author: JUDE G. GRAVOIS, Judge.

text:
    Thelma and Richard BERRY v. VOLUNTEERS OF AMERICA, INC., Forrest Towers II, Limited Partnership, and the Parish of Jefferson.
    No. 10-CA-832 C/W 10-CA-833.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.
    John A.E. Davidson, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Daniel A. Ranson, Michael D. Peytavin, Attorneys at Law, Gretna, LA, for Defendant/Appellee.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ¡^Plaintiffs, Mr. and Mrs. Richard Berry (“the Berrys”), appeal a summary judgment granted in favor of defendant, the Parish of Jefferson (“the Parish”), dismissing their claim for damages and other relief stemming from the alleged arbitrary and capricious re-zoning of their property by the Parish, as well as the imposition of a building moratorium by the Parish.

After thorough consideration of the record, for the following reasons, we reverse the trial court’s grant of summary judgment herein and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The Berrys own two contiguous parcels of property, containing a total of 4.4 acres, known as Lot 2 of Block 15 and Lot 2 of Block 16 of Elmwood Subdivision, Section “D”, on Behrman Highway on the west bank of Jefferson Parish (“the |aBerry property”). Volunteers of America, Inc. (“the VOA”) approached the Berrys about purchasing their property for development of a high density, multi-unit housing facility for the elderly. On October 13, 2006, the Berrys and the VOA entered into a purchase agreement for the property. At the time the purchase agreement was entered into, and for many years prior thereto, the Berry property was zoned as Multiple Use Corridor District (“MUCD”), which allowed for mixed commercial use of the property. This zoning designation was consistent with the VOA’s anticipated use of the property. Pursuant to the purchase agreement, the Berrys permitted the VOA to have access to their property to initiate a number of actions with respect to its proposed development on the property. The VOA contacted the Parish Planning Department to ascertain the suitability of the land for its anticipated project. It also proceeded to prepare a site plan for the project as required by the Parish Planning Department. In October of 2006, the Parish Planning Department issued two letters to the Louisiana Housing Finance Agency, which was involved with the financing of this project for the VOA, confirming that the Berry property was properly zoned (MUCD) for the VOA’s proposed development.

As the VOA proceeded with these initial actions for its proposed project, on February 7, 2007 the Parish Council adopted a resolution requesting the Parish’s legislative delegation “to introduce, support and endeavor to have enacted the appropriate legislation relative to requiring the Louisiana Housing Finance Authority to obtain approval of the local governing authority prior to the disbursement of tax credits in either the incorporated municipalities in Jefferson Parish or in the unincorporated areas of Jefferson Parish.” Further, on March 28, 2007, the Parish Council adopted a resolution calling for the implementation of a zoning and land use area study (“the study”) of “those properties generally 14bounded by Behrman Highway, Peter Street, Industry Canal and Oakwood Canal; with the intent of reclassifying the properties in these areas from their existing zoning and Future Land Use Map categories to R-1B Suburban Residential District and the most appropriate Future Land Use Map categories.” This resolution specifically ratified a similar resolution adopted by the Parish Council on January 10, 2007.

The study area encompassed 23.67 acres and included the Berry property. Pursuant to the Parish Code, a moratorium was imposed for up to one year on the issuance of building permits in the area covered by the study, effectively halting the VOA project. The study eventually concluded with the Parish Council adopting an ordinance on December 12, 2007 changing the zoning applicable to the Berry property from MUCD to C-l (Neighborhood Commercial District) for the front portion of the Berry property along Behrman Highway, and to R-1A (Single-Family Residential) for the remaining rear portion of the Berry property. These zoning changes were in part consistent with the Parish’s 2003 Comprehensive Land Use Plan for the area encompassing the Berry property. These zoning changes were, however, inconsistent with the VOA’s planned use of the property, effectively killing the project.

The Berrys filed two separate suits concerning this matter. In their first suit (No. 641-845), filed on February 21, 2007, the Berrys sought to enforce their purchase agreement with the VOA (and its alleged assignee, Forest Towers II, Limited Partnership), and to enjoin the Parish from using the moratorium imposed in conjunction with the study to prevent the issuance of a building permit for the Berry property. After the trial court sustained an exception of prematurity filed by the Parish, this Court in an earlier appeal reversed the ruling of the trial court on the exception, thereby allowing the Berrys to proceed with their suit. (See Berry v. Volunteers of America, Inc., et al, No. 08-184 (La.App. 5 Cir. 9/16/08), 996 So.2d 299.) After the Parish re-zoned their property, as set forth above, on January 7, 2008 the Berrys filed a second suit against the Parish (No. 654-717), challenging the moratorium and re-zoning of their property as being violative of their constitutional rights under their right to contract, as amounting to a taking of their property without just compensation, and as being violative of the Louisiana Constitution’s prohibition against age discrimination. The Berrys also claimed damages resulting from the Parish’s said actions. After these suits were consolidated, the Parish filed a Motion for Summary Judgment, which the trial court granted. The Berrys have timely appealed the trial court’s grant of summary judgment against them herein.

STANDARD OF REVIEW AND APPLICABLE LAW

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or | (¡more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-680, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 648. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard, v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.

Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La.1989); Greer v. Dresser Indus. Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235; Helwick v. Montgomery Ventures Ltd., 95-765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, writ denied, 96-175 (La.3/15/96), 669 So.2d 424.

In determining whether an issue is genuine for purposes of a summary judgment, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828; Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490; Helwick v. Montgomery Ventures Ltd, 95-0765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306.

17The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety and welfare of the public. Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982), citing Folsom Road Civic Ass’n v. Parish of St. Tammany, 407 So.2d 1219 (La.1981), Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974). Zoning ordinances are presumed to be valid; the party attacking the ordinance bears the burden of proving that it is unconstitutional or that it was applied in an arbitrary and discriminatory manner. Id

Specifically, the exercise of the governing body’s police power regarding zoning regulations will be upheld unless it is shown that there has been an abuse of discretion or excessive use of power, or that the action taken was arbitrary or unreasonable or that it bears no relation to the health, safety, or general welfare of the public. Boudreaux v. Braun Inv., L.L.C., 03-1070 (La.App. 5 Cir. 2/23/04), 869 So.2d 180, 187, citing Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (La.1990).

ALLEGATIONS AND ARGUMENTS OF THE PARTIES

On appeal, the Berrys argue that the trial court made an improper application of the legal standard on the motion for summary judgment. They argue that their allegations and evidence of bad faith constitute issues of fact that preclude summary judgment. They contend that ad hoc zoning is an improper use of the police power, and that substantive due process violations do not require proof that all use of their property has been denied before damages are awarded.

The Berrys have asserted that the zoning in place at the time the purchase agreement with the VOA was executed was consistent with and allowed for the VOA’s intended elderly housing development. They also have alleged that upon | ¡¿earning of the purchase agreement with the VOA, representatives of the Parish (specifically, a certain Parish councilman), with the express intention of blocking the elderly housing development, called for the implementation of the zoning study, under the authority of Section 40-880 of the Jefferson Parish Code of Ordinances, to reclassify the Berry property as “single family residential.” As noted above, such a study had the practical effect of prohibiting the issuance of any building permits in connection with this property for a period of up to twelve months. The Berrys argued that the study rendered the sale to the VOA impossible, and further was initiated in bad faith and solely for the purpose of re-zoning the property with the object of denying the contemplated VOA development. The Berrys have asserted that the Parish’s actions in making the study request and in implementing the moratorium were arbitrary and capricious and in violation of their vested rights as property owners.

The Parish’s Motion for Summary Judgment argued that all actions taken by the Parish regarding the Berry property were “proper exercises of the Parish’s police power as granted by the Louisiana Constitution” and therefore the Parish was entitled to judgment as a matter of law. The Parish contended that at the time of the adoption of the Parish Comprehensive Land Use Plan in 2008, the Berry property was zoned Mixed Use Corridor District, and that the Comprehensive Land Use Plan designated the future use of the Berry property for low to medium density residential developments. Because the VOA’s proposed use of the property was permitted in a MUCD zoning district but was inconsistent with the use provided by the Parish’s 2003 Comprehensive Land Use Plan, the Parish Council acted properly and reasonably in adopting the resolution calling for the study, during which the moratorium on the issuance of building permits for a period of up to twelve (12) months was properly implemented.

|9The Parish asserted in its Motion that the action of the council calling for the study was consistent with the requirements of the Parish Comprehensive Land Use Ordinance, which requires that all related parish resolutions, ordinances and regulations be consistent with the uses set forth in the plan. Accordingly, the Parish argued, calling for the study was merely the Parish Council exercising its zoning powers granted by the Louisiana Constitution, and as such, the study could not be called a taking or an abuse of power.

The Parish supported its motion with the affidavit of Edwin Durabb, the Director of the Planning Department for the Parish. Attached to his affidavit was the Land Use Study Report addressing the study area in question, and the Ordinance, proposed by Councilman Christopher Roberts, that called for the study, as well as excerpts from the deposition of Councilman Roberts, and other attachments.

In their second suit, the Berrys itemized the following seven specific facts in their Petition for Damages which in their opinion demonstrated the bad faith of Parish officials in this matter, to-wit:

1) The enactment of a resolution by the Jefferson Parish Council requesting that the Louisiana Housing Finance Agency, which issue tax credits for the construction of affordable housing, not issue any such credits without prior permission of the Parish of Jefferson.
2) The enactment of a resolution by the Jefferson Parish Council requesting that the Louisiana State legislature grant the Parish of Jefferson veto power over the issuance of any tax credits issued by the Louisiana Housing Finance Agency concerning developments in the Parish of Jefferson.
3) In October of 2006, Councilman Roberts publicly objected to the construction of the Volunteers of America project since “You would be having folks in Orleans Parish who lived in public housing complexes enter Jefferson Parish. That’s just not something I’m interested in.”
4) At a public meeting of the Terry-town Civic Association which was to permit representatives of the Volunteers of America to |inpresent the development to residents of the area, Councilman Roberts was first recognized to address the Association. The Councilman addressed the Association in an intentionally pejorative manner to cast a negative light on the development even before the VOA could make its presentation.
5) In October of 2006, Councilman Chris Robert said he did not want a new development in the First District of the Parish of Jefferson if it invited “poor New Orleanians.”
6) Without factual basis, Councilman Chris Roberts publicly criticized VOA’s management of the facility which this new proposed development was designed to replace.
7) On January 10, 2007, contrary to the customary procedure, without prior public advertising of the resolution, and with the purpose of blocking the low income, minority, elderly, and disabled development, Councilman Chris Roberts submitted a resolution to the Jefferson Parish Council to have the Jefferson Parish Planning Department conduct a zoning study to rezone this property, located on a high traffic corridor, to a large lot residential classification.

The Berrys filed a Memorandum in Opposition to the Parish’s Motion for Summary Judgment and attached twenty-four exhibits, including: copies of letters from the Parish Planning Department certifying that the Berry property was zoned MUCD when the purchase agreement between the Berrys and the VOA was executed, which zoning designation allowed for the construction of elderly housing developments on the Berry property; the Report of the land use study on the property in question commissioned by the Parish Council; an affidavit of Mr. Berry; resolutions of the Parish Council requesting and authorizing the study; excerpts from various depositions; and a detailed appraisal report of the Berry property commissioned by the Berrys. The Berrys asserted that their Opposition not only satisfactorily documented the allegations contained in their petition, but also established additional specific issues of fact, as follows:

1) The moratorium was imposed in response to announced development plans by the VOA to construct the development.
2) The zoning proposed by the moratorium and the final zoning imposed by the Parish Council was inconsistent with its prior zoning Inactions in the Behr-man Highway Corridor which called for MUCD zoning for over twenty years.
8)The final zoning imposed by the Parish makes half of the property so expensive to develop as to make the value of the property “speculative.”
4) Councilman Roberts introduced ordinances and zoning studies with the specific intention of blocking the lawful development of the property, after the Parish Planning Department had issued three separate certifications that the property was suited for the development.
5) Three of the ordinances submitted by Councilman Roberts were “from the floor” without prior advertisement or notice. In fact, the sudden notice providing for the moratorium was so obviously submitted in bad faith that the Parish Council, in an effort to provide the gloss of reasonability, advertised and readopted the same ordinance.
6) Councilman Roberts publically opposed the development proposed for plaintiffs’ property by stating that occupants of such developments as “ignorant or lazy.”
7) Councilman Roberts publically stated that he was not interested in Orleans parish residents moving to Jefferson Parish into such a proposed development.
8) The moratorium/zoning proposal of Councilman Roberts was to re-zone the property to R 1-B, a large lot designation found primarily in River Ridge — not on commercial thoroughfares such as Behrman Highway.
9) Councilman Roberts appeared at a public forum denigrating the VOA proposal, before representatives had an opportunity to make their presentations.
10) The re-zoning process was accomplished without any notice to the Berrys, except for a Zoning Change sign posted on the vacant property which the Berrys do not visit regularly. In the past, when a neighboring property wanted to change the appearance of a gate, the Berrys received written notice.
11) Whereas the Parish Council encouraged the development of non-affordable senior citizen housing with tax incentives, street revocations and re-zonings on the east bank of Jefferson Parish, the same Council re-zoned the land, against the property owners’ will, to prevent the construction of affordable housing for seniors on the west bank.
12) The proposed facility complied with the MUCD zoning, before sudden imposition of the moratorium.

| igThe Parish addressed each of these assertions by the Berrys in the Parish’s Reply Memorandum to the Berrys’ Opposition filed in the trial court, arguing that none of these assertions made by the Ber-rys establish bad faith by the Parish under any circumstances.

ANALYSIS AND FINDINGS

Our de novo review of this matter convinces us that the Berrys’ Opposition has alleged facts that sufficiently met the Berrys’ burden under LSA-C.C.P. art. 967 and properly placed at issue whether the Parish Council’s enumerated actions in calling for the land use study and in passing the ordinance re-zoning the Berry property that effectively put an end to the VOA project on the Berry property were an abuse of discretion or excessive use of power, or that such action taken was arbitrary, unreasonable, or in bad faith. We reach this conclusion because on the record before us, we are unable to discern whether the acts of the Parish Council in general, and of Councilman Roberts in particular, were the legitimate exercise of the Parish’s zoning authority or were undertaken with the specific intent to thwart the Berrys’ desire to sell their property to the VOA and the VOA’s desire to proceed with its proposed development. Given that a resolution of these issues involves the determination of the credibility of witnesses and of subjective facts, the matter was not proper for resolution by summary judgment.

Further, the trial judge’s comments in its oral ruling on the merits of the Parish’s Motion for Summary Judgment show that the court was to a certain extent considering the eventual merits of the Berrys’ suit, which the trial court is not | ^allowed to do when considering the merits of a motion for summary judgment. Instead, the trial court should have focused only on whether the Berrys’ Opposition had successfully met their statutory burden under LSA-C.C.P. arts. 966 and 967 to defeat the Parish’s Motion for Summary Judgment. We find that it did.

Both parties cite to Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (La.1990) in support of their positions. The most pertinent fact of the Palermo case at this procedural juncture is that in that case, the trial court’s finding that the policy jury’s exercise of authority was in good faith was made after a full trial on the merits.

CONCLUSION

For the above reasons, we reverse the trial court’s grant of summary judgment in favor of the Parish of Jefferson. This matter is remanded to the trial court for proceedings consistent with this opinion.

REVERSED

      . The trial court commented as follows in his oral ruling granting the Parish's Motion for Summary Judgment: "Alright. I think it's— the parish is right. The Court can't supplement its judgement for — or act in a legislative capacity to supplement its judgement for that of the counsel [sic]. I think that the burden in this case is so high. I assume all the facts that you state are true. I don’t know that that reaches the level of bad faith or arbitrary and capricious.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Larry Romel ROBERTSON v. Tonya Thomas ROBERTSON.
    No. 10-CA-926.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Juan A. Byrd, Attorney at Law, Luling, LA, for Plaintiff/Appellant, Larry Romel Robertson.
    Lauren Davey Rogers, Bohannon, Rogers & Associates, Attorney at Law, Ken-ner, LA, for Defendant/Appellee, Tonya Thomas Robertson.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|?.This is a divorce proceeding in which the parties each sought use of the family home, child custody, and child support. The plaintiff, the father, also sought spousal support. The trial court ruled in favor of the defendant, the mother, granting her use of the family home and domiciliary custody of the children, and denied the father’s request for spousal support. The father appeals. We affirm.

FACTS

Larry Romel Robertson and Tonya Thomas Robertson were married in November 1998 and established their domicile in Luling in St. Charles Parish. Three children were born of the marriage: a girl, B.R. (born November 17, 2000); two boys, C.R. (born July 14, 2005), and J.R. (born April 7, 2008).

On January 29, 2010, Larry Robertson filed a petition for divorce pursuant to La. C.C. Art. 102. He alleged he desired a divorce because he had been “kicked out” of the family home by the defendant some four months previously. He alleged that although he left against his will, he continued to take the children to school and to pick them up from school every day, and that he frequently cared for them on weekends. He alleged that prior to being kicked out, he stayed home and took care of the children exclusively for at least 18 months. He alleged that he is |sfree from fault and that Tonya Robertson is verbally abusive to him. He stated that Tonya Robertson works two jobs, is gone constantly, and travels out of town without petitioner or the children. He sought to be granted joint custody of the children and to be named domiciliary parent, to be granted exclusive use of the family home, and to be awarded child support and spousal support.

Tonya Robertson made a reconventional demand for an Article 102 divorce. She sought primary domiciliary custody of the children, exclusive use and occupancy of the family home, and to be granted child support pursuant to the guidelines.

The matters of custody, support, and use of the family home were tried on June 21, 2010. At the hearing, Tonya Robertson testified she lives in the family home with her three children and her mother, who helps her with the children. Tonya is a pharmacist employed by CVS. Her job title is pharmacist-in-charge, which requires her to travel occasionally to other CVS locations. She earns $56 an hour with CVS. She also works a second job as a contract pharmacist at a methadone treatment center in Baton Rouge, owned by the CRC Group, where she earns $47 an hour.

Tonya testified that her husband, Larry Robertson, is “lazy” because “he worked a little bit,” but she had to push him for everything. She had to wake him up in the morning, she took care of all the bills, and when she came home after working 14 hours, she would have to bathe the children and iron clothes. She said he stayed in bed all day, then when he heard her car pull up in the driveway he would rush to wash dishes and do housework. She testified she considered him an “okay” father but not a “good” father, because he waited for her to do everything for the children, instead of caring for them himself.

LTonya acknowledged that Larry would run errands during the day involving business that affected both of them, such as going to the bank. She said he repeatedly lost jobs because he was frequently late for work. She said he had not worked for two years at the time of the hearing because his driver’s license was expired.

Tonya denied that Larry took care of the children regularly; she said that when he picked them up after school, he would bring them to her mother to care for them. He would drop them off at school in the morning when Tonya had to get to her alternative job, but she was working at CVS — at a store near their home — she dropped off the children at school. She said that often when she got home from work late at night after working long hours, she would find the children still awake and hungry, while Larry would be sleeping.

She admitted that for part of the time they had only one working vehicle, and he would drive her to work and the kids to school.

Tonya testified that sometimes when she had to work out of town, Larry and the children would come also and stay with her at a hotel. She stated that since their separation, she had asked Larry to allow her to bring their daughter on a vacation out of the country, but he refused to approve the child’s going unless he could go on the vacation also.

Tonya identified copies of her W-2 forms for 2009, which showed that her earnings from the CRC Group were $69,729.00, and her earnings from CVS were $185,388.00. She stated that despite the amount of her earnings, they struggled financially because they owe a lot of money to the Internal Revenue Service. Asked whether she had given any money to Larry since they separated, she said he had withdrawn money from their joint account, while she had kept up with their [5debts, including payments to the IRS, the children’s school tuition and daycare costs, as well as food, clothing, etc. She had given Larry money for car repairs.

Tonya admitted that Larry had been unable to get a job as a truck driver, his former occupation, because his license was suspended due to their owing money to the IRS.

Tonya also testified to several incidents of domestic violence, in which Larry threatened her with weapons or with physical harassment. She did not call police, however.

Tonya said that when Larry was still living in the family home, sometimes after he picked up the kids from school, he would bring them to her mother’s house for her mother to watch. He did that despite the fact that her mother had been working all day, while he had not been working. In addition, he would wait until Tonya got home from work late at night before doing housework and laundry. The last year he lived in the home and was bringing the kids to school, their daughter was tardy over 63 times. After Larry left and the children were being brought to school by Tonya, the children were tardy only once.

Tonya testified further that since leaving the family home, Larry has been living in his father’s home in Marrero. His sister and her daughter also live there. Tonya stated that the family home in Luling is her separate property.

Charlene Pierce testified she works as housekeeper for Tonya Robertson on an every-other-week basis. She had worked there on a weekly basis from 2008 until the fall of 2009. When she went to the house, she would observe the children were running around unattended, the baby’s diaper would be wet, and the children had not been fed. Tonya was at work most of the time. Larry would be in the bedroom. His daughter told Pierce that her father was sleeping. Pierce never went into the bedroom. Pierce said sometimes she was there for two hours before seeing |r,Larry. Pierce said she “slowed down” from going there because she didn’t want to be a child care provider. She talked to Tonya about the situation, but it really didn’t change much.

Pierce said she observed Larry spanking the oldest child, B.R., for not tending to the younger children, although “she’s only a child herself.” It occurred often enough that Pierce spoke to Tonya about it.

Pierce said her duties include sweeping, mopping, cleaning the children’s room, dusting, cleaning windows. She did more than she was supposed to do as a housekeeper, because she changed diapers, dressed the children, cooked breakfast for them. It’s not her job to tend to their children, she said.

Christy Hawxhurst, sister of Larry Robertson, testified she frequently visited the Robertson home when her brother was still living there. She said he and his wife had a role reversal, in that Larry was the homemaker and took care of the children. She denied that he was lazy, and said he is sad at being unemployed for so long, because he was very good at his job as a truck driver. He lost his truck-driver license, however, due to the tax problems, and so could not work as a truck driver.

Hawxhurst stated she used to go over in the afternoons three or four times a week. She said that Larry was good with his children and his children loved him. Hawxhurst testified Tonya was never home when Hawxhurst went over because Tonya was “always working.” Hawxhurst said she often stayed through the evening until Tonya came home at around 10:80 p.m. She testified she had tried to demonstrate to her brother how to clean house.

Tonya Robertson, recalled to the stand, contradicted Hawxhurst’s testimony, saying she doubted her sister-in-law had come to their home three or four times a week because “Christy works a lot, just like me.” Maybe she would come over 17when she wasn’t working. When Christy came over it was late at night. Tonya knew her sister-in-law came because sometimes Christy was still there when Tonya arrived home, and Christy would offer her food that she had cooked.

Debra Woods Thomas, Tonya Robertson’s mother, testified she moved into the Robertson home after Larry left, to help her daughter with the children. She has a home of her own, but is staying full time with her daughter for as long as she is needed. She works in the St. Charles Parish school system during the school year as a day care assistant.

Thomas testified she began taking the children to school after Larry refused to bring them. Larry would only bring the children to school if they called him and asked him for help. Thomas had to dress the children for school and sometimes Larry would be late picking them up, which made her late for her own job.

Thomas stated that while Larry was still living in the home, she helped with her grandchildren at least three or four days a week and every weekend. She did that since the oldest child was born. After Thomas got off work, Larry would bring the children to her. She helped them with homework, she bathed them, and she kept them. He would come back and get them when Tonya got off work. After a while, Thomas said, she told her daughter that since she had to get up at five in the morning to go to work every day, she didn’t feel she should continue watching the kids when Larry was not working. Thomas said he would bring them to her every Saturday morning at 8:00 and pick them up at 8:00 p.m. every Saturday evening, until she stopped keeping them.

Thomas said her daughter has always been a caring and devoted mother who really wants to spend more time with her children, but she has to work because of the financial situation she’s in. Thomas also described an incident when the family were all traveling together in Puerto Rico, in which Larry kicked the older boy — [who8 was four at the time — because the child had kicked his sister. Thomas said that when she intervened, telling her daughter to stop him, he walked up to Thomas and put his hands in her face, telling her, “I could have killed you. You don’t tell me what to do with my children.” Thomas said she grabbed him by the chain and her nails scratched him.

Thomas described another incident in which Larry grabbed the little boy by the shirt and “threw him across the room.” She said that on Christmas Day 2009, Larry came over to spend time with the children. He and Tonya got into an argument, and in front of the children, Larry grabbed a knife and threatened to kill himself, saying, “I’m going to kill myself. If I can’t have you, I’m going to kill myself.”

Thomas testified to another incident in which Larry picked up the daughter, B.R., from school despite Tonya’s instruction that he was not to take the child, and then went to the middle child’s nursery school. At both schools Larry had confrontations with the school staff members over whether he was authorized to take the children.

Larry Robertson testified he was put out of the family home by his wife, Tonya. He has been unemployed for three years. He formerly worked as an over-the-road truck driver. After losing his job, he began trying to take care of the household, care for the children, whatever a normal father does. He testified that after he stopped working he would give the children breakfast in the morning and dinner in the evening, bathe them at night, get them ready for school in the morning, take them to doctor’s appointments. He denied that his mother-in-law ever took the children to doctor’s appointments.

Larry also testified that when he was still in the family home, he would take care of his wife when she came home from work by having the computer ready to |flreplay her soap operas, and he would have a bath prepared for her. He said the children would usually be watching TV when their mother arrived home, or the younger ones would have gone to sleep and the older child, the daughter, would still be awake.

Larry testified he lives in his father’s home, and when his children visit him they stay there in an extra bedroom. If he were to be made domiciliary parent, he said, he would try to get adequate housing for him and the children. Asked how he would pay for it, he said he is seeking employment. He named several places where he had applied since being put out of the house in October 2009. He said he continues to put in applications, and has been offered a job by BP Oil, pending a background check.

Asked about the tax debt owed to IRS, Larry was uncertain of the amount, and admitted he had not attended the last minute meeting with their tax advocate because he “wasn’t made aware of it.”

Questioned about an incident at the nursery school where his son went, he said he went there not to pick up his children, but to visit a friend who worked there, Vanessa Pierce. He had told his wife he was going to be taking their daughter from school that day to spend the day with her and shop for her dance revue, because there was early dismissal. He phoned his wife after he had picked the child up, but his wife told him she had someone coming to pick up the child.

He stated his driver’s license was suspended for three years, but as of the time of trial it had been reinstated. Two years of the suspension were for non-payment of state taxes, with an additional year for driving while the license was suspended. There may have been some traffic tickets involved, too.

Larry denied that he ever threatened to commit suicide in front of the children, and denied he ever threatened not to return the children to Tonya. He | instated he had not been treated for depression, and had not been to a counselor. He admitted that he sometimes used to leave the baby in his car seat for a long time, to keep him from crawling off the bed. He denied that he ever threw his child across the room (as described by his mother-in-law), and denied that he ever kicked the child. He denied that he ever spanked his daughter or every touched her physically to discipline her.

He admitted that he would usually be sleeping when the housekeeper came over. He said he would “doze off,” because he was doing work at night — laundry, or taking care of the baby if the baby was sick. Asked why he didn’t do laundry during the day, he said that when they had only one car, he was busy in the days chauffeuring his wife to and from work, driving the kids around, doing errands. Sometimes during the day he would work on something around the house that needed repairs, such as the plumbing, the water treatment system, the air conditioner, the electrical system.

The trial court rendered its judgment on June 22, 2010. The court awarded custody of the children jointly to both parents, with Tonya Robertson designated as the primary domiciliary parent, set out a schedule for visitation and holiday custody, granted Tonya Robertson use.and possession of the family home, and set rules for other matters such as providing clothing and transportation for the children for visitation. The judgment did not mention child support or spousal support, and specifically stated, “[A]ny relief requested by either of the parties and heard on the above hearing date and not specifically addressed herein be and is hereby denied.”

In Reasons for Judgment, the court found there is “a great disparity between the abilities and skills of the parties to manage the household, care for the children, and provide for the children.” The court stated:

In Basically, the mother has exhibited all of the skills necessary to raise children. She is a hard worker who makes a substantial salary as a pharmacist for CVS. In spite of her workload with CVS, the mother has been required to be primary caregiver in the children’s lives. The proof the mother adduced with respect to the father’s shortcomings in caring for the children was a strong statement of the father’s inability and/or lack of desire to be a primary caregiver for the children.
* * *
The fact that the father has shirked his responsibility towards his children on a consistent basis thwarts this process. The fact that the parties have gotten themselves into a huge financial bind (by being overextended in their finances and owing so much money to the IRS) forces the mother to work long hours, depriving the children of quality time with their mother.
The mother’s current arrangement and plans for providing for the children are in the best interests of the children. Their maternal grandmother is a positive force in their life. The structure that the mother and grandmother bring to the children’s lives bodes well for the children’s future. The father’s assertions that he couldn’t work for the past three years and his assertions of being a good parent while he was at home during those three years were not corroborated by the evidence and were, quite candidly, not believed by this court.
All things considered, the Court finds that current living arrangements are in the best interests of the children and will make them the judgment of this court.
In light of the Court’s ruling on custody, the requests by Mr. Robertson for child support and use of the family home are moot. However, he has also requested spousal support....
The Court cannot understand how an able-bodied man who is in great physical shape and is in the prime of his life doesn’t have a job. A marriage is not a meal ticket. It seems that all of the financial responsibilities in the marriage have been on the wife. This is untenable.
Rather than give spousal support herein, the Court will give Mr. Robertson practical advice: get a job. This request will be denied.

Larry Robertson filed a timely devolu-tive appeal. On appeal he assigns the following errors:

|12(1) The trial court erred in failing to award interim spousal support to Larry Robertson;
(2) The trial court erred in not naming Larry Robertson primary custodian of his minor children, with reasonable -visitation to Tonya Robinson;
(3) The trial court erred in not granting Larry Robertson’s request for child support for his minor children.

LAW AND ANALYSIS

Interim Spousal Support

Larry Robertson asserts the trial court’s ruling and reasoning for denial of his request for interim spousal support is clearly wrong and constitutes legal error. He argues he is now and has been unemployed for several years; his field of training (truck driving) is not available to him due to his license suspension for non-payment of taxes; he has remained unemployed due to tough economic times. He contends he has established he is in need of support through his own testimony and through his wife’s testimony. He states that Tonya earns over $18,000 per month and, despite her payments to the IRS and other household expenses, she still has the ability to pay spousal support to Larry. He contends the trial court’s inconsistency in its application of the law dictates a de novo review.

LSA-C.C. art. 98 provides that married persons owe each other fidelity, support, and assistance. A spouse’s right to claim interim spousal support is based on this statutorily-imposed duty of spouses to support each other during marriage. Comment (e) to LSA-C.C. art. 98 explains that the spouses’ duties under this article, as a general rule, are matters of public order from which they may not derogate by contract.
Interim spousal support is designed to assist the claimant in sustaining the same style or standard of living that he or she enjoyed while residing with the other 113spouse, pending the litigation of the divorce. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time for adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. The court may award an interim spousal support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. [Citations omitted.]

Hall v. Hall, 08-706, p. 4 (La.App. 5 Cir. 2/10/09), 4 So.3d 254, 257, writ denied, 2009-0812 (La.5/29/09), 9 So.3d 166.

In order to demonstrate need for interim periodic spousal support, the claimant spouse has the burden of proving that [he] lacks sufficient income to maintain the standard of living that [he] enjoyed while residing with [his] spouse. Carmouche v. Carmouche, 03-1106, p. 6 (La.App. 5 Cir. 2/23/04), 869 So.2d 224, 227.

The court shall consider a party’s earning capacity in light of all of the circumstances. Voluntary unemployment is a question of good faith on the part of the obligor spouse. The trial court’s finding as to whether the obligor spouse is in good faith is a factual determination which will not be disturbed on appeal absent an abuse of the court’s wide discretion. [Citations omitted.]

Bagwell v. Bagwell, 35,728, pp. 16-17 (La.App. 2 Cir. 3/8/02), 812 So.2d 854, 866.

We find no merit to Larry’s request for interim spousal support. He failed to submit proof of his expenses and needs. He is living in his father’s home, apparently without cost. Further, as pointed out by the trial court, Larry failed to prove he cannot find work. His testimony as to his job search was vague, although he did state he had been offered a job that was dependent on a favorable background check.

|14On the showing made, we find no abuse of discretion in the trial court’s denial of Larry’s claim for interim spousal support.

Child Custody

Larry contends the trial court’s denial of his request to be domiciliary custodial parent was manifestly erroneous. He asserts that Tonya “rarely interacts with the children” because she works 60 to 80 hours per week, sometimes leaving home before 8:00 a.m. and not returning until after 10:80 p.m. He states that when she returns home, in addition to the cleaning she testified she does, she watches soap operas. Further, she works most weekends. He argues this leaves Tonya very little time for her to be attentive to the children’s needs.

Larry cites his own testimony that he was the person primarily taking care of his children, bringing them to and picking them up from school, bring the daughter to her dance classes, and taking the children to doctor appointments or to the hospital when necessary. He asserts that Tonya never took them to doctor appointments, and that Tonya’s mother, Debra Thomas, took the older boy to the doctor only once, when he had an asthma attack.

With respect to the repeated tardiness of his daughter when he was taking her to school, he points to his testimony that often they were only two or three minutes late, and that Tonya sometimes took the children to school when she was working at the CVS near their home. He contends there is no evidence as to what portion of the tardy days are attributable to him and what portion to Tonya.

Larry also cites the testimony of his sister, Christy Hawxhurst, that he was good with his children and that he would clean the house when he was there. Larry also cited photographs he placed in evidence showing the house was in disarray and untidy after he moved out.

11sIn a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131.

La. C.C. art. 134 sets out 12 non-exclusive factors for the court to consider in awarding custody:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial, home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Robert v. Robert, 44,528, p. 2 (La.App. 2 Cir. 8/19/09), 17 So.3d 1050, 1052, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id., 44,528 at p. 3,17 So.3d at 1052.

Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the children. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. [Citations omitted.]

Bridges v. Bridges, 09-742, p. 6 (La.App. 5 Cir. 2/9/10), 33 So.3d 914, 918.

We find no manifest error in the trial court’s factual determination that the best interest of the children is to have their mother as domiciliary custodian. Larry Robertson’s testimony was directly contradicted in many respects by the testimony of Tonya Robertson and her witnesses. The trial judge stated emphatically that he did not find Larry believable. The testimony concerning Larry’s belated actions in caring for his children, and in particular the testimony regarding his temper and actions he took when angry, convince us the trial court was correct in its ruling that denied Larry primary domiciliary custody of the children.

Child Support

Larry asserts that if this Court determines that he is entitled to be named the primary custodian or to have shared custody with Tonya, then he is entitled to an 117award of child support calculated based on minimum wage for his and $17,000 per month income for Tonya.

Because we have affirmed the trial court’s decision denying domiciliary custody and shared custody to Larry, we pre-termit consideration of this assignment.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Larry Robertson.

AFFIRMED

      . We designate the children by initials to protect their privacy. See La. S.Ct. Rules, Rule XXXII, section 3.


text:
    STATE of Louisiana v. Mark S. CAMBRICE.
    No. 10-KA-26.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent Paciera, Jr., Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

Defendant Mark S. Cambrice appeals his conviction of first degree robbery, a violation of LSA-R.S. 14:64.1. On appeal, he argues two assignments of error. First, defendant contends that the evidence at trial was insufficient to support the verdict of first degree robbery. Second, defendant argues that the trial court erred in denying his motion to suppress his statement. After thorough consideration of the law and the evidence, we affirm defendant’s conviction. Following a review for errors patent, we vacate the multiple offender adjudication and sentence and remand for further proceedings.

PROCEDURAL HISTORY

On December 20, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark S. Cambrice, with armed robbery in violation of LSA-R.S. 14:64 and 14:64.3. Defendant pled not guilty at arraignment. Hearings on defendant’s Motions to Suppress Statement and | ^Identification were held on July 25, 2008 and February 20, 2009, and the motions were ultimately denied by the court on February 20, 2009.

On May 12, 2009, defendant proceeded to trial before a twelve-person jury. On May 13, 2009, the jury found defendant guilty of the lesser charge of first degree robbery, in violation of LSA-R.S. 14:64.1.

On May 22, 2009, defendant was sentenced to 25 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served. On the same day, the State filed a multiple offender bill of information alleging that defendant was a second felony offender. Following the hearing on the multiple bill on May 29, 2009, the court found defendant to be a second felony offender. The court vacated defendant’s original sentence and imposed an enhanced sentence of 40 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, in accordance with LSA-R.S. 15:529.1. Trial counsel objected to the sentence and filed a Motion to Reconsider Sentence, which was denied by the court. After sentencing, defendant filed a written motion for appeal, which was granted on May 29, 2009.

FACTS

On September 26, 2007, at approximately 3:15 a.m., Deputy Jesse Dormoy of the Jefferson Parish Sheriffs Office responded to a call regarding an armed robbery at a Shell gas station located at 500 Lapalco Boulevard in Gretna, Louisiana. After arriving at the scene, Deputy Dormoy interviewed the cashier at the Shell station, reviewed a video surveillance tape, and interviewed the cashier of |4a Chevron gas station across the street, who was also able to provide information regarding the incident at the Shell station.

Cheri Caire was working as a cashier at the Chevron station located at the intersection of Wall Blvd. and Lapalco Blvd., across the street from the Shell station, during the early morning hours of September 26, 2007. Sometime during the middle of her shift, which began at 10:00 p.m. and ended at 6:00 a.m., Ms. Caire was outside sweeping the parking lot and picking up garbage when a metallic green Mustang pulled into the station. Because the vehicle pulled up so fast, Ms. Caire dropped the broom and dustpan in the parking lot, went inside the store, and locked the door. The driver of the green Mustang approached and asked Ms. Caire to open the door. When Ms. Caire refused and told him to go to the window, the driver of the vehicle persisted, indicating that he wanted something to drink. When Ms. Caire again refused to open the door, the driver asked Ms. Caire if the Shell station across the street was open, and Ms. Caire responded affirmatively. The driver returned to his vehicle, and Ms. Caire observed the green Mustang proceed to the Shell station across the street.

Francis Glapion was working as an overnight cashier at the Shell station located at the intersection of Wall Blvd. and Lapalco Blvd. during the early morning hours of September 26, 2007. At approximately 3:15 a.m., Ms. Glapion was sitting at the register when a man entered the store, greeted her, and walked towards the cooler. When the man returned to the register, he said “[ljook here, this is a robbery.” Ms. Glapion looked up and saw that the man had a black gun in a little black pouch. She testified that both the inside of the Shell station and the drive-up area near the pumps were well lit. Ms. Glapion gave the man the money |.jn her drawer. After the man left, Ms. Glapion called her supervisor and then called the police, who arrived shortly thereafter. Ms. Glapion’s supervisor provided the police with a copy of the Shell station surveillance video.

Approximately one week later, in the early morning hours of October 4, 2007, Deputy Tammy Dore-Howard of the Jefferson Parish Sheriffs Office was on night patrol in Harvey when she conducted a traffic stop on a green Ford Mustang. Defendant was driving the Mustang and there were two other passengers in the vehicle. Deputy Dore-Howard conducted a names check through NCIC (National Crime Information Center), which revealed that defendant and both passengers had several attachments for their arrest. At approximately 3:00 a.m., Deputy Dore-Howard placed defendant and his passengers under arrest and transported them to the Jefferson Parish Correctional Center. Deputy Dore-Howard, noting that the green Mustang matched the description of a vehicle associated with a prior incident of armed robbery on Lapalco Blvd., notified her sergeant and the Robbery Division of the Jefferson Parish Sheriffs Office. Deputy Dore-Howard did not find a gun, a black pouch, or any other evidence related to the armed robbery that occurred the previous week in defendant’s possession or in the vehicle, and the vehicle was left at the scene of the traffic stop.

Sergeant John Carroll of the Jefferson Parish’s Sheriffs Office subsequently received a report from the Second District night shift advising that a black male driving a metallic green Mustang matching the description of the vehicle from the Shell station armed robbery had been arrested. Sergeant Carroll conducted a computer check on defendant and compared his physical description to the description of the suspect who had robbed the Shell station. The physical description of defendant matched that of the perpetrator of the Shell station robbery. Sergeant Carroll also pulled an AFIS (Automated Fingerprint | ^Identification System) photograph of defendant and compared it to the still photographs compiled from the surveillance video of the Shell station robbery. Sergeant Carroll determined that the photographs “looked like the same person.”

Sergeant Carroll obtained an address for defendant and, upon arrival, observed a metallic green Mustang in the driveway of the residence. Sergeant Carroll interviewed defendant’s niece and sister and determined that the Mustang was registered to defendant’s niece. After receiving verbal consent, Sergeant Carroll conducted a cursory search of the house and the green Mustang. Sergeant Carroll did not find a black gun or a black bag during his search. Defendant’s niece and sister further identified defendant as the person pictured in the still photographs compiled from the surveillance video of the robbery.

At approximately 3:00 p.m. on October 4, 2007, Sergeant Carroll went to the Jefferson Parish Correctional Center and located defendant, who was incarcerated on the unrelated attachments. Defendant agreed to speak with Sergeant Carroll and accompanied him to the Detective Bureau. Sergeant Carroll read defendant his rights and advised defendant that he was under investigation for armed robbery. Defendant indicated that he understood his rights, and subsequently waived his rights and agreed to make a statement and answer questions. Sergeant Carroll produced the still photographs made from the surveillance video and defendant identified himself as the person depicted in the photographs. Defendant also gave a recorded statement.

The following day, Sergeant Carroll met with the victim, Ms. Glapion, and showed her a photographic lineup that included defendant’s picture. Ms. Glapion positively, and without hesitation, identified defendant as the perpetrator who robbed her. During this interview with Sergeant Carroll, Ms. Glapion again indicated that the perpetrator had a gun, and described the gun as a black revolver.

At trial, Ms. Glapion identified defendant as the person depicted in the surveillance video and the still photographs obtained from the surveillance video. Ms. Glapion also identified the black bag in the still photographs as “the bag with the gun.” Ms. Glapion testified that the person in the surveillance video was the person who robbed her on September 26, 2007. Finally, Ms. Glapion testified that she had picked defendant out of a photographic lineup “[b]ecause that’s the person that I recognized from the robbery.” In court, Ms. Glapion positively identified defendant as the perpetrator of the robbery.

In direct contradiction to the testimony of Ms. Glapion, Sergeant Carroll, and Ms. Caire, and the recorded statement that he gave on October 4, 2007, defendant testified at trial that he stopped at the Shell station on his way to work to put gas in his green Infiniti, and that he had a black bag but did not brandish a gun. Defendant testified that he did not rob Ms. Glapion at the Shell station. Defendant further testified that after he was arrested for outstanding traffic attachments, he gave a statement to Sergeant Carroll at the Detective Bureau. Defendant testified, however, that the statement he gave to Sergeant Carroll was “not accurate at all” and that he “just had to tell him something, so [he] could get it over with.”

Defendant testified that the interview with Sergeant Carroll made him nervous and scared, and that Sergeant Carroll advised defendant that he could be charged with other crimes, including robbery of the Chevron station across the street, but that he could run them concurrently if defendant confessed. On cross-examination, defendant admitted that he was the person depicted in the still photographs from the surveillance video but again indicated that he was at the | «Shell station pumping gas. Defendant also admitted that he had prior convictions for attempted possession of a firearm and possession of cocaine. Finally, defendant testified that he lied to Sergeant Carroll during the October 4, 2007 interview to get out of other charges.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence at trial was insufficient to support the verdict. Defendant notes that there was no weapon recovered and that it was not discernable whether the person in the surveillance video had a gun in his hand. Defendant contends that because the State failed to establish beyond a reasonable doubt that the person who robbed Ms. Glapion had a handgun, it was reversible error for the jury to return a guilty verdict for first degree robbery. As such, defendant argues that a more appropriate verdict would have been simple robbery.

The State responds that LSA-R.S. 14:64.1 requires only that the defendant induce a subjective belief in the victim that he is armed with a dangerous weapon, and that the victim’s belief be objectively reasonable under the circumstances. The State contends the victim’s testimony at trial, including testimony that she believed the defendant was armed, that defendant informed her that he was committing a robbery, and that she complied with defendant’s demands for money, is sufficient to support defendant’s conviction for first degree robbery. Finally, the State notes that the victim positively identified defendant as the person who committed the robbery.

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) (quotation omitted). This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Thomas, 43,783, p. 5 (La.App. 2 Cir. 1/14/09), 2 So.3d 1181, 1184 (citing State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165).

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. Bailey, 04-85 at 4, 875 So.2d at 955 (citing State v. Cazenave, 00-183, p. 14 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151). It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement on the fundamental due process of law. Bailey, 04-85 at 5, 875 So.2d at 955. In the 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 requisite factual conclusion. State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 650 (citing State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787).

Ultimately, 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. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

In the present case, defendant was charged with armed robbery and ultimately convicted of the lesser charge of first degree robbery, in violation of LSA-R.S. 14:64.1. To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another or that is in the immediate control of another, by use of force or intimidation, while the offender is armed with a dangerous weapon. LSA-R.S. 14:64(A); State v. Thomas, 08-813, p. 6 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606, writ denied, 09-1294 (La.4/5/10), 31 So.3d 361; State v. Brown, 591 So.2d 791 (La.App. 5 Cir.1991).

Alternatively, first degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. Thomas, 2 So.3d at 1185 (citing LSA-R.S. 14:64.1(A)). To support a conviction for first degree robbery, the State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim’s belief was objectively reasonable under the circumstances. Id. (citing State v. Fortune, 608 So.2d 148 (La.1992); State v. Collier, 39,882 (La.App. 2 Cir. 8/17/05), 909 So.2d 654, writ denied, 06-0251 (La.9/15/06), 936 So.2d 1256). The statute excludes 1 [^unreasonable panic reactions by the victim, but otherwise allows the victim’s subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery. Id. (citing State v. Stills, 34,740 (La.App. 2 Cir. 6/20/01), 792 So.2d 782). Direct testimony by the victim that he or she believed the defendant was armed, or circumstantial inferences arising from the victim’s immediate surrender of his or her personal possessions in response to the defendant’s threats, may support a conviction for first degree robbery. Id. (citing Fortune, supra; State v. Caples, 05-2517 (La.App. 1 Cir. 6/9/06), 938 So.2d 147, writ denied, 06-2466 (La.4/27/07), 955 So.2d 684).

Encompassed in proving the elements of an offense, both of armed robbery and first degree robbery, is the necessity of proving the identity of the defendant as the perpetrator. State v. Scott, 06-134 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, 470; State v. Fuller, 07-319, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 49, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282. Positive identification by only one witness is sufficient to support a conviction. Fuller, 07-319 at 6, 980 So.2d at 49.

In the instant case, the jury was confronted with conflicting testimony offered by Ms. Glapion and defendant. Ms. Gla-pion testified that she was sitting at the register when a man entered the Shell station and walked towards the cooler. When the man returned to the register, he said “[l]ook here, this is a robbery.” Ms. Glapion looked up and observed that the man had a black gun in a little black pouch. Ms. Glapion gave the man the money in her drawer.

At trial, Ms. Glapion testified that she was “sure that [defendant] had a gun,” and that she would not have given defendant the money from the register had she not felt threatened and intimidated. Though Ms. Glapion did not see whether defendant was carrying anything when he entered the store, she testified that “he l^went towards the cooler to get whatever he had, which was his weapon.” Ms. Glapion indicated that when defendant made the demand on her for money, she saw “a little black pouch, and the weapon was in that.” Ms. Glapion described the weapon as a black, metal gun, and testified that she was absolutely positive that it was “a real gun.”

Ms. Glapion also positively, and without hesitation, identified defendant as the perpetrator. Ms. Glapion identified defendant as the person depicted in the surveillance video and the still photographs obtained from the surveillance video. Ms. Glapion testified that the person in the surveillance video was the person who robbed her on September 26, 2007. Finally, Ms. Glapion testified that she had picked defendant out of a photographic lineup “[b]ecause that’s the person that I recognized from the robbery.” As noted above, positive identification by only one witness is sufficient to support a conviction. Fuller, 07-319 at 6, 980 So.2d at 49.

The jury was also presented with the testimony of the cashier from the Chevron station across the street and the arresting and investigating police officers, Deputy Dore-Howard and Sergeant Carroll, as noted above, which corroborated the testimony offered by Ms. Glapion.

As defendant notes, the gun allegedly used in the robbery was not recovered or produced at trial. However, the production of a weapon, or other physical evidence, is not paramount, even in the case of an armed robbery prosecution, providing the State’s witnesses can otherwise establish, by their observations at the crime scene, all elements of the offense charged beyond a reasonable doubt, including the fact that an alleged armed robber did have and make use of a dangerous weapon. State v. Calvin, 00-1505 (La. App. 5 Cir. 2/28/01), 781 So.2d 827, 832, writ denied, 01-1112 (La.1/4/02), 805 So.2d 1182; State v. Cotton, 94 384, p. 2-8 (La. App. 5 Cir. 11/16/94), 646 So.2d 1144, 1146; Brown, supra, (citing State v. Brown, 497 So.2d 29 (La.App. 5 Cir.1986)). More importantly, in a conviction for first degree robbery, the State is only required to prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim’s belief was objectively reasonable under the circumstances. Thus, despite defendant’s contention to the contrary, the State was not required to prove that the person who robbed Ms. Glapion had a handgun in order to support a conviction for first degree robbery.

The jurors clearly found Ms. Glapion’s testimony more credible than the testimony of defendant. As discussed above, the credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact, and when faced with a conflict in testimony, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Jones, 08-20 at 7, 985 So.2d at 240. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

The jury was presented with all of the evidence, and the jury rejected defendant’s testimony. Ms. Glapion’s testimony shows that she believed the defendant was armed and that her belief was objectively reasonable under the circumstances. Given the above testimony, the evidence was sufficient to also uprove the greater offense of armed robbery, and the trier of fact was at liberty to return the responsive verdict of first degree robbery. Thomas, 2 So.3d at 1185; see also Brown, 591 So.2d at 798 (holding that a jury may return a legislatively provided responsive verdict, whether or not the evidence supports the verdict, as long as the evidence was sufficient to support a conviction of the charged offense absent a contemporaneous objection).

Based on the foregoing, we find that the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of the charged offense beyond a reasonable doubt. As such, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues in his appellate brief that the trial court erred in denying the motion to suppress his statement because he was coerced by the police into giving the statement, and therefore, his statement was not freely or voluntarily made. Specifically, defendant contends that Sergeant Carroll engaged in a pre-recorded conversation with defendant that ultimately forced defendant to make several incriminating comments, including an admission that he robbed the gas station and that he used a toy gun during the robbery. Defendant further asserts that he was placed in a holding cell that was “extremely crowded, noisy and depressing” and that he was “hungry and sleepy” when he was questioned. Defendant also contends that Sergeant Carroll “threatened him and coerced him to confess to robbing the store” and that “he could charge [defendant] with multiple crimes that could result in him not being able to see his sickly mother before she Indies.” Defendant alleges that Sergeant Carroll’s mannerisms were “intimidating and confrontational because the sergeant got in his face several times and told him that he was going away for life.” Thus, defendant alleges that, “out of fear” he agreed to say whatever Sergeant Carroll wanted him to say. As such, defendant argues that his confession should have been suppressed.

The State first responds that defendant failed to preserve this issue for appeal because he failed to move to suppress his statement based upon these abuse claims in his pre-trial motion to suppress or at the suppression hearings, which would have given the State adequate notice and an opportunity to present evidence at the hearing. Thus, because these arguments for suppression were available to defendant at the time of the motion hearing, defendant should be precluded from raising this issue on appeal.

Alternatively, the State contends that defendant’s confession was freely and voluntarily made after a knowing and intelligent waiver. Specifically, the State contends that defendant was informed of his Miranda rights, and that defendant acknowledged that he understood, and ultimately waived, his rights. Finally, the State contends that, because defendant did not present evidence to attack the State’s showing of the free and voluntary nature of the confession during the admissibility hearing, defendant’s trial testimony does not affect the admissibility of the confession, but merely affects the weight the confession will be given by the jury. As such, the State concludes the trial court properly denied defendant’s motion to suppress.

Sergeant Carroll and Francis Glapion testified at the suppression hearings on July 25, 2008 and February 20, 2009. Defendant did not testify or present any 11f,witnesses at .the suppression hearings. Sergeant Carroll.testified that he was the case officer on the Shell station robbery, and that, in connection with the investigation, he reviewed the video surveillance tape from the Shell station and ultimately developed defendant as a suspect. Sergeant Carroll testified that he met with members of defendant’s family on October 4, 2007, and that they identified defendant as the person depicted in the still photographs made from the Shell station video surveillance tape.

On the afternoon of October 4, 2007, Sergeant Carroll met with defendant at the Jefferson Parish Correctional Center and defendant agreed to accompany Sergeant Carroll to the Detective Bureau. Sergeant Carroll testified that he “Miran-dized” defendant via the standard Jefferson Parish Sheriffs Office form, and that defendant was permitted to read along while Sergeant Carroll advised him of his rights. Sergeant Carroll testified that defendant appeared cognizant of what was transpiring and was not drugged or intoxicated. Sergeant Carroll further testified that he did not use any force, coercion or intimidation, or make any promises to defendant in exchange for his statement, and that defendant did not ask to speak with a lawyer or to terminate the interview. Defendant acknowledged that he understood his rights and signed the form agreeing to waive those rights. Sergeant Carroll then interviewed defendant and defendant agreed to give a recorded statement. Sergeant Carroll testified that when he presented the still photographs from the Shell station surveillance video, defendant admitted that he was the person depicted in the photographs. Sergeant Carroll reiterated that he did not use any force, coercion or intimidation in obtaining this confession.

During the recorded statement, defendant first acknowledged that he had been advised of his rights and then made several inculpatory statements. | ^Defendant admitted that he arrived at the Shell station during the early morning hours of September 26, 2007, after he “caught a ride with a guy” driving a green car. Defendant admitted driving through the Chevron parking lot, where he observed a young lady “sweeping around.” Defendant further admitted that when he got to the Shell station, he “went into the store, they had a black lady behind the counter, and I, she didn’t really, I don’t guess she really seen me, I said it was a gun, it wasn’t real.... ” Defendant indicated that he was not carrying “a real gun” and that he told the cashier that he was not going to hurt her. Defendant further admitted that he took approximately sixty-five to seventy dollars from the cashier.

Finally, defendant admitted that he was the person depicted in the still photographs made from the Shell station surveillance video.

At the suppression hearings, both Sergeant Carroll and Ms. Glapion testified that Sergeant Carroll showed Ms. Glapion a photographic lineup in connection with the investigation and that Ms. Glapion positively identified defendant as the perpetrator of the robbery. Both witnesses also testified that Sergeant Carroll did not use any force, coercion or intimidation in order to obtain the identification.

Defendant’s Motion to Suppress sought to suppress the statement on the grounds that it was “inadmissible as being made under the influence of threats, duress, fear and intimidation and promises or reward or other inducements and/or without being advised of constitutional rights.” The trial court denied defendant’s motions to suppress, holding that the statement was not unconstitutionally obtained and were therefore admissible. Defendant objected to the court’s ruling. The State sought to introduce the statement at trial and, when asked if defendant had any objection, defendant responded “[j]ust subject to previous objections in the motions, none.” The statement was then admitted into evidence and presented to the jury.

j1sA 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 LSA-C.Cr.P. art. 703(E); State v. Smith, 94-120, p. 4 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455). 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. Jackson, 04-1388 at 5, 904 So.2d at 911 (citing LSA-C.Cr.P. art. 703(D)); see also State v. Favors, 09-1034, p. 9 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, 258 (citing LSA-C.Cr.P. art. 703(D)); State v. Rogers, 09-13 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382. On appeal, the defendant is limited to the grounds he articulated at trial and a new basis for the claim, even if it would be meritorious, cannot be raised for the first time on appeal. Jackson, 04-1388 at 5, 904 So.2d at 911.

In Jackson, though the defendant challenged the voluntariness of his confession, neither his written motion, nor the evidence presented at the motion hearing, alleged that the statement was involuntary because of his young age or because he was sleep deprived at the time of his statement (as asserted on appeal). Jackson, 04-1388 at 5, 904 So.2d at 911. This Court held that these new bases for suppression of the defendant’s statement, which were raised for the first time on appeal, were not properly before the court. Id. In this case, defendant failed to present any evidence or argument at the motion to suppress hearing regarding the specific grounds for suppression that he now argues on appeal, particularly the “abuse” conditions alleged in his appellate brief. Accordingly, these grounds are not properly before this court.

119The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Burns, 04-175, p. 5 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075. A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. Favors, 09-1034 at 9, 43 So.3d at 259 (citing State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Rogers, supra); State v. Nicholas, 06-903, p. 6 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 686. In determining whether the trial court’s ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing but also may consider pertinent evidence presented at trial. Favors, 09-1034 at 9, 43 So.3d at 259.

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. State v. Loeb, 09-341 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 924-25 (citing 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). The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Loeb, 09-341 at 11-12, 34 So.3d at 925.

Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. 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. In the present case, defendant was advised of his Miranda rights, including the right to remain silent. Defendant signed waiver of rights forms prior to giving a recorded statement. Defendant indicated that he understood the rights that had been read to him, was willing to answer questions without a lawyer, and waived his right to remain silent. Defendant further indicated that he had not been threatened or induced to waive his rights.

The record shows that defendant made a knowing and intelligent waiver of his right to remain silent. The waiver was voluntary because the detective testified that defendant was not coerced or threatened into making the statement, and because the defendant expressly waived his right to remain silent. Even though defendant argues that the statements should have been suppressed because he was coerced by the police into giving the statement and, as such, his statement was not freely or voluntarily made, the State’s evidence shows that defendant was read his rights and that he indicated that he understood those rights. Because defendant did not invoke his right to remain silent, and because he subsequently made a valid waiver, the trial court did not abuse its discretion in denying defendant’s motion to suppress. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals one error patent. In this case, at the multiple offender hearing, the trial judge did not advise defendant of his right to a formal hearing at which the state must prove its case or of his constitutional right to remain silent. The trial judge’s failure to sufficiently advise the defendant of his 12i statutory multiple offender rights is an error patent. State v. Babineaux, 08-705, p. 10 (La.App. 5 Cir. 1/13/09), 8 So.3d 621, 627.

The record discloses that defendant’s habitual offender status was established by stipulation without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney.

La. R.S. 15:529.1(D)(1)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the state must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing rather than by admission of the defendant. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney, there is reversible error. State v. Bell, 08-217 (La.App. 5 Cir. 5/28/08), 848 So.2d 87, 88 (citations omitted); State v. Delaney, 42,990, p. 18 (La.App. 2 Cir. 2/13/08), 975 So.2d 789, 799.

At trial, the state introduced evidence of the predicate conviction during defendant’s testimony. Defendant admitted that he had been convicted of attempted possession of a firearm by a convicted felon — the predicate offense. However, there is no colloquy in the record indicating that defendant was advised of his right to remain silent and that he waived that right by testifying. Since there is nothing in the record indicating that defendant was advised of his right to remain silent before admitting that he was convicted of the offense, the trial judge’s failure | g2to advise defendant of his right to remain silent before accepting the stipulation at the habitual offender hearing was not harmless error. As such, the habitual offender finding and enhanced sentence are hereby vacated. The matter is remanded to the trial court for a new habitual offender hearing and further proceedings consistent with this opinion.

CONCLUSION

For the reasons expressed above, defendant’s conviction is affirmed. The trial court’s habitual offender finding and enhanced sentence are vacated, and the matter is remanded for further proceedings consistent with this opinion.

CONVICTION AFFIRMED; MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

      . The bill of information was amended on May 12, 2009 to remove any reference to LSA-R.S. 14:64.3.

      . The date of the armed robbery noted in the transcript of Deputy Dormoy's testimony is September 26, 2008. However, the bill of information indicates that the armed robbery of the Shell station occurred on September 26, 2007.

      . The next day, the nightshift officers who responded to the scene reported to Sergeant John Carroll, a shift supervisor in the Armed Robbery Division of the Jefferson Parish Sheriff’s Office, and provided him with a copy of the surveillance video.

      . At the July 25, 2008 suppression hearing, Sergeant Carroll testified that he met with members of defendant’s family and asked them to view the still photographs made from the surveillance video. When Sergeant Carroll asked defendant's sister and niece if they recognized the gentleman in the photographs, they responded affirmatively. Sergeant Carroll testified that defendant’s niece and sister signed and dated the back of the photograph indicating their identification. Finally, Sergeant Carroll testified that he did not use any force, coercion, or intimidation, or make any promises, in order to obtain the identifications.

      . It is noted that on March 26, 2010, defendant filed a Supplemental Brief asserting various pro se assignments of error. However, on August 27, 2010, defendant filed a Motion to Withdraw Supplemental Brief, requesting that this Court "reach the merits in counsel filed Brief only.” Defendant’s Motion to Withdraw Supplemental Brief was granted on August 31, 2010.

      . In Cotton, the prosecution did not introduce a weapon at trial. Cotton, 94-384 at 3, 646 So.2d at 1146. The victim, who was the only eyewitness to the crime, testified that the defendant approached him and pressed a hard, sharp object to his side. The victim, thinking the defendant had a knife, complied, and the defendant robbed him. The defendant denied the use of a weapon. Id. Finding that the prosecution submitted sufficient evidence to support the armed robbery conviction, this Court held that when a defendant creates an atmosphere of intimidation prompting the victim to reasonably react with fear for his life, an armed robbery conviction is justified. Id.

      . In Brown, the defendant contended that the evidence was insufficient because the gun was not produced at trial. Brown, 591 So.2d at 793. The victim, an undercover officer working a drug trafficking investigation, testified that the defendant produced a gun and ór-dered the officer to return the rocks of cocaine he had offered to sell to the officer. Id. At trial, the defendant denied his involvement in the robbery. Id. Reviewing the officer’s testimony in the light most favorable to the prosecution, this Court held that a rational trier of fact could have found beyond a reasonable doubt that the defendant, while armed with a handgun, took drugs from the officer by threatening him with the gun. Id. at 794.

      .It is noted that at the sentencing hearing on May 22, 2009, the trial court advised defendant as follows: "Mr. Cambrice, a jury has sentenced you to — or has convicted you Guilty of First Degree Robbery. I think you got a break. I think if I would have been the one making the call, it probably would have been Armed Robbery. But the jury said First Degree Robbery. So I think you did get a break.”

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      . Defendant was also charged with simple robbery in Case No. 07-7144. Though defendant alleges in his brief that Officer Corey Newby and Mr. Ronald Gray testified at the suppression hearing, it is noted that Officer Newby and Mr. Gray testified concerning the simple robbery matter (Case No. 07-7144), not the armed robbery matter (Case No. 07-7143) and, as such, their testimony is not relevant to this appeal.