown d/b/a/ Ray Brown Builders (“Ray Brown”) initiated this Petition for Breach of Contract and Damages against Victor and June Loraso (“the Lorasos”) seeking costs, fees and damages in conjunction with a construction contract executed between the parties on November 10, 2002. The Lorasos answered the petition with a general denial and also brought a Reconventional Demand against Ray Brown for certain enumerated failures in completing the contract specifications.

Ray Brown subsequently filed a Peremptory Exception of Res Judicata alleging that the claims raised by the Lorasos in their Reconventional Demand had been discharged in compromise without any reservation of rights in a separate court proceeding. Following a hearing, the trial court rendered judgment on October 8, 2010 granting the exception of res judicata and dismissing with prejudice the recon-ventional demand brought by the Lorasos against Ray Brown. The Lorasos thereafter perfected this suspensive appeal.

| ..¡Following the lodging of the record in this Court, Ray Brown filed a Motion to Dismiss Appeal on the basis that the October 8, 2010 judgment did not constitute a final judgment and was therefore not immediately appealable pursuant to La. C.C.P. art. 1915. On April 5, 2010, this Court referred this Motion to the merits of the appeal. After a review of the record and applicable law, we find merit in Ray Brown’s argument that the judgment is not final and immediately appealable, and we therefore must dismiss the instant appeal without prejudice.

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 3 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art. 2083. A judgment that determines the merits' in whole or in part is a final judgment. La. C.C.P. art. 1841. Whether a partial final judgment is appealable is determined by examining the requirements of La. C.C.P. art. 1915.

La. C.C.P. art. 1915 provides in pertinent part:

B. (1) When a court renders a partial judgment or a partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination by the court that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

The judgment in this case does not adjudicate the claims of all the parties because it only disposes of the reconventional demand filed by defendants and does not consider the demands made by the plaintiff. First Bank and Trust v. Proctor’s Cove II, LLC, 10-1, p. 3, (La.App. 5 Cir. 3/16/10), 37 So.3d 1019, 1020, writ denied, 10-860 (La.6/18/10) 38 So.3d 328. The judgment is therefore a partial judgment, and must be designated by the court as final for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(2). The judgment of the trial court in this case is silent as to whether the judgment is final; there is no indication from the record that there has been a certification or designation as required by La. C.C.P. art. 1915.

Although our Supreme Court has interpreted La. C.C.P. art. 1915 to require the Court of Appeal to determine from the record whether a certification of a judgment as final is within the discretion of the trial judge prior to summarily dismissing the appeal, no such requirement applies where there has been no certification of the judgment as final. Messinger v. Rosenblum, 04-1664 (La.3/2/05) 894 So.2d 1113. This court lacks jurisdiction to review a partial judgment, as it is not a partial final judgment subject to immediate appeal under La. C.C.P. art. 1915(B). See, Shapiro v. L & L Fetter, Inc., 02-933, p. 7 (La.App. 5 Cir. 2/14/03), 845 So.2d 406, 410; Raspanti v. Raspanti, 05-738, p. 4 (La.App. 5 Cir. 3/3/06), 925 So.2d 676.

As there has been no certification of the partial judgment as final pursuant to La. C.C.P. art. 1915, we have no appellate jurisdiction to review it. Accordingly, we dismiss this appeal without prejudice., All costs of this appeal are assessed against the Lorasos.

APPEAL DISMISSED