text:
    Thomas D. DAVENPORT, Jr. v. Bradley Kyle SMITH, et al.
    No. 2011-CC-2147.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Atlas Home Builders, LLC; — rDe-fendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, Alexandria City Court, No. 111,715; to the Court of Appeal, Third Circuit, No. CW 11-00659.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Rudy WALKER, Sr. and Joan Walker v. AVONDALE INDUSTRIES, INC., et al.
    No. 2011-CC-2168.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re St. Pierre, Jan Walker; Walker Sr., Rudy et al.; Walker, Joan; Walker, Marc; Walker, Michael; Walker, Timothy; Walker, Todd; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 2003-3384; to the Court of Appeal, Fourth Circuit, No. 2011-C-0991.

Denied.


text:
    Erica JACKSON-HILL v. Charles A. HILL.
    No. 2011-CC-2008.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Hill, Charles A.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2011-10078; to the Court of Appeal, First Circuit, No. 2011 CW1016.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Louis Curt PANNAGL v. WES ULMO INTERIOR DESIGN, LLC.
    No. 2011-CC-2022.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Wes Ulmo Interior Design, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, New Orleans First City Court, No. 11-50625; to the Court of Appeal, Fourth Circuit, No. 2011-C-1071.

Denied.


text:
    TERREBONNE CONCRETE, LLC v. CEC ENTERPRISES, LLC.
    No. 2011-C-2021.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re CEC Enterprises LLC; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, Nos. 154,-885, 155,351, 154,296, 154,395, 154,449, 155,057, 155,058, 155,063; to the Court of Appeal, First Circuit, No. 2011 CA 0072 (CONSOLIDATED WITH 2011 CA 0073 THROUGH 2011 CA 0079).

Denied.


text:
    LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. CONOCOPHILLIPS COMPANY.
    No. 2011-CC-2074.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Conocophillips Company et al.; Sasol North America, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2008-2684; to the Court of Appeal, Third Circuit, No. CW 11-00597.

Denied.


text:
    BANCORPSOUTH BANK, Jan Renee Elkins and J & J Zookeeper, Inc. v. 3H MORTGAGE, LTD. d/b/a Megan Investments.
    No. 2011-CC-2023.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re 3H Mortgage Ltd. d/b/a Megan Investments; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 549,068; to the Court of Appeal, Second Circuit, No. 46841-CW.

Denied.


text:
    Julie Christy, Wife of/and Pete William SNYDER v. David Joseph GUZZARDO, Farm Bureau Insurance Companies, XYZ Company.
    No. 2011-CC-2056.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Guzzardo, David Joseph; Louisiana Farm Bureau Mutual Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 06-1031; to the Court of Appeal, First Circuit, No. 2011 CW 0901.

Denied.


text:
    Antonio WELLS, Sr., Individually and on Behalf of his Minor Children, Antonio Wells, Jr. and Amber Wells v. William C. NORRIS and XYZ Insurance Company.
    No. 2011-C-1949.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Norris, William C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 109,381; to the Court of Appeal, Second Circuit, No. 46,-458-CA.

Denied.


text:
    Leah RAINEY v. Rolston B. STEELE, MD and XYZ Insurance Company.
    No. 2011-C-2013.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Rainey, Leah; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 2008-15075; to the Court of Appeal, First Circuit, No. 2010 CA 2154.

Denied.


text:
    Timothy LITEL and Anthony Cortese v. Mark ANDERSON, Jim Wigginton, Steve Labarre, Dave Hiemstra, and Inland Industrial Services Group, LLC.
    No. 2011-CC-2010.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Anderson, Mark et al.; Hiemstra, Dave; Inland Industrial Services Group, LLC; Labarre, Steve; Wigginton, Jim;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 593826; to the Court of Appeal, First Circuit, No. 2011 CW 0828.

Denied.


text:
    CERTIFIED CLEANING & RESTORATION, INC. v. LAFAYETTE INSURANCE COMPANY, Earl J. Doucet, Turf Club Inc., Express Food Deli Inc. d/b/a the Edge Bar and Grill, Gammon Enterprises, LLC and Stephen D. Gammon.
    No. 2011-C-2174.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Certified Cleaning & Restoration, Inc.; — Plaintiff; Applying For Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 648-117, 650-083; to the Court of Appeal, Fifth Circuit, No. 10-CA-948.

Granted for the limited purpose of remanding to the court of appeal to clarify with reasons its ruling regarding any contract claims raised by the Doucets and Lafayette Insurance Company.


text:
    David G. BURTON, Sr. v. Clifton J. REDLICH, Rene Ortlieb, III, Adelyn Grace Ortlieb, Tracer Protection Services, Inc. and Tracer Armed Services, Inc.
    No. 2011-CC-2517.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Ortlieb III, Rene; Ortlieb, Adelyn Grace; Redlich, Clifton J. et al.; Tracer Armed Services, Inc.; Tracer Protection Services, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 602,315; to the Court of Appeal, First Circuit, No. 2011 CW 1777.

Denied.


text:
    James A. WILSON and Brenda M. Wilson v. STATE of Louisiana, through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2011-C-2083.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Wilson, Brenda M.; Wilson, James A. et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 499,980; to the Court of Appeal, First Circuit, No. 2011 CA 0007.

Denied.


text:
    Earline LEMOINE and Jeanine Russell v. JAMES O’QUIN CALTHOM, LLC, Progressive Insurance Company and USAA Insurance Company.
    No. 2011-CC-2075.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re USAA Casualty Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2009-11317; to the Court of Appeal, First Circuit, No. 2011 CW 0938.

Denied.

VICTORY, J., would grant.


text:
    Vivian MORRIS, as Tutor of Olivia Lakin Murtagh and Gerry Morris, as Undertutor of Olivia Lakin Murtagh v. Robert J. LANDRY, Robert J. Landry, a Professional Law Corporation, Warren A. Forstall, Jr., Warren A. Forstall, Jr., A Professional Law Corporation and First Mercury Insurance Company.
    No. 2011-CC-2129.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re First Mercury Insurance Company; Forstall Jr., Warren A.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 566-738; to the Court of Appeal, First Circuit, No. 2011 CW 1049.

Denied.


text:
    Vivian MORRIS, as Tutor of Olivia Lakin Murtagh and Gerry Morris, as Undertutor of Olivia Lakin Murtagh v. Robert J. LANDRY, Robert J. Landry, a Professional Law Corporation, Warren A. Forstall, Jr., Warren A. Forstall, Jr., a Professional Law Corporation and First Mercury Insurance Company.
    No. 2011-CC-2127.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Landry, Robert J.; Robert J. Landry, A Professional Law Corporation;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 566-738; to the Court of Appeal, First Circuit, No. 2011 CW 1049.

Denied.


text:
    Olivia BAILEY, on behalf of the deceased, William Brown, Grace Guidry, on behalf of the deceased, Raymond J. Guidry, Maxine P. Harris, on behalf of the deceased, Damion D. Harris, et al. v. EXXON MOBIL CORPORATION, ExxonMobil Oil Corporation, Chevron USA, Inc., Conocophillips Company, Marathon Oil Company, Shell Offshore, Inc., et al.
    No. 2011-C-2131.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Bailey, Olivia et al.; Guidry, Grace; Harris, Maxine P.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2009-1973; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0177.

Denied.


text:
    Sherman CRAVINS v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND, INC., d/b/a Tulane Medical School, and University Health Care Systems LLC, d/b/a Tulane University Hospital and Clinic.
    No. 2011-CC-2099.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Cravins, Sherman; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 598,817; to the Court of Appeal, First Circuit, No. 2011 CW 0782.

Denied.


text:
    Daniel Lee ARMSTEAD and Doretta Anita Armstead v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE for LSU MEDICAL CENTER IN SHREVEPORT, d/b/a Family Practice Medical Center.
    No. 2011-CC-2057.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Family Practice Medical Center; State of Louisiana; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. C, No. 209,616; to the Court of Appeal, Third Circuit, No. CW 00567.

Denied.

VICTORY J., would grant.


text:
    Roy Dell OWENS v. ST. TAMMANY PARISH DISTRICT ATTORNEY’S OFFICE.
    No. 2011-CP-2176.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   In re Owens, Roy Dell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2009-16718; to the Court of Appeal, First Circuit, No. 2011 CW 1437.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5.


text:
    Deborah MAYO, et al. v. CLECO CORPORATION and Cleco Power, L.L.C.
    No. 2011-CC-2205.
    Supreme Court of Louisiana.
    Nov. 28, 2011.
   In re Cleco Corporation et al.; Cleco Power L.L.C.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 10-C-2379; to the Court of Appeal, Third Circuit, No. CW 11-00349.

Granted and remanded to court of appeal for briefing, argument and opinion.

KNOLL, J., would deny.


author: MAX N. TOBIAS, JR., Judge.

text:
    OHM LOUNGE, L.L.C. v. ROYAL ST. CHARLES HOTEL, L.L.C., Warren L. Reuther, Jr., Eddie L. Jacobs, Sr., James E. Smith and Latter & Blum, Inc.
    No. 2010-CA-1303.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2011.

      Timothy S. Madden, Monica J. Manzella, John A. Cangelosi, King Krebs & Jurgens, PLLC, New Orleans, LA, for Plaintiff/Appellant.
    Randall A. Smith, J. Geoffrey Ormsby, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellee, Royal St. Charles Hotel, L.L.C.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

| ,This is an appeal by Ohm Lounge, L.L.C. (“Ohm Lounge”) from a judgment ordering its eviction from the premises leased from the Royal St. Charles Hotel, L.L.C. (“RSC Hotel” or “hotel”) where Ohm Lounge operated a lounge/bar. For the following reasons, we affirm the trial court’s judgment of eviction.

FACTS AND PROCEDURAL HISTORY

On 23 January 2007, RSC Hotel and Ohm Lounge entered into a Lease Agreement entitled “Gross Lease of Commercial Property” (the “Lease”). The Lease provided for a seven-year term with two “Renewal Terms,” of approximately 800 square feet of commercial space situated immediately adjacent to the lobby on the first floor of the RSC Hotel, which is located in the 100 block of St. Charles Avenue in New Orleans. The Lease required Ohm Lounge to pay RSC Hotel $1,500.00 per month until 31 December 2007, and then $2,000.00 per month for the period extending from 1 January 2008 through 31 December 2013.

After renovating the leased area, including removing and/or preserving artwork located on the premises, Ohm Lounge opened for business as a lounge in the latter part of 2007. Pursuant to the Lease terms, Ohm Lounge paid its monthly rental obligation and did not breach the financial obligations of the Lease. On 241 July 2008, RSC Hotel caused Ohm Lounge to be served with a five-day notice to vacate the premises issued by First City Court of the City of New Orleans in the matter entitled Royal St. Charles Hotel, LLC v. Ohm, LLC. In response, Ohm Lounge filed the instant suit seeking a declaratory judgment, specific performance, and damages. RSC Hotel timely filed its answer that contained a reconventional demand and a request for eviction based upon Ohm Lounge’s default of the Lease by operating it premises as a “nightclub” and creating a public nuisance.

During the four-day eviction proceedings, RSC Hotel maintained that Ohm Lounge was operating its business in derogation of the Lease by playing excessively loud music and creating a public nuisance. The trial judge heard testimony from numerous hotel guests complaining of disrupted sleep, inability to sleep, and overall dissatisfaction with the hotel due to the loud noise emanating from Ohm Lounge. The trial judge also heard testimony from several hotel employees attesting to the difficulties experienced in conducting hotel business at the front desk during certain hours as a result of the loud music.

After considering all of the evidence and evaluating the credibility of the witnesses in light of that evidence, the trial judge determined that the actions of Ohm Lounge in connection with the noise and nuisance complaints were incompatible with RSC Hotel’s business and were in violation of the Lease warranting eviction. Specifically, the trial court ruled that Ohm Lounge’s actions created a nuisance or annoyance to the hotel in violation of Section 22 of the Lease, entitled “Compliance with Laws, No Nuisance, No Residential Use,” which states, in pertinent part, that Ohm Lounge shall comply with all laws related to the use, maintenance, safety, and occupancy of the leased premises and that Ohm Lounge “shall not do or permit anything to be done in the leased premises that |,swould be a nuisance or annoyance to other tenants” of the RSC Hotel. Based upon Ohm Lounge’s breach of the Lease, the trial court granted RSC Hotel’s Motion for Eviction.

It is from this judgment that Ohm Lounge appeals assigning the following errors: (1) the trial court erred in finding that Ohm Lounge conducted its business in such a way as to create a nuisance or annoyance to RSC Hotel in violation of the Lease; (2) the trial court failed to allow William Stoner to testify as a fact and/or expert witness on behalf of Ohm Lounge; and, (3) the trial court failed to address the cure provision in the Lease.

STANDARD OF REVIEW

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Moreover, when findings of fact are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also Pelleteri v. Caspian Group Incorporated, 02-2141, pp. 6-7 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230, 1234-35.

| ¿Regarding issues of law, the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct. Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405. Accordingly, if the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Pelleteri, 02-2141, p. 7, 851 So.2d at 1235.

DISCUSSION

In its first assignment of error, Ohm Lounge avers that the trial court committed reversible error in finding that it conducted its business in such a way so as to permit a nuisance or annoyance to exist at the leased premises in violation of the Lease. According to Ohm Lounge, prior to the execution of the Lease, it presented representatives of RSC Hotel with a business plan that would meet the hotel’s stated vision of providing its guests with a consistent amenity in the form of a lounge/bar. Other than the testimony of William Blatty, owner of Ohm Lounge, and Robert Brunet, its general manager, no evidence was adduced at the hearing establishing that this business plan, which was introduced into the record, was ever actually received by anyone affiliated with RSC Hotel. Glen Smith, an owner of the hotel at the time Ohm Lounge opened, testified that he never saw a business plan and does not actually believe such a plan existed. Nonetheless, in its purported business plan, Ohm Lounge set forth its intended hours of operation for both weekday and weekend nights, respectively, with the weekend hours extending until 6:00 a.m. on Saturday and Sunday mornings. The business plan also stated Ohm Lounge’s intention of hiring local and guest disc jockeys to provide music and entertainment services for its patrons. In essence, Ohm Lounge contends that |sRSC Hotel knew what it was getting into when it executed the Lease for the lounge/bar— that is, that the lounge would be open until the wee hours of the morning on weekends coupled with loud disc jockey music — and that, at all relevant times, Ohm Lounge’s business operations were consistent with the hotel’s vision as stated at the time the Lease was executed.

According to Ohm Lounge, RSC Hotel was satisfied and even encouraged Ohm Lounge’s business plan during the lounge’s initial months of operation with no complaints and that it was only after Warren Reuther assumed control over the management of the hotel that Ohm Lounge began to receive any notices of deficiencies from RSC Hotel personnel concerning the manner in which Ohm Lounge operated its business. Ohm Lounge further avers that Mr. Reuther, who allegedly had an acrimonious relationship with the hotel’s prior management, purposefully set into place a series of activities designed to “get rid of’ Ohm Lounge solely because he did not like its business operation. Ohm Lounge argues that it is simply the “victim of a dysfunctional corporate environment.”

While Ohm Lounge concedes the music in its lounge was often loud and that complaints of noise from RSC Hotel guests and personnel were occasionally received, it contends that it complied with each request to turn the music level down. Ohm Lounge contends the evidence establishes that, upon receiving a noise complaint, representatives of the lounge would personally meet with the complaining guest and, if necessary, pay for the guest’s hotel room. According to Mr. Blatty, owner of Ohm Lounge, it was the responsibility of the hotel to communicate any and all complaints with regard to Ohm Lounge to himself, Jenny Tramuta, an Ohm Lounge manager, or Mr. Brunet, general manager of the lounge, in order that Ohm Lounge could promptly and appropriately respond. Mr. Blatty [^testified that Ohm Lounge was not aware of the majority of the noise complaints cited by RSC Hotel at the eviction hearing, as it only received a noise complaint approximately every six to eight weeks. Ohm Lounge contends that RSC Hotel’s failure to notify it of the several noise complaints it cited effectively denied Ohm Lounge the opportunity to address the alleged specific complaints and; therefore, Ohm Lounge should not be held accountable.

In addition to the complaints of excessively loud noise emanating from Ohm Lounge, RSC Hotel claimed that Ohm Lounge permitted unsafe conditions to exist on the premises, which caused a public nuisance in derogation of the Lease. In support of this contention, RSC Hotel presented evidence of an altercation occurring in January 2009. Ohm Lounge argues that the evidence failed to confirm that the altercation involved Ohm Lounge patrons or that the altercation even occurred on the leased premises. Regarding the other incidents that were cited by RSC Hotel at the eviction hearing, specifically incidents allegedly occurring on 25 December 2008 and 7 February 2009, respectively, Ohm Lounge argues that it presented testimony showing that these were mere incidents and not even altercations at all. On behalf of Ohm Lounge, Mr. Blatty testified that Ohm Lounge maintained a strict business policy of removing patrons causing problems from the leased premises and that it provided security guards and bathroom attendants during all hours of operation and front door personnel to check identification to properly ensure the safety of its patrons and the guests of RSC Hotel.

Ohm Lounge avers that the evidence presented at the hearing established that it operated its business in accordance with the terms of the Lease and with its purported business plan as communicated to RSC Hotel when the Lease was 17executed. Consequently, Ohm Lounge argues the trial court erred when it determined that RSC Hotel met its burden of establishing that Ohm Lounge permitted an annoyance or nuisance to exist in violation of the Lease warranting eviction. We disagree.

Our review of the record shows that it is replete with testimony from both hotel employees and guests evidencing numerous complaints made to Ohm Lounge concerning excessively loud music emanating from the lounge/bar that continuously disrupted the business operations of RSC Hotel. Contrary to the assertions of Ohm Lounge, these noise complaints pre-dated Mr. Reuther’s assuming control of RSC Hotel, thereby contradicting Ohm Lounge’s theory that the noise complaints were fabricated or exaggerated to perpetuate a scheme to evict Ohm Lounge. Additionally, Mr. Reuther testified at trial that he was amenable to having Ohm Lounge continue its business in the lobby of the hotel as long as they reduced the volume of music to a reasonable level and operated the lounge with the “laid back, wine loft type feel” atmosphere that Ohm Lounge initially represented to RSC Hotel at the time it was negotiating the Lease.

Michelle Reuther, general manager of the hotel, testified that nearly every weekend between 3:00 a.m. and 5:00 a.m., she was contacted by the front desk agent and/or guests from the second to the tenth floor of the hotel concerning complaints of loud noise coming from Ohm Lounge. She received additional complaints from hotel guests during check out at the time of their departure. Introduced into evidence were numerous emails and other correspondence spanning the period from June 2008 through February 2009, wherein Ms. Reuther |8expressed to Ohm Lounge representatives the disruptive and adverse effect the untenable noise was having on RSC Hotel’s operation and its guests. The record also reflects that these emails and correspondence were discounted or largely ignored by Ohm Lounge management. Additionally, Ms. Reuther referred to several guest portfolios corroborating her testimony regarding the intolerable noise generated by Ohm Lounge and the guests’ dissatisfaction with RSC Hotel. Ms. Reuther further testified concerning lost revenue suffered by RSC Hotel due to Ohm Lounge’s establishment and the excessively loud music resulting in guests’ dissatisfaction.

Numerous employees of the hotel testified during the two phases of the eviction proceedings substantiating Ms. Reuther’s testimony regarding the numerous noise complaints received from hotel guests. In many instances, the guests complained of their inability to sleep due to the excessively loud noise coming from Ohm Lounge. Often RSC Hotel would attempt to accommodate these guests by moving them to other available rooms in the hotel. The front desk agents also expressed the difficulty they experienced in performing their job functions such as checking guests in and out of the hotel, taking reservations over the phone, their inability to hear the telephone ring, or generally being unable to converse at the front desk due to the loud noise emanating from the bar.

Several of RSC Hotel’s employees testified that on many occasions they would ask the staff of Ohm Lounge to lower the volume of the music, which request would on occasion initially be momentarily heeded, and then within a short |flperiod of time, the volume would steadily be increased. In this regard, Ohm Lounge manager, Mr. Brunet, testified that despite the hotel’s requests to lower the volume, he was the one responsible for determining what constitutes a reasonable volume level. Additionally, Mr. Blatty testified that even if Ohm Lounge agreed to turn the volume of music down, it would not be to the level desired by RSC Hotel.

In the case at bar, the trial judge obviously made credibility determinations, finding that the testimony of RSC Hotel’s witnesses was more credible than the testimony of Ohm Lounge’s witnesses. Based on these credibility determinations, coupled with the glut of complaints received from hotel guests and hotel employees spanning over many months, we find no manifest error in the trial court’s finding that the noise emanating from Ohm Lounge created a nuisance disruptive to the business operations of RSC Hotel in violation of Section 22 of the Lease. Accordingly, we find this assignment of error is without merit.

In its second assignment of error, Ohm Lounge argues the trial judge committed reversible error by not allowing William Stoner to testify during the eviction proceeding as an expert or fact witness on their behalf. In addition to asking this court to consider what Mr. Stoner would have stated had he been allowed to testify at the hearing, Ohm Lounge is asking this court to consider Mr. Stoner’s report that it attached to its appellate brief. It is well-settled that “evidence not properly and officially offered and introduced cannot be considered, even if physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Denoux v. Vessel Management Services, Inc., 07-2148, p. 6 (La.5/21/08), 988 So.2d 84, 88. When the trial judge rules the evidence is inadmissible, a proffer (offer of proof) can be made. La. C.C.P. art. 1636. Indeed, the purpose of mandating the trial court to allow the excluded evidence to be proffered is so that “the testimony (whatever its nature) is available for appellate review.” McLean v. Hunter, 495 So.2d 1298, 1305 (La.1986). It is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion is error. Ritter v. Exxon Mobile Corp., 08-1404, p. 9 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 546.

In the case at bar, Ohm Lounge sought to call Mr. Stoner as an expert and/or fact witness on its behalf. Following an in chambers discussion regarding the matter, which discussion was not made a part of the record, the trial court ruled that it was not going to allow Mr. Stoner’s testimony at the hearing, but would allow the testimony to be proffered. The record is devoid of any such proffer by Ohm Lounge. Accordingly, Ohm Lounge is precluded from raising this issue on appeal. See also Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 09-1528, p. 2 n. 2 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1151.

In its final assignment of error, Ohm Lounge contends the trial court failed to address the Lease’s cure provision and failed to allow Ohm Lounge to cure any “violation” of or “failure” to comply with the Lease. We disagree.

The Lease provides that an Event of Default will occur if there is no cure after ten days. “Event of Default” is defined in Section 23 of the Lease as follows:

(d) ... Lessee violates or fails to comply with any of its obligations under this Lease when this compliance is due, and this failure continues for 10 days after notice by ^Lessor to Lessee of this failure (provided that if two such failures occur during any twelve-month period and if Lessor gives Lessee notice of the failure on each occasion, then an Event of Default will occur immediately, and without notice or opportunity to cure, if during the same twelve-month period, Lessee again violates or fails to comply fully with the same or any other provision of this Lease)....

The record contains a surfeit of evidence that, dating back to as early as October 2007, and commencing in earnest in February 2008, RSC Hotel repeatedly notified Ohm Lounge of the numerous complaints it was receiving from its guests regarding excessively loud music coming from the Ohm Lounge. The record indicates that RSC Hotel first put Ohm Lounge on notice of noise issues beginning on 11 October 2007, and then again on 18 June 2008 and 15 July 2008, with no efforts made by Ohm Lounge to eradicate the problem. In contrast, Ohm Lounge presented no evidence showing any concrete efforts it made to promptly alleviate or eradicate the nuisance it created at the hotel by allowing the excessively loud noise to blare from its establishment other than paying for a guest’s hotel room and momentarily reducing the level of music only to turn it back up again. While evidence was submitted regarding the suggestion of possibly erecting a plexi-glass wall separating the lounge from the lobby of the hotel, this effort did not occur until many months after the noise complaints had commenced and well after ten days following receipt of notice of a violation as required by the Lease. Additionally, no evidence was presented at the hearing showing that any testing or analysis had been conducted to ensure that the erection of such a plexi-glass wall 112would actually abate the critical noise problem. Pursuant to Section 23 of the Lease, RSC Hotel was not required to afford Ohm Lounge with the opportunity to cure after having already provided it with notices of two violations and no subsequent attempts made by Ohm Lounge to cure. Accordingly, pursuant to the terms of the Lease, we find that following the notice given to Ohm Lounge on 15 July 2008 regarding the nuisance it created by the excessively loud noise — which was the third notice given to Ohm Lounge of a Lease violation with no attempt at cure within the same twelve-month period— such actions on the part of Ohm Lounge constituted an Event of Default triggering Section 24 of the Lease, which permitted RSC Hotel to pursue eviction proceedings against Ohm Lounge.

The record further confirms that on 18 August 2008, 19 September 2008, and 16 October 2008, respectively, RSC Hotel provided Ohm Lounge with additional notices of noise issues affecting its guests’ satisfaction and business operations. We agree with RSC Hotel that, given these three violations of the Lease, Ohm Lounge was no longer entitled to a right to cure under the express terms of the Lease. The only attempt to cure that Ohm Lounge was required to make was to reduce the volume of music to a reasonable level that was mutually acceptable to the lounge and the hotel during all hours of operation. This it simply chose not to do. Ohm Lounge’s third assignment of error is without merit.

Accordingly, the judgment of the trial court granting RSC Hotel’s Motion to Evict is affirmed.

AFFIRMED.

      . Glen Smith, one of the owners of RSC Hotel during the Lease negotiation period, testified that during the negotiations, he was assured that the lounge would not operate as a discotheque or night club, but rather, would operate as a "wine bar” with a "laid back feel.”

      . We do not find that paying for a guest’s hotel room was a ''cure” for the noise problem Ohm Lounge created at the hotel. While such an act may have placated the guest, the noise issues continued as evidenced by the ongoing complaints as testified to in the record. Additionally, temporarily lowering the volume of the music in an effort to momentarily appease the hotel’s manager and desk clerk also does not constitute a ’’cure” for the noise problem, for as soon as the volume was raised, the problem returned.

      . Section 24 of the Lease, entitled "Lessor's Default Remedies,” permits RSC Hotel, upon the occurrence of an Event of Default, as described in Section 23, to "(iv) enforce any or all other rights or remedies provided in this Lease or permitted by law.”


author: JOAN BERNARD ARMSTRONG, Chief Judge. MURRAY, J.,

text:
    STATE of Louisiana v. Bruce A. SIMS.
    No. 2010-KA-1227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, Laplace, LA, for Defendant/Appellant, Bruce A. Sims.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

Jstatement OF CASE

On December 17, 2009, the State charged Bruce Sims with one count of attempted second degree murder. Sims pled not guilty at his arraignment on January 11,2010. A twelve-member jury found Sims guilty of attempted manslaughter on April 6, 2010. On June 8, 2010, all of the following occurred: The court denied the defendant’s motion for post-verdict judgment of acquittal and motion for new trial; the State filed a multiple bill alleging that Sims was a third offender, pursuant to which the court found him to be a third offender, and sentenced him to serve life at hard labor without benefit of probation, parole, or suspension of sentence; the trial court granted Sims’ motion for appeal; and Sims filed a motion to reconsider the sentence which is currently set for hearing on September 26, 2011.

Sims’ appeal was lodged in this Court on September 1, 2010. Sims contacted this Court, requesting the record to file a supplemental brief. This Court sent him the record, but he failed to file a brief.

| STATEMENT OF FACT

Mr. Lonnie Stevens testified that on the evening of October 16, 2009, he was at a party with his the girlfriend, Ms. Dawn Mosley, and her family before heading back to Ms. Mosley’s residence on Roche-blave Street in New Orleans. When he and Ms. Mosley arrived at the residence, the defendant was in the area, walked over to Mr. Stevens, and started arguing with him. Mr. Stevens testified that prior to this incident, he and the defendant knew each other and had argued with each other in the past. Mr. Stevens testified that after the defendant began arguing with him, he went inside of the residence to grab his bag with the intention of leaving the area. Mr. Stevens testified that after he grabbed his bag, he started to walk outside of the door of the residence, when the defendant began stabbing him. Mr. Stevens testified that prior to being stabbed, he threw a bottle at the defendant as a result of their argument. Mr. Stevens further testified that he did not realize that he had been stabbed until after “one of the police officers told me: “You bleeding.’ ” Thereafter, Mr. Stevens was taken to the hospital where he was treated for multiple stab wounds.

On cross-examination, Mr. Stevens testified that he “had a few beers” before he began arguing with the defendant. Mr. Stevens testified that he remembered grabbing a bottle after arguing with the defendant, but that he did not remember any other details surrounding the exact time he threw the bottle at the defendant.

On re-direct, Mr. Stevens testified that although he had a few beers on the night in question, he was not drunk when the incident ensued between him and the defendant. Mr. Stevens testified that prior to the incident, the defendant and Ms. | ¡¡Mosley had dated. Mr. Stevens further testified that he did not know the defendant before he started dating Ms. Mosley. Mr. Stevens is no longer dating Ms. Mosley.

Officer Quincy Broaden testified that around 11:40 p.m. on the night in question, he and his partner received a dispatch to 1940 N. Rocheblave St. When they arrived at the scene, they observed Mr. Stevens with several stab wounds to the upper part of his body. Off. Broaden testified that there was one witness on the scene, Ms. Mosley. Off. Broaden further testified that although the defendant was not present at the scene, Mr. Stevens told him that the defendant had stabbed him. Off. Broaden testified that he was able to ascertain that Mr. Stevens and the defendant had gotten into an argument over Ms. Mosley, which later turned physical.

On cross-examination, Off. Broaden testified that although the Crime Lab was notified of the incident, and that although he assumed they took pictures of the scene, he did not know whether they took any samples of the blood at the scene; nor did he know whether the blood at the scene was that of only one person or more.

On re-direct, Off. Broaden identified seven pictures taken at the scene by the Crime Lab on the night in question. Each picture identified blood, either pooled or splattered, in the vicinity of where the altercation ensued between Mr. Stevens and the defendant.

Ms. Dawn Mosley testified that she dated the defendant for five or six months. Ms. Mosley dated Mr. Stevens, on and off, for five years before she met the defendant. Ms. Mosley testified that on the night in question, she was dating the defendant. On that night, Ms. Mosley and Mr. Stevens went to a party together for her godchild. Following the party for Ms. Mosley’s godehild, Ms. Mosley |4planned to take the defendant out for his sixteenth birthday. Ms. Mosley testified that she asked the defendant to be at her house around 11 p.m., and that she and Mr. Stevens returned from the party around 11:30 p.m. or 12:00 a.m. When Ms. Mosley and Mr. Stevens first got to the house, Ms. Mosley ran inside of it to use the restroom. While she was in the restroom, her sister, who had dropped her off at her house, knocked on the restroom door and told her: “There’s a man outside.” Seconds later, Ms. Mosley went outside and saw the defendant. She gave the defendant a hug and a kiss and told him “Happy Birthday.” At this time, Mr. Stevens was inside of the house getting his work bag. Ms. Mosley then went back inside, while Mr. Stevens was going outside. By the time Ms. Mosley was back inside the house, she realized that the two men were fighting.

Ms. Mosley testified that prior to exiting the residence, Mr. Stevens grabbed a bottle that was on her coffee table and, upon leaving the house, threw the bottle at the defendant and said: “Bitch, you not taking my family from me.” Ms. Mosley did not know whether the bottle Mr. Stevens threw at the defendant actually hit the defendant; she only knew that the bottle hit the ground and broke. Ms. Mosley testified that after Mr. Stevens threw the bottle towards the defendant, he “went behind the bottle and ended up on top of him.” The two men then began to fight on the ground.

Ms. Mosley testified that she saw the defendant hitting Mr. Stevens and that she saw a handkerchief around the defendant’s hand, but that she did not see a knife in his hand. Ms. Mosley testified that she pulled Mr. Stevens off of the defendant, while her sister called the police. Ms. Mosley testified that she is no longer dating either Mr. Stevens or the defendant.

|sOn cross-examination, Ms. Mosley testified that the bottle Mr. Stevens grabbed from her coffee table and threw at the defendant was a thirty-two ounce glass bottle that had originally been filled with sunflower seeds. Ms. Mosley testified that after she pulled Mr. Stevens off of the defendant, she saw blood on both men, but did not see injuries to the defendant. Ms. Mosley further testified that Mr. Stevens and the defendant had “passed words, like ... once or twice,” in the past, but never really had any previous conflicts.

Officer Mary Colon testified that on the night in question, at approximately 11:30 p.m., she was dispatched to 1940 N. Roehe-blave St. for an aggravated battery. When she arrived at the scene, she was informed that Mr. Stevens had already been transported to University Hospital by EMS. Off. Colon spoke with Ms. Mosley about the incident and witnessed blood by the door of the residence, as well as on the driveway. Off. Colon testified that she did not see any broken bottles around the scene.

Off. Colon then left the scene and traveled to the hospital to speak with the victim. When she arrived at the hospital, Off. Colon saw that the victim had multiple stab wounds: one was about an inch from his heart, another one was on his left side, and two were on his left rib cage. While Off. Colon was at the hospital, an ultrasound was taken of Mr. Stevens’ heart. The ultrasound revealed that there was fluid around his heart. Through her investigation, Off. Colon learned the identity of the potential perpetrator was the defendant. Off. Colon later presented a six-person photographic lineup to Mr. Stevens; and Mr. Stevens made a positive identification that the defendant was the perpetrator.

On cross-examination, Off. Colon testified that she did not arrest the defendant. She further testified that Ms. Mosley told her that she observed the | (¡defendant punching Mr. Stevens and that he had a pocket knife. Off. Colon further testified that the other subjects who witnessed the altercation were all minors — although there were some adults in the area at the time of the altercation, none apparently saw “the whole commotion.”

On re-direct, Off. Colon testified that throughout the course of her investigation, she did not learn from any witness that a bottle had either been thrown or broken.

The defense rested without calling any witnesses.

ERRORS PATENT

The record reveals no errors patent.

ASSIGNMENT OF ERRORS

Although the defendant argues three assignments of error, a review of the record reveals only one assignment of error. In his sole assignment of error, the defendant argues that the evidence was insufficient to convict him of attempted manslaughter.

This Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011, p. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106-107 as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is 17what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v.Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

The defendant was charged with attempted second degree murder and convicted of attempted manslaughter in violation of La. R.S. 14:27 and 14:31.

La.R.S. 14:27 provides in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
⅝ ⅜ ⅜ ⅜ ⅜ ⅝
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

|sLa.R.S. 14:31 provides in pertinent part:

Manslaughter is: 1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed;

In reviewing whether the evidence supports a trier of fact’s decision to convict, the court should review the evidence in the light most favorable to the prosecution and must determine if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jarman, 445 So.2d 1184, 1189 (La.1984).

The defendant argues that the evidence was insufficient to convict him of attempted manslaughter because the evidence did not eliminate beyond a reasonable doubt that he did not act in self-defense.

We find nothing in the record to show that the defendant raised the argument that he acted in self-defense in the trial court. An appellate court need not consider a claim of self-defense raised for the first time on appeal. State v. Patterson, 10-415, p. 11 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 148. The defendant did not testify at trial. The record on appeal did not include any opening or closing statements made by either the State or the defense. Additionally, the defendant did not make his self-defense argument in either his motion for new trial or motion for post-verdict judgment of acquittal. In State v. Juluke, 98-0341, p. 4-5 (La.1/8/99), 725 So.2d 1291, 1293, the Louisiana Supreme Court held:

|9The Jackson standard does not provide a defendant with a means of splitting alternative and inconsistent defenses in different forums, raising one defense before the jury and when that fails, a second defense presupposing a different set of facts in an appellate court conducting sufficiency of review under Jackson and La. C. Cr. P. art. 821(E).

However, as in Patterson, supra, we may infer the possibility that the defense was raised in the trial court. Consistent with such an inference, we note that the State has not argued that the defense failed to raise the issue in the trial court. Therefore, as in Patterson, out of an excess of caution, this Court reviewed the record carefully regarding the issue of self-defense from a sufficiency of evidence perspective.

In this regard, as explained in State v. Boudreaux, 08-1504, pp. 28-32 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1160-1162, neither the law nor the jurisprudence provides a definitive answer to the question of whether it is the State or the defendant who bears the burden of proof in a non-homicide case on the issue of self-defense.

However, as in Boudreaux, supra, we find that viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant did not act in self-defense.

Accordingly, we find no merit in this assignment of error.

For the foregoing reasons, the defendant’s conviction is affirmed and the case is remanded for sentencing in light of defendant’s pending motion to reconsider the sentence, reserving to the defendant the right to appeal his sentence.

AFFIRMED IN PART AND REMANDED

MURRAY, J., concurs.

MURRAY, J.,

concurs.

|TI concur in the result.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Peter LEWIS.
    No. 2010-KA-1339.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, Laplace, LA, for Defendant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThe defendant, Peter Lewis, appeals his conviction for aggravated battery and his twenty-year sentence as a multiple offender, contending only that the trial court erred by finding him to be a fourth offender. We affirm.

STATEMENT OF CASE

On January 6, 2009 the defendant was charged with attempted first degree murder of his wife, Janet Lewis. On October 8, 2009, at the end of a two-day trial, a jury found him guilty of aggravated battery, a violation of La. R.S. 14:34. On December 15, 2009, the court denied his motion for post-verdict judgment of acquittal. He waived all delays, and the State filed a multiple bill, alleging that the appellant was a fourth offender. After a full hearing on the bill, the court found him to be a fourth offender. The court then sentenced the appellant to serve twenty years at hard labor without benefit of probation. The court denied the appellant’s motion to reconsider sentence, but granted his motion for appeal.

STATEMENT OF FACT

Peter Lewis was convicted of the aggravated battery of his wife, Janet Lewis, in connection with a violent domestic dispute that occurred in their residence on October 25, 2008.

| ¿The State began the presentation of its case by playing the tape of Ms. Lewis’ 911 call concerning this incident.

Russ Latimer, a paramedic employed by the City of New Orleans, testified that he responded to a call from 1534 Painters at approximately 12:30 a.m. on October 25, 2008. Once there, he found a female victim lying on her stomach with a wound to her left temple. The victim also had low blood pressure. He transported her to University Hospital. On cross-examination, he testified that he recorded the victim’s pain as a five in a range of one to ten.

Officer Gary Salinger of the NOPD Crime Lab testified that he responded to the call of the incident and took several photographs of the scene and of the victim, who had not yet been taken to the hospital when he arrived. Off. Salinger identified and described various photographs that he took, some of which showed blood on the floor near the front door and next to the bed in a bedroom. He also identified a photograph of a scabbard for a sword that was lying on the bed, as well as a photograph showing two knives lying on a dresser in the bedroom. He testified that he seized the scabbard but not the knives.

The State introduced a certified copy of Janet Lewis’ medical records.

On the second day of trial, Officer Nicholas Williams testified as to a prior domestic dispute between the defendant and his wife. Regarding that prior incident, Off. Williams testified that at approximately 2:30 a.m. on August 10, 2008, he responded to a call concerning a domestic battery at a residence in the 1400 block of Frenchmen Street wherein a man struck his wife or girlfriend. He testified that the dispatch included a description of the man, who had fled the residence. As he and his partner neared the residence, they saw the defendant, who fit the description, riding a bicycle on N. Claiborne Avenue between Frenchmen Rand Touro Streets. They stopped him, advised him of their investigation and of his Miranda rights, handcuffed him, and transported him to the residence in the 1400 block of Frenchmen, where the victim identified him. He testified that the victim was bleeding from a laceration to the mouth, and the officers detained Lewis, issuing him a municipal citation for domestic violence by simple battery.

On cross-examination about the prior incident, Off. Williams testified that when he arrived at the residence, many people were standing in the area because the victim and Lewis had just had a party, but none of the people would talk to the police about the incident. No one other than the victim was inside the residence. He testified that Lewis stated that they had been drinking that night. Ms. Lewis declined any medical help, telling Off. Williams that she would seek help on her own.

The State’s final witness was Janet Lewis, who stated that she and Lewis had been married since 2008. Ms. Lewis testified that in March 2008, she and Lewis fought for a reason that she could not remember, and at that time, he slapped her, busting her lip. She testified that she hit him back. She stated that she did not call the police after this incident, and Lewis continued to live with her. She then recounted the August 2008 incident. She stated that August 8 was her birthday, and they threw a party for her that night. She described Lewis as having had an “attitude” all day, and during the party that night, he started a big fight with her that caused their guests to leave. She stated that while they were cleaning up the back yard after the party, they started fighting again, and Lewis pushed and choked her. She testified that she went to a telephone to call the police, and he ripped the phone from the wall. She testified that she then got to another phone and called 911, and Lewis pulled a sword on her and then fled. She testified that she gave the | responding officers a description of Lewis and his clothing, and the officers soon returned with Lewis. She admitted that although Lewis threatened her with the sword, he did not use it, instead leaving it on the nightstand in the bedroom.

Ms. Lewis testified that she obtained a restraining order against Lewis, but after he got out of jail, he called her, and they got together to try to reconcile. Their attempts were not successful. She stated that on October 25, 2008, Lewis was still living with her, and he had left the residence. She testified that she, her brother, his cousin, and another man were sitting on the front steps talking when Lewis returned and tried to join in the conversation. She told him that they were not talking with him, and she and Lewis became embroiled in yet another argument. Ms. Lewis testified that when she went inside to use the bathroom, Lewis followed her inside. She stated that when they got to the bedroom, he pushed her, and they began struggling. She stated that she got him pinned on the bed, but he got away, went to the closet, and came out brandishing a sword. She stated that he first hit her on the back of the neck with the sword, and she turned and grabbed the sword’s blade. She soon released it, and he then hit her on the side of the head with the sword. She testified that Lewis told her: “Look what you made me do. I thought you said you loved me.” Lewis left, and she called 911. Ms. Lewis testified that she did not remember seeing the two knives on the dresser, and she denied touching either of them during the altercation with Lewis. She stated that after the police and EMS personnel arrived, she was taken to University Hospital. Once she was released, she had a friend take photographs of her injuries, which the State displayed to the jury. She insisted that Lewis hit her first, and she denied threatening him with any weapons.

|sOn cross-examination, Ms. Lewis admitted that she did not call the police in connection with the March 2008 incident. She reiterated that Lewis pushed and choked her during the August 2008 incident. She admitted that she allowed Lewis to move back with her after the August incident because she wanted to try to work things out in their marriage. She also admitted that she and Lewis had been drinking before the October 2008 incident. She stated that after he left and she called the police, she went to the front door to unlock it for the police and then walked back to the bedroom, where the 911 dispatcher was still on the phone, and at that point she passed out.

ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENT OF ERROR

By his sole assignment of error, the appellant contends that the trial court erred by adjudicating him a fourth offender. Specifically, he alleges that the State failed to show the discharge date from his most recent prior conviction in order to prove that ten years had not lapsed between his release from that sentence and the commission of the present offense. He also argues that the State failed to prove that he was the person who committed one of the earlier convictions because there were no fingerprints on the bill of information for that case. Neither of these arguments has merit.

At the multiple bill hearing, the State called Officer Joseph Pollard, whom the parties stipulated was an expert in the comparison and examination of latent fingerprints. Off. Pollard took the appellant’s fingerprints prior to the start of the hearing which were identified as Exhibit S-l. He then identified an arrest register as Exhibit S-2 and the matching cert, pack from case # 377-076 as Exhibit S-2. hThese documents showed that Peter Lewis pled guilty on October 4, 1995, to the illegal possession of a stolen vehicle and to being a second felony offender, and the court sentenced him to serve five years at hard labor. Off. Pollard testified that he compared the fingerprints on S-l with those on S-2 and found that they matched, thereby leading him to conclude that the appellant was the person convicted in case # 337-076.

Off. Pollard then identified another arrest register as Exhibit S — 4, and a cert, pack from case # 358-508 as Exhibit S-5. These documents showed that Peter Lewis pled guilty to distribution of a false substance represented to be cocaine in January 1993. Off. Pollard compared the fingerprints on the back of S-4 and testified that they matched those in S-l, concluding that the appellant was the person convicted in case # 358-508.

Finally, Off. Pollard identified a third arrest register as Exhibit S-6, and a cert, pack from case # 339-274 as Exhibit S-7. These documents showed that Peter Lewis pled guilty to illegal possession of a stolen automobile in December 1989. Off. Pollard compared the fingerprints on the back of the bill of information with those in exhibit S-l and concluded that the appellant was the person convicted in case # 339-274.

The defendant’s first complaint regarding the multiple bill is that the court erred by finding him to be a fourth offender because the State did not establish that less than ten years elapsed between his release from the 1995 sentence and the commission of the present offense. He notes that although he received a five-year sentence in 1995, and the present offense occurred in 2009, the State failed to show that he was not given an early release, such as parole or good time. He concludes 17that because the State did not establish that this time period did not lapse, the court could not find him to be a fourth offender.

In support, he cites La. R.S. 15:529.1 C, which provides:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

He argues that he may have been eligible for good time release during the five years of his sentence, and thus the State did not meet its burden of showing that ten years had not elapsed between his release and the commission of the current offense in October 2009.

Both at the hearing and in its brief, the State responded that under the provisions of La. R.S. 15:571.3 C, he was not eligible to earn good time diminution of sentence. La. R.S. 15:571.3 provided during the duration of the five years of the defendant’s sentence:

C. Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(s) A violation of the Louisiana Controlled Dangerous Substances Law which is a felony; [and]
* ⅜ *
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3)The inmate’s last conviction for the purposes of the Habitual Offender Law, was for a crime: ... (b) committed on or after September 10,1977.

Here, the defendant pled guilty in 1995 to illegal possession of a stolen car. At that time, he also pled guilty to being a second felony offender. Although not the prior conviction listed in the multiple bill, he pled guilty in 1993 to the felony offense of distribution of a substance falsely represented to be cocaine and received a sentence of two and a half years at hard labor. Under La. R.S. 15:571.3, he was not eligible for good time diminution of sentence under subpart C because he was convicted at least once of a felony offense under the Controlled Dangerous Substance laws; he pled guilty to being a multiple offender; and he committed the crime after September 10, 1977. Moreover, even if he was eligible for good time release, as per La. R.S. 15:571.5 B(2), his release would be supervised as if he had been released on parole “for the remainder of the original full term of sentence.” Therefore, even if he had been released before 2000, he would still have been under the supervision of the D.O.C. and thus the time of his release would not have counted toward the ten years set forth in La. R.S. 15:529.1 C.

The date of actual discharge from the Department of Corrections determines the expiration of the previous sentence. State v. Lorio, 94-2591 (La.App. 4 Cir. 9/28/95), 662 So.2d 128, 130. Likewise, as per La. R.S. 15:574.4 A(1), the |3appellant would not have been eligible for parole because he had been convicted of three or more felony offenses. Therefore, the defendant’s first basis for contending that the trial court erred in finding him to be a fourth time felony offender is without merit.

Alternatively, the defendant argues that the trial court erred by finding him to be a fourth offender because the State failed to show that he was the same person convicted in one of the earlier cases. He argues that although Off. Pollard was able to match the fingerprints found on one of the arrest registers to the fingerprint card taken on the day of the hearing, there were no fingerprints on the bill of information for the same case. Although he does not indicate to which prior conviction this argument applies, the transcript of the multiple bill hearing indicates that counsel raised this issue in connection with case # 358-508. This claim also has no merit.

In State v. Henry, 96-1280 p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325, this court set forth the State’s burden to prove that a defendant is a multiple offender:

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Hawthorne, 580 So.2d 1131 (La.App. 4th Cir.1991). Various methods are available to prove that the defendant on trial is the same person convicted of the prior felony offense, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver’s license number, sex, race and date of birth. State v. Westbrook, 392 So.2d 1043 (La.1980); State v. Curtis, 338 So.2d 662 (La.1976); State v. Pitre, 532 So.2d 424 (La.App. 1st Cir.1988), writ den., 538 So.2d 590 (La.1989); State v. Savoy, 487 So.2d 485 (La.App. 3rd Cir.1986). The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. Curtis, 338 So.2d at 664. In State v. Westbrook, 392 So.2d 1043 (1980), the supreme court found that along with defendant’s name, his driver’s license number, sex, race, and date of birth were sufficient evidence for the State to carry its burden of proving that this defendant was the same person previously convicted of another felony.

See also State v. Gillam, 03-0369 (La.App. 4 Cir. 6/18/03), 850 So.2d 804; State v. Payne, 01-1730 (La.App. 4 Cir. 3/20/02), 814 So.2d 617.

Here, the arrest register S-4 indicated that Peter Lewis was arrested for selling narcotics to an undercover officer on June 26, 1992. The bill of information in S-5 charged Peter Lewis with distributing a substance falsely represented to be cocaine on June 26, 1992. The docket master lists the same date of birth for Peter Lewis as that listed on the arrest register, and it also contains the same file/folder number. Although there were no fingerprints on the back of the bill of information, they were on the back of the arrest register, and information on the arrest register matched that in the cert. pack. Consistent with the cases cited above, there was sufficient evidence for the court to find that the State proved that the defendant was the Peter Lewis who pled guilty in case # 358-508. This claim also has no merit, and the trial court properly adjudicated the defendant a fourth offender.

DECREE

For the foregoing reasons, we affirm the defendant’s aggravated battery conviction and his adjudication and sentence to twenty years at hard labor as a fourth offender.

CONVICTION AND SENTENCE AFFIRMED

      . C(l)(r) is now designated C(l)(s).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Robert E. TURNER III.
    No. 10-KA-995.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for the Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12This appeal challenges the district court’s denial of defendant, Robert E. Turner, Ill’s, motion to suppress evidence and motion to suppress statement. For the reasons that follow, we affirm defendant’s convictions and sentences, but remand this matter to the district court with instructions.

PROCEDURAL HISTORY

On June 1, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Robert E. Turner, III, with felon in possession of a firearm in violation of LSA-R.S. 14:95.1 (count one), and with possession with intent to distribute marijuana in violation of LSA-R.S. 40:966(A) (count three). At his June 5, 2009 arraignment, defendant pled not guilty to these charges. Thereafter, on March 3, 2010, the trial court heard and denied defendant’s motions to suppress evidence and statement.

laOn July 14, 2010, defendant -withdrew his pleas of not guilty, and after being advised of his rights, pled guilty as charged to both counts. In accordance with the plea agreement, the trial court, on count one, sentenced defendant to ten years imprisonment at hard labor, with the first year to be served without the benefit of parole, probation, or suspension of sentence. With regard to count three, the trial court sentenced defendant to twenty years imprisonment at hard labor, with five years to be served without the benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently with each other.

Also on July 14, 2010, the State filed a multiple offender bill of information against defendant, alleging that he was a second felony offender. After he stipulated to the allegations in the multiple bill, the trial court vacated defendant’s original sentence on count three and sentenced him to twenty years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence.

Defendant now appeals, alleging that the district court erred in denying his motion to suppress evidence and his motion to suppress statement. He specifically contends that the evidence should be suppressed because there was no articulable suspicion or justification for the protective sweep of his apartment, and further that the statement should be suppressed under the “fruit of the poisonous tree” doctrine. The State responds that defendant’s pleas were not entered pursuant to State v. Crosby, and that defendant waived his appellate rights by entering unqualified guilty pleas.

| ¿ANALYSIS

It is well settled that a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. However, a defendant may be allowed appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Under Crosby, supra, a defendant may reserve his right to appeal a prior adverse ruling of the trial court. A defendant who fails to specify which pretrial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope.

In the present case, although defendant argues that he filed this appeal pursuant to Crosby, the record does not reflect that defendant, who was represented by counsel, specified at the time he entered guilty pleas that his guilty pleas were being made pursuant to Crosby. Instead, defendant entered unqualified pleas of guilty. The signed waiver of rights forms and colloquies in the trial court are void of any suggestion that the guilty pleas were made subject to the reservation of appellate review of the denial of defendant’s motions to suppress.

When defendant contends in his brief that this appeal was filed pursuant to Crosby, he merely references his Motion for Appeal found in the record, rather than his guilty plea proceedings, and concludes that a Crosby appeal was allowed with direct permission of the trial judge. The trial judge signed an Order granting defendant’s Motion for Appeal. We find that the mere mention of Crosby in a | ¿motion for appeal is not sufficient to reserve appellate rights. In State v. Michael , this Court recognized the following:

Although, within a Motion for Appeal filed on the day of sentencing, the defendant through counsel asserted “that his guilty plea was entered only after the trial court had ruled adversely on several pre-trial motions” and moved to appeal under the authority of State v. Crosby, infra, such request does not preserve the right to appeal those issues, even though an appeal is granted by the trial court.

This Court found that “[t]he failure of the defendant to expressly stipulate that he was reserving his right to review at the time he entered a guilty plea would result in a waiver of that right.” Id. (Emphasis in original.) This Court has consistently held that a defendant’s failure to reserve the right to appeal under Crosby at the time he enters his guilty plea precludes his right to appeal the trial court’s ruling on a motion to suppress.

In the present case, defendant did not tender his guilty pleas pursuant to Crosby, and therefore, we find that defendant did in fact waive his right to appellate review of the arguments presented herein. ,

ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920, State v. Oliveaux, and State v. Weiland. Our review reveals several errors.

First, with regard to count one, the trial court imposed an illegally lenient sentence on defendant. At the time of defendant’s offense, LSA-R.S. 14:95.1 |f,provided the following penalty range for someone convicted of being a felon in possession of a firearm:

B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

In this case, defendant was sentenced to ten years imprisonment at hard labor with the first year of the sentence to be served without the benefit of parole, probation, or suspension of sentence. As such, the trial judge erred in restricting only the first year of the sentence instead of the entire sentence. Under LSA-R.S. 15:301.1 and State v. Williams, however, a statute’s requirement that a defendant be sentenced without the benefit of parole, probation or suspension of sentence is self-activating. No corrective action is therefore required.

The same sentence was also imposed without the mandatory fine of “not less than one thousand dollars nor more than five thousand dollars.” Under LSA-C.Cr.P. art. 882(A), this Court has the authority to correct an illegally lenient sentence, despite the failure of the parties to raise it. This authority is permissive rather than mandatory. An appellate court should refrain, however, from employing errors patent review to review guilty pleas about which defendant makes no complaint and which resulted in dispositions of the case favorable to the defendant. Accordingly, we decline to exercise our authority in this regard.

We further note some errors in the commitments. First, the multiple bill commitment reflects that defendant was sentenced under the multiple bill statute, but does not reflect defendant’s specific status as a multiple offender. The |7transcript reflects that defendant admitted to being a second felony offender. This Court has recognized a similar matter to be an error patent. In State v. Defrene, the transcript reflected that the defendant pled guilty to being a second felony offender while the commitment reflected that the defendant was “sentenced under the Multiple Bill statute.” This Court remanded the matter to the trial court for the limited purpose of correcting the commitment to state that the defendant was sentenced as a second felony offender. We do likewise here.

Additionally, the commitment for the two convictions reflects that defendant pled guilty to “DIST/POSS OF A CDS marijuana.” More accurately, defendant pled guilty to “possession with intent to distribute marijuana.” Also, the commitment reflects that defendant pled guilty to “CONVICTED FELON WITH A WEAPON.” More accurately, defendant pled guilty to “felon in possession of a firearm.” We accordingly remand this matter to the trial court for the limited purpose of so clarifying the commitment.

Finally, there is a discrepancy in the commitment regarding defendant’s enhanced sentence. The commitment reflects that defendant’s enhanced sentence was to run concurrently with the sentences imposed in case numbers 09-2898 and 09-3032. The colloquy, as well as the waiver of rights form from the multiple offender proceedings, indicate that defendant’s twenty-year enhanced sentence was to run concurrently with “all the other charges.” When the trial judge actually imposed the sentence, however, he did not expressly state that defendant’s sentences would run concurrently. Despite this discrepancy, it is clear from the record that all sentences imposed on defendant on his sentencing date, July 14, 2010, were to run concurrently. We accordingly remand this matter to the trial court for the limited purpose of clarifying the commitment to confirm that ^defendant’s twenty-year enhanced sentence is to run concurrently with all other sentences that were imposed on defendant on his sentencing date, July 14, 2010.

CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions and sentences and remand this matter to the district court for the limited purpose of correcting the commitments as noted above and to make the entries in the minutes reflecting these changes. We further direct the Clerk of Court to transmit the original of the minute entries to the officer in charge of the institution in which defendant is being held.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Count two of the bill of information, which involved a charge against a co-defendant, was ultimately dismissed by the State.

      . 338 So.2d 584 (La.1976).

      . State v. Crosby, 338 So.2d at 586.

      . State v. Reed, 10-527 (La.App. 5 Cir. 2/15/11), 61 So.3d 74, 77.

      . State v. Richardson, 09-714, p. 5 (La.App. 5 Cir. 2/9/10), 33 So.3d 903, 906-07, writ denied, 10-0526 (La.10/15/10), 45 So.3d 1109.

      . In his Motion for Appeal, defendant moved for an Order of Appeal "returnable on a date to be fixed by this Honorable Court pursuant to State v. Crosby."

      . Crosby was not mentioned in the trial court’s Order granting defendant’s appeal.

      . 454 So.2d 847, 850 (La.App. 5 Cir.1984).

      . State v. Richardson, 33 So.3d at 907.

      . We note that defendant, in a writ application filed in this Court, challenged the trial court’s denial of his motion to suppress. On May 28, 2010, this Court denied defendant’s writ application finding "no error in the ruling of the trial court denying relator’s motion to suppress.” State v. Turner, 10-K-300 (La.App. 5 Cir. 5/28/10) (unpublished writ disposition).

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . 00-1725, p. 10 (La.1/28/01), 800 So.2d 790, 799.

      . See State v. McKenzie, 09-893 (La.App. 5 Cir. 2/15/11), 61 So.3d 54, 61.

      . State v. Welch, 09-138, p. 12 (La.App. 5 Cir. 10/27/09), 28 So.3d 293, 300, writ denied, 09-2662 (La.5/28/10) 36 So.3d 246.

      . State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136 (per curiam).

      . See State v. Caccioppo, 10-385 (La.App. 5 Cir. 2/15/11), 61 So.3d 61, 66.

      . 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34.

      . See LSA-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).