author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 10-KA-742.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, LA, for Appellee, State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Appellant, Nathan Pettus.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

^Defendant, Nathan Pettus, appeals his conviction and sentence. For the following reasons, we vacate the sentence and remand the matter as follows.

On September 17, 2008, Nathan Pettus was charged by bill of information with simple robbery, in violation of La. R.S. 14:65. On December 2 and 3, 2009, a six-person jury tried the matter and found defendant guilty as charged.

On December 15, 2009, defendant made oral motions for new trial and post verdict judgment of acquittal. Both of the motions were argued and the trial judge denied defendant’s motion for new trial that day.

On December 16, 2009, the trial judge sentenced defendant to imprisonment at hard labor for seven years to run consecutively with any other sentences currently being served. On that same date, defendant orally noticed his intent to file an appeal, which is now before us.

In our error patent review pursuant to La.C.Cr.P. art. 920, we found the following error that requires remand. Because the matter must be remanded, we pretermit discussion of the underlying facts and defendant’s assignments of error.

RLa.C.Cr.P. art. 821 provides that a defendant may move for a post verdict judgment of acquittal following the verdict, and that such motion must be made and disposed of prior to sentencing. The trial court erred in failing to rule on the defendant’s timely motion for post verdict judgment of acquittal. Although neither the defendant nor the State raised the issue on appeal, it is noticeable on the face of the record and reviewable as a patent error. State v. Randolph, 409 So.2d 554 (La.1981), (per curiam)(on rehearing, 1982); State v. Christian, 05-635, pp. 3-4 (La.App. 5 Cir. 2/3/06), 924 So.2d 266, 267.

In State v. Randolph, supra, the Louisiana Supreme Court dealt with the trial court’s failure to rule on a defendant’s new trial motion by vacating his sentence and remanding the case to the trial court for a ruling. The high court reserved to the defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion.

In State v. Wilson, 96-251 (La.App. 5 Cir. 10/1/96), 683 So.2d 775, the defendant complained that the trial court had failed to rule on defense motions for post verdict judgment of acquittal and for new trial prior to sentencing. This Court addressed the merits of the defendant’s other claims, but vacated his sentences and remanded the case to the trial court for a hearing on the outstanding motions and for a subsequent re-sentencing. Wilson, 96-251 at pp. 6-7, 683 So.2d at 777.

Most recently, when faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has returned to Randolph and, without addressing the merits of defendant’s assignments of error, vacated the defendant’s sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings. See, State v. Pearson and Little, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646; State v. Robinson, 06-464 (La.App. 5 Cir. 12/12/06), 947 So.2d 783; State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, 301-302; State v. Davis, 01-1275, p. 4 (La.App. 5 Cir. 4/10/02), 817 So.2d 171.

In conformity with Randolph, Pearson, Robinson, Lewis, and Davis, we will vacate the defendant’s sentence and remand the case to the trial court for a ruling on defendant’s motion for post verdict judgment of acquittal, reserving to the defendant his right to appeal from his conviction and sentence in the event that the ruling is adverse to the defendant. For the foregoing reasons, we vacate Pettus’ sentence for simple robbery and remand the matter to the trial court to rule on the Motion for Post Verdict Judgment of Acquittal, and for re-sentencing. We hereby reserve defendant’s right to appeal his conviction and sentence, in the event that the ruling on defendant’s motion is adverse to him.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    John Patrick PAYTON v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2010-CA-1644.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Raymond B. Landry, Moliere Flanagan & Landry, L.L.C., Metairie, LA, Richard M. Martin, Jr., Law Office of Richard M. Martin, Jr., LLC, New Orleans, LA, for Plaintiff/Appellee.
    Charles V. Giordano, Tasha W. Hebert, Pamela B. Gautier, Hebbler & Giordano, LLC, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge, PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Following a bench trial, John Patrick Payton was awarded $202,101.00 for damages, penalties, expert fees, costs and interest he incurred as a result of an accident in which he was involved while riding his motorcycle insured by Progressive Security Insurance Company. For the following reasons, we amend the judgment, and affirm as amended.

FACTS AND PROCEDURAL HISTORY:

Mr. Payton filed suit against his uninsured/underinsured carrier, Progressive Security Insurance Company (hereinafter “Progressive”), seeking damages for personal injuries and property damages. According to the original petition for damages filed herein, on February 26, 2005, John Patrick Payton (hereinafter “Mr. Payton”) was riding his motorcycle on Marengo Street in New Orleans, proceeding towards St. Charles Avenue. Suddenly, and without warning, a brown vehicle traveling on Baronne Street, approached the intersection from Mr. Payton’s left. Despite the fact that the brown vehicle had a stop sign, it appeared to Mr. Payton that its driver was not going to stop. He reacted by applying his brakes and turning 1 ¡>his front wheel, causing his brakes to lock and throwing him from his motorcycle. According to Mr. Payton, the driver of the brown vehicle apologized for causing the accident, but nonetheless fled the scene. No mention was made of contact between Mr. Payton’s motorcycle and the brown vehicle.

After answering the suit, Progressive filed a motion for summary judgment arguing that the policy of insurance issued to Mr. Payton contained an exclusion precluding recovery for property damages incurred in any accident where there was no physical contact between the insured vehicle and the uninsured vehicle, unless the insured could provide proof of contact through the testimony of an independent and disinterested witness.

Additionally, Progressive argued that Louisiana law, specifically La.Rev.Stat. 22:1295(l)(d)(i) , provides that when damages are allegedly sustained in a “miss and run” accident, where there is no physical contact between vehicles, a plaintiff must produce an independent and disinterested witness who can establish that a “phantom” vehicle caused the accident.

Prior to a hearing on Progressive’s motion for summary judgment, Mr. Payton amended his petition to allege that there was contact between his motorcycle and the brown vehicle, but that his loss of consciousness from the impact precluded him from having actual knowledge of the collision. Rather, through subsequent expert inspection and evaluation, he was able to conclude that |,.¡there was indeed contact. Thus, the accident was not a “miss and run,” but, rather, a “hit and run.”

Progressive reurged its motion for summary judgment and supplemented its memorandum in support. It argued that the “expert” inspection and evaluation, which determined contact between Mr. Payton’s motorcycle and the brown vehicle, was insufficient. Progressive argued that the “expert” was not qualified to make those determinations based on his education and experience, and never physically examined the motorcycle in question. Rather, he looked at photographs of the motorcycle and testified that there was a dent on the left side of the gas tank.

Progressive concluded that the testimony offered to support the necessary contact between Mr. Payton’s motorcycle and the brown vehicle to afford coverage was insufficient to create a genuine issue of material fact to defeat summary judgment. Progressive argued that its investigator, who was far better qualified to inspect the motorcycle and determine the cause of the accident, and who had physically examined the motorcycle, found no evidence that Mr. Payton’s motorcycle was damaged as a result of contact with another vehicle.

Progressive’s motion for summary judgment was never heard. Instead, the parties requested that the matter be set for trial. A joint motion was filed requesting the trial court to bifurcate the issues of contact between Mr. Payton’s motorcycle and the brown vehicle, and all other issues including damages.

Following both phases of trial, the trial court rendered judgment finding that Mr. Payton proved by a preponderance of the evidence that there was contact between his motorcycle and the phantom vehicle; that the phantom vehicle was at fault for the accident; and, that Progressive failed to establish that Mr. Payton was comparatively at fault. The trial court awarded Mr. Payton general damages of |4$125,000; past lost wages of $40,000; past lost income of $12,000; medical expenses of $13,755; a penalty of $5,000 for Progressive’s bad faith failure to timely pay medical coverage; a penalty of $1,000 for Progressive’s bad faith failure to timely pay collision damage; and, expert fees in the amount of $5,346. Additionally, the trial court assessed all court costs to Progressive.

Mr. Payton moved for a limited new trial. He sought additional damages for loss of enjoyment of life and additional past lost wages. The trial court denied the motion after hearing.

Progressive timely appealed the judgment, and Mr. Payton answered the appeal, seeking the same additional damages he requested in his motion for new trial.

DISCUSSION:

A. Standard of Review

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under this manifest error standard, in order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Allerton v. Broussard, 10-2071, p. 3 (La.12/10/10), 50 So.3d 145, 146-47; Bonin v. Ferrellgas, 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Allerton, 10-2071, p. 3, 50 So.3d at 147; Stobart v. State, through Dept. of Transp. And Development, 617 So.2d 880, 882 (La.1993).

|fiB. Discussion

Progressive raises four assignments of error on appeal. First, it argues that the trial court erred in finding that the Progressive insurance policy afforded coverage for plaintiffs claims.

Progressive is correct in its assertion that to recover property damages under an uninsured motorist policy, a plaintiff involved in an accident with a phantom vehicle must either prove that there was contact between the insured vehicle and the phantom vehicle, or must produce an independent, disinterested witness to corroborate the plaintiffs allegations of a miss and run accident. See La.R.S. 22:1295(1)(d)(i); Rener v. State Farm Mut. Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/5/00), 759 So.2d 214, 217. Likewise, to recover for bodily injuries caused by an accident with a phantom, the plaintiff bears the burden of proving, through an independent and disinterested witness, that a phantom caused the accident. La.R.S. 22:1295(1)(f).

Specifically, the Progressive policy issued to Mr. Payton provides, in pertinent part:

PART III — UNINSURED/UNDERIN-SURED MOTORIST COVERAGE
INSURING AGREEMENT — UNINSURED/UNDERINSURED
MOTORIST BODILY INJURY COVERAGE
INSURING/AGREEMENT — UNINSURED/UNDERINSURED
MOTORIST PROPERTY DAMAGE COVERAGE
Subject to the Limits of Liability, if you pay the premium for
Uninsured/Underinsured Motorist Property Damage Coverage, we will pay for damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle due to property damage:
1. to a covered vehicle listed on the Declarations Page as a vehicle for which Uninsured/Underinsured Motorist Property Damage is provided;
2. caused by an accident, and;
3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.
_Ll*
EXCLUSIONS — READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER THIS PART III.
3. Coverage under this Part III is not provided for property damage:
a. If there is no physical contact between the uninsured motor vehicle and the covered vehicle, unless you or a relative can show through an independent and disinterested witness that the property damage was the result of the actions of a driver of another vehicle whose identity is unknown or who is uninsured or underinsured.

Progressive argues that Mr. Pay-ton was not able to produce an independent and disinterested witness; therefore, his claims for coverage should have been denied in accordance with the terms of the Progressive policy. However, Progressive is ignoring two important factors when making its argument: 1) Mr. Payton amended his petition to categorize the accident as a “hit and run,” rather than a “miss and run,” and, 2) he produced an expert who testified that the dynamics of the accident indicated contact between Mr. Payton’s motorcycle and another vehicle.

Although the trial court stated on the record that it found the expert testimony to be incomplete and less than helpful, it did find Mr. Payton’s testimony to be credible. The trial court also stated that the existence of glass on the scene that did not belong to Mr. Payton’s motorcycle led to the reasonable conclusion that the glass was from a broken light on the phantom vehicle.

These statements by the trial court and Progressive’s argument that its expert was better than the plaintiffs expert trigger an important rule of review. It is well settled that where the testimony of experts differ, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding of fact in this regard will not be overturned unless clearly wrong. In this case, the trial [ 7court indicated that it did not rely on the testimony of either expert, but rather relied on the testimony of plaintiff and the fact that there was glass in the street that did not belong to plaintiffs motorcycle. Nonetheless, the expert testimony is in the record, and in our mandated review of the record in its entirety, we find that plaintiffs expert, William Haight, rendered the most plausible opinion on how the accident occurred.

Mr. Haight testified that based on the information he had, Mr. Payton’s motorcycle had to have hit something in the roadway, and that “something” was more than likely another vehicle.

Additionally, we note the stipulated testimony of Nicholas Clancy contained in the record. Mr. Clancy testified that he was doing carpentry work in a home near the intersection of Marengo and Baronne streets on the day of the accident. At approximately 11 a.m., he heard a loud noise, which he described as sounding as if a moving vehicle struck a parked car or a car door that was slammed incredibly hard. Mr. Clancy noted that his truck was the only other vehicle anywhere near the intersection.

When Mr. Haight’s opinion testimony and Mr. Clancy’s testimony is combined with the trial court’s factual findings and determination of credibility, this Court cannot say that the trial court was manifestly erroneous in its finding that contact was made between Mr. Payton’s motorcycle and another vehicle.

Accordingly, we find no error in the trial court’s conclusion that the Progressive policy afforded coverage for the subject accident.

Progressive’s second assignment of error is that the trial court erred in awarding Mr. Payton damages for past lost rental income. Specifically, Mr. |8Payton alleged that he lost rental income of $12,000 as a result of the accident and his injuries.

Mr. Payton and his wife owned property through a limited liability company, PSA Development L.L.C. The property was being renovated into luxury apartments at the time of the accident, and was within two months of completion. Mr. Payton testified that he worked as a supervisor on the project, monitoring the work progress and procuring fixtures. Because of the accident, he was not able to supervise the work and the completion of the project was delayed by four months. The only evidence that the apartments would have been rented was Mr. Payton’s testimony that a realtor told him he had tenants lined up to rent on the original completion date.

The trial court awarded Mr. Payton $12,000 for lost profits as a result of the delay in renting the property. We find this to be error.

Our review of the record indicates that the only evidence of Mr. Payton’s loss is hearsay testimony offered by Mr. Pay-ton, that the units would have been rented on April 1, 2005. Mr. Payton has failed to carry his burden of proof, as the record before us contains insufficient evidence to prove that he lost income on the apartments.

Additionally, we agree with Progressive that Mr. Payton was not the proper party to seek loss of profits for the rental property as he and his wife had formed a limited liability company, which in fact, owned the property. Contrary to the statements in Mr. Payton’s brief that “he labored [at the property]” and that his ownership of the property was more than a passive investment, the law is clear that he cannot recover individually for lost profits. See Amador v. Reggie, 05-976 (La.App. 3 Cir. 3/1/06), 924 So.2d 415, 418; Hinchman v. Oubre, 445 So.2d 1313, 1317 (La.App. 5 Cir.1984).

Accordingly, we amend the judgment to delete the $12,000 awarded for loss of profits on the rental property.

The third assignment of error made by Progressive is that the trial court erred in awarding Mr. Payton bad faith penalties.

To recover penalties pursuant to Louisiana Revised Statutes 22:1892 and 22:1220, a plaintiff has the burden of proving bad faith. To do so, he must prove: 1) the insurer received a satisfactory proof of loss; 2) the insurer failed to pay the claim within the applicable statutory period; 3) the insurer’s failure to pay was arbitrary and capricious. Boudreaux v. State Farm Mutual Automobile Ins. Co., 04-1339, p. 4 (La.App. 4 Cir. 2/2/05), 896 So.2d 230, 233.

McDill v. Utica Mutual Ins. Co., 475 So.2d 1085, 1089 (La.1985), is the seminal case on defining what constitutes satisfactory proof in the context of an uninsured motorist coverage claim. The Court held that to establish that an insurer received a satisfactory proof of loss in such a claim “the insured must show that the insurer received sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he was at fault; (3) that such fault gave rise to the damages; and (4) establish the extent of those damages.”

Progressive contends and the record supports that a letter was sent to Mr. Payton on March 10, 2005. Enclosed with the letter was a medical authorization | inform, which Progressive requested Mr. Payton sign and return, with a list of his treating physicians. According to Progressive, Mr. Payton informed the adjuster that he had copies of his bills, but that he never provided them to Progressive. It was not until July of 2005, that a second adjuster received the bills and sent Mr. Payton a check for $4,656.40.

Mr. Payton’s attorney attempted to enter into the record a transcript of a recorded statement between Mr. Payton and the first Progressive adjuster, but the trial court only allowed it to be proffered because it was not listed on plaintiffs exhibit list.

Mr. Payton testified on cross-examination that he had copies of his bills and that he told Progressive that if it wanted them, he was willing to provide them. Mr. Pay-ton was specifically asked:

Mr. Giordano: Mr. Payton, do you have any proof or any evidence whatsoever at the trial of this matter that Progressive had in its possession any medical bills more than 30 days before they sent you this check of July 13th, 2005:
Mr. Payton: I offered to give them the bills much, much earlier. Now, if they didn’t want to get the bills at that time or chose to make it easier on them and not pay me at that time, as you can see in my email to them on May 4th of '05,1 sent an email to Mr. Montgomery saying: • ‘It’s been over two months since the accident and I still don’t have any word on the status of my claim. In the meantime, my bills associated with my injuries continue to mount and the motorcycle hasn’t been repaired. I’ve been patient and cooperative through the entire process, h,but I think enough time has elapsed for you to investigate this accident. Please let me know how you wish to proceed so I can take appropriate action if necessary.’ So we already had several conversations prior to that where they should have had all the bills and I was willing to provide them with the bills.
Mr. Giordano: But “should have” and “could have” is two totally different things when it comes to obtaining legal bills....
Mr. Payton: I was very willing to provide them^-
Mr. Giordano: But, Mr. Payton, as I understand your testimony, I think it’s clear, you didn’t provide them — you had them and you were willing to provide them but you hadn’t provided them to Progressive; is that correct? Mr. Pay-ton: I offered to provide them with bills.

This testimony indicates that Mr. Pay-ton had bills he could have sent to Progressive, but did not. The record is also unclear as to exactly when Progressive received the release, however, a letter from the second adjuster to Mr. Payton in July of 2005 states that he had finally received the bills from Ochsner and was enclosing a check. Thus, it can be inferred from the record that at some point between March 10, 2005 and July 13, 2005, Mr. Payton returned the release form and Progressive obtained copies of medical bills.

The trial court stated in reasons for making the penalty award that by March 10, 2005, Progressive had the information necessary to make the medical payments claim. The record does not support this finding.

A satisfactory proof of loss is a necessary predicate to a showing that the insurer was arbitrary and capricious. Boudreaux, 04-1339 at p. 4, 896 So.2d 230, 234, citing Reed v. State Farm Mutual Automobile Ins. Co., 03-0107, p. 13 (La.10/21/03), 857 So.2d 1012, 1021. The insurer’s receipt of satisfactory proof of loss is what triggers the running of the applicable statutory time limits. The Louisiana Supreme Court noted in Reed, supra, “[i]t logically follows from this burden [of establishing 11ga satisfactory proof of loss] that a plaintiff who possesses information that would suffice as satisfactory proof of loss, but does not relay that information to the insurer is not entitled to a finding that the insurer was arbitrary or capricious.” Reed, 03-0107 at p. 13, 857 So.2d at 1020-21. It also logically follows that when “there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits.” Reed, 03-0107 at p. 13, 857 So.2d at 1021.

Thus, after reviewing the record in its entirety, we find the trial court was manifestly erroneous in finding that Progressive was arbitrary and capricious in not paying Mr. Payton’s medical bills until July 13, 2005.

In its last assignment of error, Progressive argues that the trial court erred in awarding Mr. Payton penalties for not timely tendering payment for property damage.

Progressive sent Mr. Payton a check dated May 4, 2005, in the amount of $1,252.16 for collision damages to his motorcycle. In its brief, Progressive explains that it informed Mr. Payton his property damage claim would have to be investigated because of the policy exclusion for a miss and run without an independent witness.

It is unclear from the record exactly when Progressive became aware of the damage to Mr. Payton’s motorcycle, and had an opportunity to view and assess the damages. However, we do know that Progressive’s adjuster went to the Harley Davidson shop long before the May 4, 2005, date that the check for $1,252.16 was tendered. Accordingly, we cannot say that the trial court erred in awarding penalties for failure to timely tender property damage payments.

11RLastly, Mr. Payton answered this appeal seeking to increase his award for past lost wages. He argues that the trial court relied on the wrong information to arrive at its award of $40,000.

The trial court explained that it is difficult to calculate lost wages for a person who does not work for an hourly wage. The court was cognizant of the complicating factors of Hurricane Katrina and new contracts entered into by plaintiff after Katrina. The court also clearly understood that it was plaintiffs burden to prove the lost wages. Considering all the variables, the trial court arrived at the lost wage figure of $40,000.

After a thorough review of the record, we conclude that the trial court was not manifestly erroneous in its award. Accordingly, we deny the relief sought by Mr. Payton on this issue.

C. Conclusion:

According, for the reasons set forth above, we amend the judgment to delete the award for lost profits of $12,000, and the award of penalties for failure to timely pay medical benefits ($5,000). In all other respects, the judgment of the trial court is affirmed.

AFFIRMED, AS AMENDED

ARMSTRONG, C.J., concurs in the result.

      . La. R.S. 22:680, in effect at the time of this incident, was renumbered as La. R.S. 22:1295, by Acts. 2008, No. 415, § 1, effective January 1, 2009. The current numbering is used herein.

      . Acts 2008, No. 415, § 1, amended and reenacted Title 22 of the Louisiana Revised Statutes of 1950, the Louisiana Insurance Code, and directed the Louisiana State Law Institute to redesignate the provisions of Title 22. La.Rev.Stat. 22:1892 was formerly La.Rev. Stat. 22:658, and La.Rev.Stat. 22:1973 was formerly La.Rev.Stat. 22: 1220, at the time of this accident.

      . This Court has reviewed the proffer. One of the first things stated by the Progressive adjuster is that he sent Mr. Payton a release form that day (March 10, 2005), and “if you want to fill that out that give me [sic] I can call Ochsner and say hey Mr. Payton was in there and I need to get the bills....” Mr. Payton then asks if he will be reimbursed directly or if his health insurance carrier will be reimbursed. The adjuster replied that he would have to see the bills to see how they were paid, to which Mr. Payton replied, "Ok.” Later in the conversation, the adjuster states to Mr. Payton, "Med pay is no problem either. I got bills from Ochsner totaling $5,000. We are cutting a check for that as well.” Thus the statement is internally inconsistent.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Jerome JONES.
    No. 2010-KA-1572.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Jerome Jones.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

| Jerome Jones appeals his conviction and sentence for armed robbery, requesting a review of the record for errors patent only. Finding no errors that require correction by this Court, we affirm Mr. Jones’ conviction and sentence.

PROCEDURAL HISTORY

The State of Louisiana charged Jerome Jones on April 1, 2009, with one count of armed robbery. He pled not guilty to this charge at his arraignment two days later. On April 7, 2010, Mr. Jones waived his right to a jury and proceeded to a bench trial. After two days of testimony, the trial court judge found him guilty as charged. The trial court judge sentenced Mr. Jones on April 28 to serve ten years at hard labor. The trial court judge also granted Mr. Jones’ motion for appeal on that date.

FACTUAL BACKGROUND/TESTIMONY

Two men robbed Daniel Dominici at approximately 1:30 a.m. on January 20, 2009, as he was getting out of his car in the 400 block of Natchez Street. Mr. Dominici testified that he parked his car on the way to a casino, when two African-American males approached him from a nearby doorway to a closed [¿restaurant. One man pointed a gun at him and demanded his money, cell phone, and the keys to his car. Mr. Dominici complied with their demands and handed them his phone, his wallet containing approximately $320, his hooded shirt, and his keys. The men ordered him to lie down on the ground, and when he complied, they pushed him under the car. The men tried to start the car while he was under it, but it would not start. In order to get out from under the car, Mr. Dominici told them that he had another battery in the trunk. The robbers allowed him to get up, and he obtained the other battery and hooked it up, but the car still would not start. The men then walked away.

Mr. Dominici testified that he ran down Tchoupitoulas Street to Canal Street, where he saw a police car sitting at a red light. He told the police officer that he was robbed. As the police officer was driving Mr. Dominici back to the scene, he saw a white Kia Spectra being driven the wrong way down Tchoupitoulas, and the men who robbed him were inside. The Kia turned on Canal Street and fled. Mr. Dominici testified that he also spoke with Detective Sean McElrath, who responded to the robbery call. Mr. Dominici described the gunman as having dreadlocks with gold tips at the end. He could not remember what other description he gave to Det. McElrath.

Some days later, Mr. Dominici viewed a photographic lineup from which he chose the picture of Mr. Jones as the robber with the gun. He testified that the photographs of all six men in the lineup were covered with paper so that he could not see the men’s hair, and Det. McElrath instructed him to look' at the men’s features to see if he recognized anyone. Mr. Dominici testified that months later he viewed a second lineup, from which he chose a photograph of whom he thought was the second robber.

lsOn cross-examination, Mr. Dominici testified that when he made the identification in the second lineup, Det. McElrath told him that he had chosen the wrong man because that man was not the suspect whose fingerprints were matched to evidence seized from the scene. Mr. Domini-ci admitted that when he identified Mr. Jones from the first lineup, he told the detective that Mr. Jones’ lips in the photograph did not appear to be the same as he remembered from the robbery. He also noted that the scene was dark, and he could have been mistaken about the robber’s lips. He testified that the man did not have facial hair. He also testified that the lineup that he viewed did not show the men’s hairstyles. He testified that only one of the men, the one not holding the gun, actually got into his car, but both of them searched through his possessions inside the car. He testified that his car was not dusted for fingerprints.

Mr. Dominici testified that while he was with Det. McElrath, they learned that a white car had been stopped nearby containing four African-American males. The police officer took him to the scene, where he viewed the men and told the police officer that none of them robbed him. Mr. Dominici stated that he then looked across Rampart Street and saw that the Kia had been parked on the street.

Mr. Dominici identified Mr. Jones in court as the robber with the gun.

Det. McElrath testified that he investigated the armed robbery of Mr. Dominici. He recounted what he was told about the robbery and stated that he interviewed Mr. Dominici on the scene. He testified that crime lab officers seized a vodka bottle from the doorway from which the perpetrators came to rob Mr. Dominici. He stated that Mr. Dominici described the gunman as an African-American male with a brown to dark brown complexion, thin, young, 5'6" to 5'9", with dreadlocks with gold or brown tips.

|4Pet. McElrath testified that a similar robbery occurred in the area a week before, involving three perpetrators, and one of the perpetrators, Curtis Ray, was apprehended, while the other two robbers remained at large. He testified that a police officer involved in that robbery investigation gave him a list of Mr. Ray’s known associates. He testified that one of these associates, Diamond Jackson, had been arrested in the past with Mr. Jones. He pulled up booking photographs of these men and discovered that Mr. Jones had dreadlocks with gold tips, and his general description matched that of the gunman in the armed robbery of Mr. Dominici. Det. McElrath testified that he compiled a photo lineup consisting of Mr. Jones’ photograph and those of similar men, but none of the men also had dreadlocks with gold tips. He covered the men’s photographs with paper so that their hair was not visible, and he showed the covered lineup to Mr. Dominici on January 28. From that lineup, Mr. Dominici chose Mr. Jones’ photograph as that of the gunman in the robbery. He then obtained an arrest warrant for Mr. Jones, and other police officers later arrested Mr. Jones.

Det. McElrath testified that the fingerprints on the vodka bottle found at the scene matched those of Juan Parrilla. He compiled a second photographic lineup that included Mr. Parrilla’s photograph and showed it to Mr. Dominici, but he did not identify Mr. Parrilla as the second robber.

On cross-examination, Det. McElrath testified that when viewing the second lineup containing Mr. Parrilla’s photograph, Mr. Dominici chose another photograph and told him that the second robber had hair like the man in that photograph. He testified that the victim did not mention that the gunman had facial hair, but he admitted that all of Mr. Jones’ booking photographs from various arrests showed him with a slight beard. He identified a booking photograph from | r,September 2008, which showed Mr. Jones with dreadlocks with gold tips, and he testified that this was probably the photograph that he used in the lineup. He admitted that as far as he knew, Mr. Jones was an acquaintance of an acquaintance of Mr. Ray, the man apprehended in the unrelated armed robbery. He testified that Mr. Jones was stopped by the police in the past with Mr. Ray, but he was not arrested during that stop. He stated that Mr. Jones had been arrested with Mr. Jackson, who was Mr. Ray’s acquaintance, and at that arrest Mr. Jackson was found with heroin and a gun.

Officer Michael Hamilton testified that he arrested Mr. Jones on January 29, 2009, pursuant to the arrest warrant. He transported Mr. Jones to the Eighth District and turned him' over to a police officer there.

The defense called Eric Tyrell, a supervisor of the Legal Compliance Department for Sprint Nextel Telecommunications. He identified telephone records of a cell phone of Christina Postel, which included calls to a New Orleans number late on January 19 and early January 20, 2009. He stated that one call was made at 9:35 p.m. on January 19 and concluded on January 20 at 12:40 a.m. Another call was made at 12:40 a.m. and concluded at 1:48 a.m. on January 20. The defense introduced the phone records into evidence.

Ms. Postel testified that she is Mr. Jones’ girlfriend and lives in Texas. She stated that Mr. Jones moved back to New Orleans in July 2008, and she called him at least twice a day at his grandmother’s house in the New Orleans area. She identified the phone number that she called on the night of January 19-20 as the land line at Mr. Jones’ grandmother’s house. She testified that Mr. Jones lived with his grandmother and did not have a cell phone. She testified that on the evening of January 19, she called Mr. Jones and spoke with him for over four [ fihours, and she insisted that Mr. Jones was on the line the entire time, except for approximately a minute when he interrupted their conversation to discipline his dog. She insisted that when she called, she only spoke briefly with other members of Mr. Jones’ family. She testified that she remembered calling Mr. Jones on this date because Mr. Jones’ attorney contacted her soon after Mr. Jones’ arrest and asked her about the phone conversation.

Officer Karl Palmer, assigned to the crime lab, testified that he collected a vodka bottle from the scene and lifted three latent fingerprints from the bottle. He sent the prints to the property room.

Officer Joseph Pollard, a latent print examiner, testified that he received the latent fingerprints lifted from the bottle and compared them to Mr. Jones’ fingerprints. The latent prints did not match the prints taken from Mr. Jones. He testified that about a year later, he matched the latent prints to Mr. Parrilla. He testified that Mr. Parrilla had been arrested in September 2009, on an unrelated charge in Plaquemines Parish.

Gaynel Jones testified that she is Mr. Jones’ grandmother, and he lived with her in Gretna prior to his arrest. She identified her telephone number, which belonged to a landline in her house. She testified that handsets for the line did not work past her driveway. She denied that Mr. Jones owned a cell phone when he lived with her. She stated that Ms. Postel, whom she identified as Mr. Jones’ girlfriend, generally called the house two or three times a day. She testified that she remembered that Ms. Postel called the house on January 20 because she was watching the Inaugural Ball on the television, but she did not know how the telephone call lasted. She testified that she would have been sleeping when Ms. Postel called at 12:40 a.m., and she would have been sleeping at the time of the 17robbery in this case. She stated that Mr. Jones was at home that night; she maintained that he never left the house any weeknight after she returned home at 5:00 p.m.

Mr. Jones denied robbing Mr. Dominici, denied being on Natchez Street at the time of the robbery, and denied seeing Mr. Dominici before. He testified that at the time of the robbery, he was living with his grandmother. He stated that on that date, Ms. Postel called him, and they spoke for hours. He insisted that he had worn dreadlocks and a beard for over two years. He admitted that sometime in 2008, his cousin dyed the tips of his dreadlocks blonde, but he maintained that a friend dyed them back to black in November 2008. He stated that he had been unable to touch-up his hair while in jail, and the blonde tips had begun to show by the time of trial. He denied knowing Mr. Parrilla and denied riding in a white Kia. He testified that while he was in jail, he remembered he was on the phone with Ms. Postel around the time of the robbery, and he asked her to check her cell phone records to determine if they showed that they were talking on the phone at the time of the robbery. Ms. Postel then gave this information to his attorneys.

At the conclusion of the testimony, the trial court judge reviewed the evidence adduced at trial, noting that it had reviewed Ms. Postel’s cell phone records. The trial court judge found that the records indicated several “undetermined routed calls” of “less than 32 seconds, 33 seconds” during the pertinent time period, which the trial court judge found to “mean that there was an open line, that this was a planned alibi, so to speak, of a phone call to Mr. Jones that night.” The trial court judge also noted that, contrary to Ms. Jones’ and Ms. Postel’s testimony, the number of phone calls between the two numbers lessened | ^greatly just after the date of the robbery. The trial court judge then found Mr. Jones guilty of armed robbery.

ERRORS PATENT

By his sole assignment of error, Mr. Jones requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because she believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to Mr. Jones, and this Court informed him that he had the right to file a brief in his own behalf. He failed to do so. Thus, this Court’s review is limited to errors on the face of the record. La.C.Cr.P. art. 920.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. 573 So.2d at 531. Mr. Jones was properly charged by bill of information with armed robbery in violation of La. R.S. 14:64, and the bill of information was signed by an assistant district attorney. Mr. Jones was present and represented by counsel at arraignment, during trial, and at sentencing. The jury’s verdict is legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Jones was guilty of armed robbery, as found by the court.

19However, this Court’s review reveals that the trial court judge failed to specify that the sentence is to be served without benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:64. Thus, the sentence without prohibition of benefits is illegally lenient. However, as per La. R.S. 15:301.1 A and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the trial court’s failure to delineate them. Thus, there is no need for this court to correct the sentence. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal. Therefore, we affirm Mr. Jones’ conviction and sentence. We also grant appellate counsel’s motion to withdraw.

MOTION TO WITHDRAW GRANTED; AFFIRMED

      . On the same date, Mr. Jones pled guilty as charged to one count of possession of heroin and received a sentence of five years at hard labor, to be served concurrently with the sentence in this case.


text:
    STATE of Louisiana v. Lawrence WILLIAMS.
    No. 2010-KA-1197.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Lawrence Williams.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

|, Defendant Lawrence Williams was charged with four counts of armed robbery with a firearm. He was found guilty and sentenced to twenty-five years at hard labor on each of the four counts of armed robbery with a firearm without benefit of probation, parole, or suspension of sentence, with the sentences to run concurrently. Defendant timely appealed.

Defendant Williams maintains that the victims’ identifications of him were unreliable and should have, therefore been suppressed. He also contends that his conviction and sentence should be overturned because he was subject to suggestive identification. We find no abuse of the trial court’s discretion in denying the motion to suppress the identification. We further find that Defendant Williams was not subject to suggestive identification and affirm.

PROCEDURAL HISTORY AND FACTS

The State filed a bill of information, charging Lawrence Williams (“Defendant Williams”) with four counts of armed robbery with a firearm in violation of La. R.S. 14:64.3. At his arraignment, Defendant Williams entered a |2plea of not guilty. The trial court found probable cause, and after a hearing, the court denied Defendant Williams’ motion to suppress the identification. A twelve-member jury found Defendant Williams guilty of four counts of armed robbery with a firearm. He was sentenced to serve twenty-five years at hard labor on each of the four counts of armed robbery with a firearm without benefit of probation, parole, or suspension of sentence, with the sentences to run concurrently. Defendant Williams timely appealed.

Ms. Kimberly Tompkins testified that she was out with two friends, Brittany and Heather, to celebrate Heather’s birthday at a club on Willow Street known as the “Frat House.” Brittany drove the three women to the vicinity of the club and parked her car near Willow Street. Ms. Tompkins testified that once all three women exited Brittany’s car, they were held up by a man with a handgun, who demanded that they give him their money. Ms. Tompkins gave the man ten dollars ($10.00), and Brittany and Heather each gave him twenty dollars ($20.00). The man did not take any of the women’s purses, only their cash. Although Ms. Tompkins’ encounter with the man was “no longer than five minutes,” she got a good look at him because the area in which she was robbed was well-lit due to lighting from a nearby building. After he took their money, the man “disappeared behind a building,” and the women got into Brittany’s car and drove away to call 911. Ms. Tompkins testified that she had not been drinking prior to the robbery, nor had either Brittany or Heather.

Ms. Tompkins testified that she received a call from Detective Baldwin about the May 2008 incident. Det. Baldwin drove to Ms. Tompkins’ residence, where he met with Ms. Tompkins, Brittany, and Heather, and asked each woman ^individually (and separately) to identify the man who held them up from a photographic line-up of six to eight suspects.

When Ms. Tompkins entered the room, Det. Baldwin told her that there was a suspect and that the suspect was in the line-up. After Ms. Tompkins identified Defendant Williams as the robber, Det. Baldwin said “okay.” Ms. Tompkins testified that when she picked Williams out in the line-up, she made the “best pick that [she] thought he looked like.” Ms. Tompkins identified Defendant Williams as the perpetrator and signed and dated the back of the photograph. The date indicated next to her signature on the photograph was July 23, 2008.

At trial, Ms. Tompkins was shown a handgun. Ms. Tompkins testified that the handgun shown to her at trial was not the handgun used by Defendant Williams on the night of the incident. The handgun used by Defendant Williams was silver and larger than the all-black handgun shown to her at trial.

Ms. Tompkins testified that the robbery occurred at around 10:30 p.m. or 11:00 p.m. on the evening of the incident. Ms. Tompkins testified that after the women got out of Brittany’s car in the 1400 block of Dublin St., they were taking photographs of each other when they were robbed. Although Ms. Tompkins had a camera and a cell phone on her at the time of the robbery, neither was taken from her.

Ms. Heather Keller testified that on the night of the incident, she, Ms. Tompkins, and their friend Brittany rode together to the Frat House to celebrate her birthday. They parked their car by a dumpster on Dublin Street, a side street. The dumpster was situated near a warehouse where parked streetcars are stored. The women got out of the car and started taking pictures of each other when a man came out from behind the warehouse, pulled a gun on the women, and ordered the |4women to give him their money. The three women put their hands up. They each had money, a phone, and a camera on their person. Ms. Keller testified that Brittany initially told the man that the women did not have any money, but the man tapped the gun and said again “give me your money.” Ms. Keller and Brittany each gave the man twenty dollars ($20.00), and Ms. Tompkins gave him ten dollars ($10.00). The man demanded more money, but the women promised him that they had given him all they had. The man then walked away. All three women then got into Brittany’s car and drove to the front of the Frat House to call 911. When they arrived at the bar, all three were visibly upset, and therefore, one of the women working in the bar called the police.

Ms. Keller testified that, at the time of the robbery, the man pointed the gun at all three women, and that she was “[r]eally scared” and “really just kind of shocked.” Ms. Keller testified that the robbery took place directly under a street light, and that the entire surrounding area was well-lit; she was therefore able to get a good look at the robber. Ms. Keller testified that for about ninety-nine percent of the time the robbery was taking place, she was looking directly at the robber’s face. Ms. Keller testified that the gun used by the robber was silver with a black handle. A gun was presented to Ms. Keller at trial, and she testified that the gun presented to her at trial was not the gun used by the robber. The gun presented at trial was much smaller than the gun used by the robber. Also, the gun used by the robber was a shiny silver color, as opposed to the gun presented to Ms. Keller at trial.

On cross-examination, Ms. Keller testified that, at the time of the robbery, she had money, a cell phone, and a camera on her, but that Defendant Williams took only her money. Ms. Keller testified that she had never seen the robber prior |fito the incident. Ms. Keller testified that Det. Baldwin told her that a suspect was pictured in the six-picture photographic lineup he presented to her, and that after she identified Defendant Williams as the robber and signed and dated the photograph.

Ms. Brittany Nagim testified that on the night of the incident, she, Ms. Keller, and Ms. Tompkins went out to celebrate Ms. Keller’s birthday at the Frat House. Ms. Nagim drove the women to the vicinity of the bar and parked her car. The women exited the car and started taking pictures in the middle of the street when a man came from nowhere, held a gun to them, and demanded that they hand over their money to him. Ms. Nagim initially said that she did not have any money, but realized that she had money in her hand as she said it. The man took about fifty dollars ($50.00) total from the women. The man demanded more money, but the women gave him all they had. After he took their money, the man disappeared, and the women got back into Ms. Nagim’s car and drove to the Frat House to call the police. Ms. Nagim remembered the gun the man held, and testified that it was bright silver, with a black handle.

On cross-examination, Ms. Nagim testified that after she gave Defendant Williams her money, she tried to get near her car so that he would not take her car. In doing so, she took “itty bitty steps and walked completely around him,” and was therefore able to get the “full dimension of his face.” The gun Defendant Williams held was shiny silver with a black handle, which was “very different” from the gun shown to her at trial.

Ms. Nagim testified that when she met with the detective for the photographic line-up, she was told by the detective that there was a suspect, and she should therefore look at the line-up and tell him whether one of the six guys in 16the line-up was the guy who robbed her and her friends. She looked at the line-up, pointed to Defendant Williams, and said “definitely; this is him.”

Mr. Timothy Moore testified that on the evening of the incident, at around 11:30 p.m., he went out to a bar, the Frat House, located near the streetcar den. Mr. Moore parked his car on the street next to the bar, and as he was getting out of the car, saw a man crossing the street behind him. As he went to close his car door, the man came over to him, pulled a gun on him, and said “give me what you got.” Mr. Moore testified that the handgun used was a silver handgun. Mr. Moore handed the man his wallet, which contained about three-hundred and fifty dollars ($350.00), and told the man that was all he had. Throughout the entire encounter, Mr. Moore stared right at the robber’s face, so much so that at one point, the robber said to him “Stop f--g looking at me.” After the man took his money, he ordered Mr. Moore to get back in his car and “get outta [there].” Mr. Moore got back into his ear and called the police.

Det. Baldwin contacted Mr. Moore and told him that he had a photographic lineup with a possible suspect pictured in the line-up. Mr. Moore met Det. Baldwin at police headquarters and was presented with the line-up. Mr. Moore identified Defendant Williams as the robber “right away.” Mr. Moore testified that he got a “very good” view of Williams on the night of the robbery, and that he was “[one] hundred percent” sure of his identification linking Defendant Williams to the robbery. Mr. Moore testified that the gun presented to him at trial was not the gun used by Defendant Williams during the robbery. The gun used in the robbery was larger than the gun presented to him at trial, and was also silver.

On cross-examination, Mr. Moore testified that he did not see the direction where Defendant Williams fled after the robbery because he was crouched down in 17his car. Mr. Moore’s initial description of the robber was that he was “about 35 or 40” and “was wearing [a] red shirt, blue jeans and ... a hat.”

Detective Jerry Baldwin, a New Orleans Police Department detective in the First District, testified that he became involved in the investigation of the robberies when he received the officer’s incident reports from his supervisor. When he first became involved in the investigation, he had a description of the perpetrator as being “5'9 to 5'10, 160 pounds, black male, dark complexion, with salt-and-pepper hair, especially on the sides.” Det. Baldwin testified that a suspect developed through an unrelated investigation, involving unrelated officers, where the subject being arrested matched the physical description provided of the perpetrator: “black male, late 30’s, early 40’s, salt-and-pepper hair.” During his arrest, a silver and black handgun was found on the suspect’s person.

Once Det. Baldwin got a description of the subject and all of the information, he put in a six-pack line-up. Det. Baldwin decided to put Defendant Williams in a line-up at this point because he fit the description of the perpetrator described in the four previous armed robberies, and he was found carrying a silver and black handgun.

Det. Baldwin first showed the line-up to Ms. Tompkins, Ms. Keller, and Ms. Nagim at Ms. Tompkins’ home. He showed each victim the line-up separately. All three victims were able to make a consistent identification. Because Defendant Williams had a band-aid on the right side of his eye when his line-up photograph was taken, Det. Baldwin placed a black dot on each of the candidates in the photo, so that Defendant Williams’ picture would not “stick out like a sore thumb.” Regarding the line-up, Defendant Williams’ picture was not in the same spot on each line-up so that the victims presented with the lineup could not agree to select |s“the first guy” or the like as the perpetrator. Det. Baldwin also testified that the gun found on Defendant Williams at the time of his arrest was placed in the evidence room, but was never able to be retrieved from the evidence room.

On cross-examination, Det. Baldwin testified that he spoke to each victim over the phone before he presented them with a line-up in an effort to set up a time for the identification, and to go over their description of the perpetrator with them. Det. Baldwin testified that he was the only police officer at Ms. Tompkins’ home presenting Ms. Tompkins, Ms. Keller, and Ms. Nagim with the line-up. Det. Baldwin testified that each woman made her line-up identification separately, and that after each woman made her identification of the suspect, he indicated to her that she had picked the correct suspect. Det. Baldwin testified that after Mr. Moore made his identification of the suspect, he indicated to Mr. Moore that he had picked the correct suspect.

ERRORS PATENT

The record reveals no patent errors.

MOTION TO SUPPRESS THE IDENTIFICATION

Defendant Williams contends that the victims’ identifications of him were unreliable and should have therefore been suppressed. The jury found him guilty of four counts of armed robbery with a firearm. Defendant Williams argues that the identification procedures were unduly suggestive and resulted in the substantial likelihood of misidentification. Specifically, Defendant Williams argues that: (1) the photographic line-up focused on one single distinguishing feature of the robber |fl(salt- and-pepper hair), and not on other features as described by the victims, such as age, height, or weight; (2) Det. Baldwin told Ms. Tompkins and Ms. Keller to select the photograph of the person who most closely resembled the man who robbed them, even if they had to reach their conclusion by process of elimination; and (3) Det. Baldwin told the victims that the photographic line-ups contained a photograph of a possible suspect.

The law pertaining to the suppression of out-of-court identifications is well-settled:

La.Code of Criminal Procedure art. 703(D) provides that the defendant has the burden of proof on a motion to suppress an out of court statement. To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Moreover, a defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990).
The Supreme Court has held that even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99); 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517. If a suggestive identification procedure has been proved, a reviewing court must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of mis-identification at trial. State v. Martin, 595 So.2d 592, 595 (La.1992). The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty [ ^demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, Id. The corrupting effect of the suggestive identification itself must be weighed against these factors. Martin, 595 So.2d at 595.
In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Lewis, 2004-0227 (La.App. 4 Cir. 9/29/04); 885 So.2d 641, 652. A trial court’s determination on the admissibility of identification evidence is enti-tied to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01); 797 So.2d 764.

State v. Holmes, 2005-1248, pp. 6-7 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1161.

Defendant Williams bases his misidenti-fication argument on the fact that the photographic line-up focused on one single distinguishing feature of the robber (salt- and-pepper hair). The record does not contain copies of any photographic line-up used in this matter. Additionally, none of the witnesses were questioned by the defense about whether their assailant had salt-and-pepper hair. Regardless, all of the witnesses testified that they were able to identify the Defendant Williams immediately and concretely when presented with the photographic line-up.

Defendant Williams also argues that Det. Baldwin, by indicating to Ms. Tompkins and Ms. Keller to select the photograph of the person most closely resembling the man who robbed them, was unduly suggesting that their assailant was pictured in the line-up. Ms. Tompkins identified Defendant Williams from the line-up and signed and dated her selection. Ms. Tompkins testified that she made the “best pick that [she] thought he looked like.” Ms. Keller testified that she was able to eliminate the other pictures “very easily” and identify Defendant Williams as her assailant “within no time.”

|„Lastly, Defendant Williams argues that because Det. Baldwin told the victims that the photographic line-ups contained a photograph of a possible suspect, it was unduly suggestive. Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517. Under the totality of the circumstances, four separate witnesses independently identified Defendant Williams as their assailant, both quickly and conclusively. All four witnesses indicated that they were able to get a good look at Defendant Williams at the time of the robberies. Also, all four witnesses also identified and described a silver gun with a black handle that Defendant Williams was carrying at the time of the robberies, but that was not presented to them for identification at the time of trial.

Even assuming that the photographic line-up was unduly suggestive, looking at the Manson factors, there is no likelihood of misidentification. First, all four victims testified that they had ample time to view their assailant. Indeed, Ms. Tompkins, Ms. Keller, and Ms. Nagim each testified that the area in which they were robbed was well-lit and therefore, each was able to get a good look at their assailant. Mr. Moore testified that he stared at his assailant for so long, that his assailant finally ordered him to “Stop f--g looking at me.”

Secondly, as to the degree of attention, all of the victims were close enough to their assailant to be robbed at gunpoint. None of the victims had been drinking prior to being robbed. Ms. Keller testified that for the majority of the time the robbery was taking place, she was looking directly at her assailant’s face. Ms. Nag-im testified that, in an effort to protect her car, she was able to walk completely around her assailant and get the “full dimension of his face.” Mr. Moore testified that he got a “very good” view of his assailant on the night of his robbery.

[ 12Third, as to the accuracy of the description, all of the witnesses’ descriptions were consistent and unwavering. Indeed, Ms. Tompkins, Ms. Keller, and Ms. Nagim each described an identical incident. We also note that at trial, the defense did not ask Ms. Tompkins, Ms. Keller, or Ms. Nagim to describe what their assailant looked like at the time of the actual robbery. Mr. Moore testified that his assailant was “about 35 or 40” and “was wearing [a] red shirt, blue jeans, and ... a hat.” Additionally, none of the witnesses identified the gun presented to them at trial as the gun used by their assailant.

Fourth, as to the certainty of the description, all four witnesses identified Defendant Williams immediately from the photographic line-up presented to them. Ms. Keller testified that she was able to eliminate the other photographs in the photographic line-up “very easily,” and identify Williams as her assailant “within no time.” Ms. Nagim testified that when she was presented with the line-up she identified Defendant Williams’ picture and stated “definitely; this is him.” Mr. Moore testified that he identified Williams in the line-up “right away.”

The last Mamón factor is the length of time between the crime and the confrontation. Ms. Tompkins, Ms. Keller, and Ms. Nagim testified that on July 23, 2008, they were presented with a photographic lineup of potential suspects. They were robbed on May 16, 2008. Similarly, Mr. Moore testified that on July 2008, he was presented with a photographic line-up of potential suspects. He was robbed on May 18, 2008.

In State v. Sterling, 96-1390, p. 5 (La.App. 4 Cir. 11/13/96), 684 So.2d 74, 78, this Court held that a three-month lapse between the crime and the photographic lineup is not so long as to make the identification unreliable. See also, State v. Jones, 2010-1026, p. 2 (La.10/1/10), 48 So.3d 210, 211 (“Nor do we lisfind the two month delay between the lineups an unreasonable length of time that would increase the likelihood ofmisidentifieation.”).

Considering the foregoing, we find that weighing the identification against the Maman factors indicates that the identification process was reliable. We find no abuse of the trial court’s discretion in denying the motion to suppress the identification.

Defendant Williams contends pro se that the trial court’s conviction and sentence should be overturned because he was subject to suggestive identification. Defendant Williams argues that each victim stated that they only saw a black male with salt and pepper hair and a silver hand gun. Defendant Williams further argues that each victim testified that they did not see their assailant’s face.

Defendant Williams’ arguments lack merit. None of the victims was questioned as to whether his or her assailant had salt- and-pepper hair. Further, none of the victims testified that they did not see their assailant’s face. Indeed, all of the victims testified that they were able to get a good look at their assailant’s face. We find that Defendant Williams was not subject to suggestive identification. We therefore affirm Defendant Williams’ convictions and sentences.

DECREE

We find that the trial court did not abuse its discretion in denying the motion to suppress the identification. Defendant Williams was not subject to suggestive identification. Accordingly, Defendant Williams’ convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED

      . Additionally, on July 21, 2008, the State charged Lawrence Williams with one count of felony possession of a firearm in violation of La. R.S. 14:95.1. This count was later severed from the other (four) counts of armed robbery, which are the subject of the present appeal. After a twelve-member jury could not reach a verdict, the trial court declared a mistrial on this count.

      . The State also called Officer Stephanie Bris-coe as a witness. Off. Briscoe, whose role is to supervise the 911 operators and dispatchers, testified as to the 911 call received in relation to the subject incident.


author: EDWIN A. LOMBARD, Judge. MURRAY, J.,

text:
    CHOICE PROFESSIONAL OVERNIGHT COPY SERVICE, INC. v. David M. GALEAS, Jason Broussard, and Nathan Martin.
    No. 2011-CA-0034.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Stephen D. Marx, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, LLP, Metairie, LA, for Plaintiff/Appellant.
    Albert J. Derbes IV, Eric J. Derbes, Stacey G. Roland, The Derbes Law Firm, L.L.C., Metairie, LA, for Kevin Stevens.
    Leonard L. Levenson, Christian W. Helmke, Colleen Boyle Gannon, New Orleans, LA, for David M. Galeas.
    Christopher E. Moore, Christine M. White, Coats/Rose, New Orleans, LA, for Jason Broussard.
    Elton F. Duncan III, Kelley A. Sevin, Harry E. Morse, Duncan Courington & Rydberg, L.L.C., New Orleans, LA, for Nathan Martin.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| plaintiff, Choice Professional Overnight Copy Service, Inc., appeals to this Court the denial of a Request for Preliminary Injunction against defendants David M. Galeas, Nathan Martin, Kevin Stevens, and Jason Broussard. For the following reasons, we find no abuse of discretion in denying the request for preliminary injunction and affirm the judgment of the trial court.

Factual and Procedural History

Choice Professional Overnight Copy Service, Inc. (hereafter “Choice”) is a copy service and litigation support business. Defendants, David M. Galeas, Nathan Martin, Kevin Stevens, and Jason Brous-sard, were all employed by Choice. Mr. Galeas began his employment with Choice on July 8, 1996. Mr. Stevens began his employment at Choice on or about January 2, 2001. Mr. Martin started working at Choice in August 2001.

Mr. Stevens, Mr. Galeas, and Mr. Martin were employed as salesmen at Choice. They were paid an hourly wage as their base salary and received commission payments based upon their monthly gross sales. In addition, they |2received monthly profit payments based upon a formula representing a share of Choice’s monthly profits. On the fifth day of every month, each salesman received a paycheck in the amount of half of his hourly pay, and on the twentieth day of each month they would receive two payments, one being the remainder of his hourly wage and the second being his profit payment check.

In November 2002, Mr. Greg Cummings, the President and owner of Choice, advised Stevens, Galeas, and Martin that he wanted all salesmen to execute non-competition and non-solicitation agreements with Choice. On Friday, December 20, 2002, Jay Geiger, the Controller for Choice and executive in charge of human resources, presented the three salesmen with an “Agreement Not to Unfairly Compete With or Solicit Employees from Choice Professional Overnight Copy Service, Inc.” (hereafter “Agreement”). Geiger informed Stevens, Galeas, and Martin that they would not receive their monthly profit checks unless they signed this Agreement. The Agreement stated that its “purpose” was to confirm their agreement “not to: 1) compete unfairly with Choice; 2) use or reveal Choice’s trade secrets and proprietary information; or 3) solicit Choice’s employees.” The Agreement, in pertinent part, further stated:

Your obligations in this Agreement constitute mandatory conditions of your Choice employment. Consequently, you agree that:
(1) Clients that you have been servicing in your office within the last year of your employment (“the Clients”) and . potential clients (“the Potential Clients”) that you, or anyone in the office has had any contact within the last year of your employment are Choice’s property. Should you leave Choice for any reason, then for 1 year after your employment ends, whether you work in Louisiana, or any other state, you will not contact nor solicit lathese Clients and Potential Clients. You will also not assist anyone else, including your new employer or new co-employees, from contacting, soliciting or providing services for these Clients or Potential Clients.

The Agreement further stated that these “non-compete obligations” existed in the geographic locales set forth in an attached list. Attached to each copy of the Agreement signed by Stevens, Galeas, and Martin was a list of 53 Louisiana Parishes and 53 Louisiana municipalities labeled as “Exhibit A — Parishes and Municipalities in Louisiana in which Competition Prohibited.” The Agreement also stated that the salesmen — signees were prohibited from becoming, an owner, shareholder, or partner for any competing copy service during this time period. The Agreement also stated that “[pjrovided you abide by this Agreement, you have the right to work as an employee for any other copy service, upon leaving Choice.” Galeas, Stevens, and Martin each signed copies of the Agreement on or around December 20, 2002.

Mr. Broussard began working at Choice in June 2008. He alleges that he was only an hourly worker and not compensated on the basis of sales or company profits. When he was offered a salesman position in March 2010, he was required to sign a similar non-competition and non-solicitation agreement. The Agreement signed by Mr. Broussard was different from the December 2002 Agreements only in that his agreement did not even allow him to work for a competitor copy services company for two years.

On September 30, 2010, Broussard, Stevens, Galeas, and Martin resigned effective immediately from Choice. A week later, they began working at Alliance Overnight Document Service, L.L.C. (hereafter “Alliance”). Alliance is an overnight copy and litigation support business founded by Bryan K. Broussard, the |4former Vice-President of Choice, who also resigned on September 30, 2010. Alliance was registered with the Louisiana Secretary of State Corporate Database by Bryan K. Broussard on this same day.

On October 5, 2010, Choice filed a “Verified Petition for Damages and Injunctive Relief’ against defendants Galeas, Brous-sard, and Martin, and later added Stevens as an additional defendant in a supplemental and amending petition. A “Motion for Preliminary Injunction” was filed the next day. On October 12, 2010, the trial court issued a temporary restraining order against all four defendants, restraining them from “initiating contact or soliciting customers of Choice Copy or soliciting employees of Choice Copy.” In support of their request for a preliminary injunction, Choice attached to their memorandum in support an affidavit of Greg Cummings regarding the Agreements signed by the defendants and their leaving in unison on September 30, 2010. Choice also presented an affidavit of a private investigator stating that some of the defendants have been seen stopping by the offices of former Choice law firm clients and engaging in business with them. Mr. Cummings provided an additional affidavit stating that the defendants have been soliciting Choice customers to bring their work and projects to Alliance. Choice also provided an affidavit from a current Choice employee stating that the defendants and other employees were not coerced into signing the Agreement and that their profit payments were not withheld in exchange for signing the Agreement.

In opposition, all defendants also submitted affidavits, but stated that they have not solicited Choice customers and work at Alliance in solely administrative capacities. They further stated that they signed the Agreements under duress with the threat of not being paid their due profit checks five days before Christmas | ^(Stevens, Ga-leas, and Martin), or as a result of promises of further job promotion and training (Jason Broussard).

On October 22, 2010, a hearing was held as to Choice’s request for preliminary injunction. After lengthy argument and consideration of the issues concerning the Agreement, the trial court denied Choice’s request for preliminary injunction and immediately dissolved the temporary restraining order against defendants. A signed judgment was entered on October 29, 2010, and Choice timely appealed.

Assignments of Error

Appellant, Choice Copy, does not raise an assignment of error specifically as to the denial of their request for preliminary injunction, but solely argues that the trial court erred in finding that the non-compete and non-solicitation agreements at issue are invalid.

Standard of Review

In reviewing whether the trial court erred in granting or denying a preliminary injunction, the appellate court must be mindful that a trial court has great discretion to grant or deny the relief requested. FQCPRQ v. Brandon Investments, L.L.C., 2005-0793, p. 7 (La.App. 4 Cir. 3/29/06), 930 So.2d 107, 112. An appellate court reviewing the disposition of a motion for preliminary injunction looks for an abuse of that discretion. Id.

Law and Analysis

“An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” La.Code Civ. Proc. art. 3601(A). “During the pendency of an action for an injunction the court may issue a temporary restraining order, a | ^preliminary injunction, or both ...” La. Code Civ. Proc. art. 3601(C). “When a temporary restraining order is granted, the application for a preliminary injunction shall be assigned for hearing at the earliest possible time ...” La.Code Civ. Proc. art. 3606. “The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings and support affidavits, or may take proof as in ordinary cases.” La.Code Civ. Proc. art. 3609. “An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” La.Code Civ. Proc. art. 3612.

In order to prevail at a hearing for a preliminary injunction, the moving party must prove the existence of three elements: 1) that the injury, loss, or damage he will suffer if the injunction is not issued may be irreparable; 2) that he is entitled to the relief sought; and 3) that he will be likely to prevail on the merits of the case. Derbes v. City of New Orleans, 2005-1249, p. 15 (La.App. 4 Cir. 8/30/06), 941 So.2d 45, 53. However, plaintiffs filing suit under La.Rev.Stat. 23:921, Louisiana’s non-competition and restraint of business prohibition statute, need not prove irreparable injury to obtain injunctive relief. La.Rev. Stat. 23:921(H); Clear Channel Broadcasting, Inc. v. Brown, 2004-0133, p. 9 (La.App. 4 Cir. 3/30/05), 901 So.2d 553, 558.

With respect to the applicability of La.Rev.Stat. 23:921, the version of the statute that was in effect at the time that the employment agreement in question was executed shall be applied to determine whether the non-competition provisions contained therein are enforceable. Clear Channel, 2004-0138 at p. 6, 901 So.2d at 557. Non-solicitation agreements are separate from non-competition agreements, but the requirements of La.Rev.Stat. 23:921 are applicable to both. Vartech Systems, Inc. v. Hayden, 2005-2499, p. 14 (La.App. 1 Cir. 12/20/06), 951 So.2d 247, 260. Because we find no abuse of discretion of the trial court’s decision in denying preliminary injunctive relief, we affirm the trial court’s judgment denying Choice Copy’s request for preliminary injunction and dissolving the temporary restraining order.

Louisiana has had a strong public policy disfavoring non-competition agreements between employers and employees. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 4 (La.6/29/01), 808 So.2d 294, 298. Thus, Louisiana’s longstanding public policy has been to prohibit or severely restrict such agreements. Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716, 96-1727, p. 11 (La.7/1/97), 696 So.2d 1373, 1379. This public policy is expressed in La.Rev.Stat. 23:921(A)(1), which provides:

Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.

First, both parties agree that the anti-compete and anti-solicitation agreements at issue in this matter were executed on or around December 2002, and the parties agree that the Louisiana Supreme Court case interpreting the version of La. Rev.Stat. 23:921 in effect at that time was SWAT 24, supra. La.Rev.Stat. 23:921 contains exceptions to the general public policy disfavoring non-compete agreements. The exceptions to the general policy of 23:921(A)(1) are found in 23:921(C), which, at the time of SWAT 24, supra, and the Choice Agreements at issue here, provided in pertinent part:

C. A person who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a ^specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years.

Upon reviewing the affidavits and other evidence submitted by the parties, and upon our review of the transcript of the hearing on the request for preliminary injunction, we find no abuse of discretion in the trial court’s denial of preliminary injunction. First, the transcript of the hearing indicates that the trial judge read all of the arguments, and was not persuaded either way by the multiple affidavits submitted by the parties attesting to the circumstances surrounding the signing of these agreements. The trial court correctly pointed out that the only testimony in the matter of persons present at the hearing was the deposition testimony of Jay Geiger, the now-former Controller of Choice, whose deposition testimony of October 13, 2010, clearly stated that he was told by Mr. Cummings to withhold the profit payments of December 20, 2002 until the three salesmen signed the Agreements. The trial court had no choice but to rely on Mr. Geiger’s sworn testimony to conclude that at least some of the salesmen “were scheduled to receive a sales bonus and that would be a carrot kind of hung over their head, that’s what Mr. Geiger says.”

The trial court further concluded, and we agree, that even if the Agreements were not vitiated by duress, the evidence does not support plaintiffs contention that the agreements are solely non-solicitation agreements and not non-competition agreements. Not only is the Agreement entitled “Agreement Not to Unfairly Compete or Solicit Employees from Choice Professional Overnight Copy Service, Inc,” but the language of the agreement itself refers to a signee’s “non-compete |9obligations,” and the geographical limitations attached to the Agreement are referred to as “Parishes and Municipalities in Which Competition Prohibited.”

Next, we agree with the trial court’s decision to “apply very strict adherence” to the Choice Agreements. Louisiana’s strong public policy restricting non-competition agreements is based upon an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and, consequently, becoming a public burden. Clear Channel, 2004-0133 at p. 4, 901 So.2d at 556. Because non-competition and similar covenants are in derogation of the common right, they must be strictly construed against the party seeking enforcement. Id.; SWAT 24, 2000-1695 at p. 5, 808 So.2d at 298. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. Civ.Code art. 2056.

Finally, we find no error in the trial court’s ultimate reason for denying Choice Copy’s request for preliminary injunction: the lack of a geographic limitation as to non-solicitation likely makes the Choice Agreements signed by all defendants null and void. See H.B. Rentals v. Bledsoe, 2009-478, p. 4 (La.App. 3 Cir. 11/4/09), 24 So.3d 260, 262 (“While the agreement contains a very broad geographic designation, the non-solicitation clause contains none. Under the plain terms of § 921, it is null and void.”)

Conclusion

For the above reasons, we find no abuse of discretion in the trial court’s denial of Choice’s request for a preliminary injunction. Choice presented no evidence that it is entitled to relief, or that it would likely succeed at trial. Clear Channel, 2004-0133 at p. 9, 901 So.2d at 558. Plaintiff raised no arguments at the trial level or before this Court even addressing or discussing the specific elements 110of granting a preliminary injunction, which is the sole issue before this Court. By failing to provide a geographic limitation as to non-solicitation, the plaintiffs have not shown that they would likely prevail on the merits of their non-solicitation/non-competition Agreements.

Decree

Because the trial court did not commit an abuse of discretion in denying a preliminary injunction and dissolving the initial temporary restraining order, the judgment of the trial court is affirmed.

AFFIRMED

MURRAY, J., concurring with reasons.

MURRAY, J.,

concurring with reasons.

hThe issue in this case is whether the three non-solicitation agreements at issue are legally valid. If the agreements are invalid, then the trial court correctly denied the request for a preliminary injunction. The agreements contain both non-competition and non-solicitation provisions; thus, the agreements to be valid were required to contain separate lists of the restricted parishes and municipalities for non-competition and for non-solicitation purposes. Although the agreements contain geographical restrictions for competition, the agreements lack such restrictions for solicitation. Accordingly, the trial court correctly found the agreements invalid and denied the request for injunctive relief.