author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Max EVANS, Appellant.
    No. 48,489-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 2013.

      Carey J. Ellis, III, for Appellant.
    Jonathan M. Stewart, District Attorney, for Appellee.
    Tandy E. Causey, Kenneth P. Haines, Assistant District Attorneys.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

I, The defendant, Max Evans, was charged by bill of information with Driving While Intoxicated (“DWI”), third offense, a violation of LSA-R.S. 14:98(D). Following a jury trial, defendant was found guilty as charged and was sentenced to serve five years at hard labor, with three years suspended, and five years of supervised probation upon release from prison. We affirm the defendant’s conviction and the portion of the sentence which imposed a sentence of five years at hard labor, with three years suspended. We amend the defendant’s sentence to reflect that his term of probation is three years, and we affirm this sentence as amended.

FACTS

On December 31, 2010, at approximately 4:45 p.m., the defendant was driving south on Louisiana Highway 9, in a single-cab Chevrolet pickup truck. Louisiana State Trooper Brandon Salmon, who was traveling north on the same highway, passed the defendant and observed that he. was not wearing a seat b.elt. The officer executed a U-turn and conducted a traffic stop. Trooper Salmon exited his police vehicle and approached the defendant. The officer explained the traffic violation, asked for the defendant’s driver’s license, vehicle registration and proof of automobile insurance; he also asked where the defendant had been and his destination. Trooper Salmon stated he did not notice any impairment in the defendant’s driving prior to pulling him over for the seat belt violation.

According to Trooper Salmon, when he approached the defendant he observed that the defendant’s eyes appeared glassy and bloodshot; he also detected an odor of alcohol on the defendant’s breath. He walked with the 12defendant to the passenger side of the truck to retrieve the vehicle registration and insurance documents. When, the defendant opened the door of the vehicle, Trooper Salmon observed what appeared to be a spilled alcoholic beverage on the floorboard. By that time, the officer was closer to the defendant and detected a more noticeable smell of alcohol on the defendant’s breath. Trooper Salmon asked the defendant if he had consumed any alcoholic beverages that day; the defendant replied that he had drunk some Budweiser beer earlier that day. As the officer called headquarters for the defendant’s driving record, he observed the defendant stabilizing and steadying himself on the police vehicle. Trooper Salmon stated that although the defendant’s balance seemed normal, he slightly swayed at times.

Trooper Salmon decided to administer the field sobriety tests. During the horizontal gaze nystagmus test, the officer noted that the defendant’s eyes tracked equally, but not smoothly, and he observed a deviation in both of the defendant’s eyes. According to Officer Salmon, these clues indicated that the defendant was impaired. The officer observed that defendant also swayed slightly during these tests. Additionally, during the walk-and-turn test, Trooper Salmon observed that the defendant started too soon, forgot the instructions and moved at a much slower pace than what the trooper considered normal. During another test, in which the defendant had to stand on one leg, the officer observed that the defendant swayed and put his foot down. Trooper Salmon testified that these responses indicated that the ^defendant was impaired.

Trooper Salmon placed the defendant under arrest and transported him to the Homer police station. On arrival, he advised the defendant of his Miranda rights and his rights regarding the Intoxilyzer 5000 breathalyzer test. The' defendant consented to the test, which revealed that his blood-alcohol content was .140 grams; the legal limit is .08 grams.

During a booking interview, the defendant informed the officers that he was a non-insulin dependent diabetic and that he took medication for high blood pressure. He also stated that he had consumed four beers that morning.

During the trial, Kerry Johnson, an instructor and technician in blood-alcohol concentration testing, was accepted as an expert in the operation and maintenance of the Intoxilyzer 5000 machine. He testified with regard to the maintenance of the machine and described how the machine works to analyze the amount of alcohol in a person’s blood during the test.

Jared Mclver was accepted as an expert in field sobriety testing, blood-alcohol testing on the Intoxilyzer 5000 and the detection of intoxication. Mclver testified that he had reviewed the defendant’s arrest report and the footage from the dash camera; he opined that Trooper Salmon correctly conducted the field sobriety tests. Mclver also opined that the defendant was impaired. Mclver stated the camera footage showed that the defendant used his hand to prop himself up, that he used his arm to balance himself, and that he was swaying. Mclver concluded that the defendant’s 14breath test results exceeded the legal limit by “quite a bit.”

The defendant testified that he had awakened at approximately 9:80 a.m. on the day in question and began drinking shortly thereafter. At approximately 10:00 a.m., he went back to sleep until 3:30 or 4:00 p.m. He stated that he then got into his car and drove to a grocery store to meet a friend, Louise Jones. While there, he encountered his girlfriend, Dorothy Ann Tucker, in the parking lot. The defendant testified that after speaking to Ms. Tucker, he met Ms. Jones in the parking lot and gave her money to bake a cake for him. Thereafter, he returned home, exited his car and got into his truck to drive to Ms. Jones’ house to pick up some food.

The defendant also testified that following his 2008 conviction for DWI, he had installed an ignition interlock device in his car pursuant to the court’s order. He admitted that he had owned the truck since 2009 but had not installed such a device in that vehicle. The defendant testified that he decided to drive his truck, rather than his car, on the day in question because he was going to Ms. Jones’ house and she had bushes along her driveway that would scratch his car.

Additionally, the defendant testified that he takes medication for high blood pressure and lower back pain and Vistaril for anxiety. He stated the back pain affects his left leg but admitted that he did not inform Trooper Salmon of this prior to taking the field sobriety tests. The defendant also admitted that he drank “a couple” of beers that morning and that he had not eaten anything that day. He denied Trooper Salmon’s testimony that his breath smelled of alcohol, that his eyes were red and glassy, and that he had 15spilled an alcoholic beverage in his vehicle.

The defendant also attempted to explain his failure in the field sobriety tests. He testified that he asked the officer to repeat the test instructions because the road noise made it difficult to hear. He also stated that he put his foot down to switch legs in the one-leg test because of his lower back pain, which makes his leg less stable.

Dorothy Ann Tucker testified that she and the defendant had been in a romantic relationship since 2006. She' stated she had been a passenger in the defendant’s car and had seen him blow into the ignition interlock device to start the vehicle. Ms. Tucker also testified that on the day in question, she saw defendant in the store parking lot next to his car and she did not smell any alcohol on his breath. She further stated that she knew defendant drove his truck to go fishing and that he liked to drink Miller Lite beer.

Louise Jones testified that she sometimes visited the defendant’s house to play dominoes and she knew that he drank gin. She also testified that she met the defendant on the day in question to get money to bake a cake for him; she saw that he was driving his car. Ms. Jones stated she could not tell if he had been drinking unless she saw him drinking.

The parties entered into a stipulation with regard to the defendant’s two prior DWI convictions (April 2007 and April 2008); the state entered proof of those convictions into evidence. After trial, the jury found the defendant guilty of DWI, third offense. Subsequently, the trial court denied the defendant’s motion for post-verdict judgment of acquittal.

| fiDuring the sentencing hearing, the trial court reviewed the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. The court considered' the defendant’s three convictions for DWI and noted that the convictions were all “fairly close together.” The court also considered the defendant’s testimony that he had started drinking just after 9:00 a.m. on the day in question and found that he had a “substance abuse problem.” The court sentenced the defendant to serve five years in prison, with three years suspended, five years of supervised probation upon release, and credit for time served. The defendant appeals his conviction.

DISCUSSION

The defendant contends the trial court erred in denying his motion to suppress.He argues that the police officer impermis-sibly searched and inspected his person pursuant to a traffic stop for a seat belt violation.

The state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant. LSA-C.Cr.P. art. 703(D). The entire record is reviewable for determining the correctness of a ruling on a motion to suppress. State v. Pena, 43,321 (La. App.2d Cir 7/30/08), 988 So.2d 841; State v. Young, 39,546 . (La.App.2d Cir.3/2/05), 895 So.2d 753. A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. Pena, supra; State v. White, 39,681 (La.App.2d Cir.5/11/05), 903 So.2d 580.

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 7S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Pena, supra, citing United States v. Shabazz, 993 F.2d 431 (5th Cir.1993). The standard for evaluating a challenge-to a routine warrantless stop • for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Pena, supra; State v. Sims, 40,300 (La. App.2d Cir.10/26/05), 914 So.2d 594. The court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” U.S. v. Shabazz, 993 F.2d at 435, quoting Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. 1868.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. United States v. Sharpe, supra; State v. Pena, supra; State v. Sims, supra. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable. Whren v. United, States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053; State v. Triplet, 42,357 (La.App.2d Cir.8/15/07), 962 So.2d 506, writ denied, 2007-2030 (La.2/15/08), 976 So.2d 175.

A driver’s failure to wear a seat belt constitutes reasonable cause for |Ran investigatory traffic stop. State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746; State v. Gomez, 2006-417 (La.App. 5th Cir. 11/28/06), 947 So.2d 81. An officer making a traffic stop may order the driver (as well as passengers) out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); State v. Cure, 2011-2238 (La.7/2/12), 93 So.3d 1268, cert. denied, - U.S: -, 133 S.Ct. 549, 184 L.Ed.2d 357 (2012); State v. O’Neal, 44,-067 (La.App.2d Cir.4/18/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841.

LSA-R.S. 32:295.1 provides, in pertinent part:

A. (Í) Each driver of a passenger car, van, sports utility vehicle, or truck having á gross weight of ten thousand pounds or less, commonly referred to as a pickup truck, in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion. The provisions of this Section shall not apply to those cars, vans, sports utility vehicles, or pickups manufactured prior to January 1, 1981.
F. Probable cause for violation of this Section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Section. A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.

In the instant case, the defendant does not argue that the initial stop was invalid. Rather, he argues that the search of his person, i.e., his breath, was invalid because LSA-R.S. 32:295.1(F) states, in part, “A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.” According to the defendant, at the inception of the traffic stop, Trooper Salmon did not have any reason to suspect that he was impaired. Thus, the ^officer violated his rights by conducting the field sobriety tests.

In State v. Benoit, 2001-2712 (La.5/14/02), 817 So.2d 11, the defendant was stopped after he was observed driving without wearing a seat belt. The police officer instructed the defendant to exit the vehicle and walk toward the police vehicle. The officer observed that upon exiting the vehicle, the defendant was unsteady on his feet and that he used his truck for balance. During their conversation, the officer observed that the defendant’s speech was slurred and that his breath smelled of alcohol. The officer performed a field sobriety test, which the defendant failed. The defendant refused to submit to a breathalyzer test and was arrested for DWI. The trial court denied the defendant’s. motion to suppress; the court of appeal reversed. The Supreme Court granted the state’s writ application and reversed the court of appeal’s decision. In discussing LSA-R.S. 32:295.1(F), the Court stated:

[W]e must determine whether [the officer’s] actions subsequent to the stop were unlawful. Pertinent to this determination is whether [the officer’s] actions of ordering the defendant out of the car, then observing the defendant’s gait, his speech, and detecting the scent of his exhalations, constitutes a search or inspection. Under current Fourth Amendment jurisprudence, [the officer’s] conduct clearly does not constitute a search. (‘The term [search] implies some exploratory investigation, or an invasion and quest, a looking for or seeking out.’) Accordingly, the propriety under Rev. Stat. 32:295.1 of [the officer’s] order and subsequent observation of the defendant hinges upon the question of whether such behavior constitutes an inspection, and thus depends upon the ‘generally prevailing meaning1 of inspection.

Black’s Law Dictionary defines the word ‘inspection’ as:

|10To examine; scrutinize; investigate; look into; check over; or view for the purpose of ascertaining the quality, authenticity or conditions of an item, product, document, residence, business, etc. Word has broader meaning than just looking, and means to examine carefully or critically, investigate and test officially, especially a critical investigation or scrutiny.
[Considering [the officer’s] experience in law enforcement and track record for identifying and making DWI arrests, which is not contested, the facts herein present a valid reason for [the officer] to become suspicious and pursue an investigation of defendant’s intoxicated state. [The officer] saw the defendant struggle for balance as he exited his vehicle, and he slurred his speech, and smelled of alcohol. At this point, [the officer] had no need to investigate the seat belt violation further; rather, he had independent, reasonable suspicion that the defendant was intoxicated and thus was authorized to conduct field sobriety tests, breather analyzer tests, and similar indices of intoxication upon the defendant. The violation of La.Rev.Stat. 32:295.1 was therefore not the ‘sole’ reason for [the officer’s] administration of field sobriety tests and his request that the defendant submit to a breath analyzer test. Accordingly, [the officer’s] behavior did not conflict with the statute at issue.

State v. Benoit, supra, at 13-15 (internal citations omitted).

In the instant case, we have reviewed this record in its entirety. Our review concludes the following:

Trooper Salmon testified that he detected the odor of alcohol on the defendant’s breath as the defendant gave him his driver’s license. He also testified that the defendant’s eyes appeared bloodshot and “glassy.” He stated that he followed the defendant to the passenger side of his truck and observed what appeared to be an open container of alcohol spilled on the floorboard of the vehicle. By this time, Trooper Salmon was standing closer |1Tto the defendant and was able to detect a stronger odor of alcohol.

Additionally, Trooper Salmon unequivocally testified that he had a great deal of experience conducting traffic stops and making DWI arrests. He testified that he had been a Louisiana State Trooper for over five years; before becoming a state trooper, he had been a Bossier City police officer for nearly five years; prior to that, he was a member of the Homer Police Department for approximately one year. Trooper Salmon also stated that he had received training in conducting field sobriety tests and in administering Intoxilyzer tests. The officer testified that he made approximately two arrests per month for alcohol-related offenses, and during his five-year tenure with the Louisiana State Police Department, he had made more than 100 DWI arrests. Further, he testified that during his employment as a police officer and in his private life, he had been around intoxicated individuals on many occasions. Therefore, he was able to tell whether a person was under the influence of alcohol by observing their eyes, gait, speech and coordination.

We must note that the DVD of the traffic stop does not reveal any obvious signs that the defendant was impaired. At one point during the stop, the defendant put one hand on his truck and the other on the police car, seemingly to steady himself. However, the defendant was able to maintain his balance without swaying or falling over. Nevertheless, there is no evidence in the record to contradict the officer’s testimony with regard to what he observed and smelled.

We find that the smell of alcohol on the defendant’s breath combined |12with his bloodshot eyes constituted reasonable suspicion that the defendant was intoxicated. Therefore, based on this suspicion, Trooper Salmon was authorized to conduct the field sobriety tests, which the defendant failed. The officer’s suspicion that the defendant was impaired was also confirmed by the results of the Intoxilyzer test, which showed his blood-alcohol content was .140 grams.

The defendant also contends the trial court erred in denying his motion to suppress statements he made to Trooper Salmon. He argues that the officer violated his rights by asking him if he had been drinking without advising him of his Miranda rights.

A traffic stop does not constitute a custodial interrogation; therefore, a defendant’s statements to the police officer during the traffic stop do not trigger the Miranda requirement. State v. Lara, 46,-639 (La.App.2d Cir.11/2/11), 78 So.3d 159; State v. Dufrene, 2012-716 (La.App.5th Cir.4/10/13), 115 So.3d 22. Answers to non-custodial questioning at the scene “are admissible without Miranda warnings.” State v. Shirley, 2008-2106 (La.5/5/09), 10 So.3d 224.

A Miranda warning is not required for general questioning during a fact-finding process until the investigation ceases to be exploratory in nature, or the person has been taken into custody or otherwise significantly deprived of his freedom. State v. Cooper, 45,568 (La.App.2d Cir.12/8/10), 55 So.3d 873. Our state supreme court “has consistently held that Miranda warnings are not required when the law officer is making a general, 113on-the-scene investigation to determine whether there has been the commission of a crime, and, if so, by whom.” State v. Thornton, 2012-0095 (La.3/30/12), 83 So.3d 1024.

The defendant herein was stopped for a traffic violation. He was not in custody when Trooper Salmon, suspicious that the defendant was impaired, asked whether defendant had been drinking. There was no custodial interrogation. Rather, the officer made an inquiry as he investigated his suspicion that the defendant was driving while intoxicated. The Miranda requirement was not triggered at that point and the defendant’s admission — that he had been drinking beer earlier that day — was admissible. Accordingly, the trial court did not err in denying the defendant’s motion to suppress the statement.

ERRORS PATENT

In accordance with LSA-C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals three errors patent: (1) the failure to impose the mandatory $2,000 fine; (2) the failure to order that 45 days of the sentence be served without benefit of probation, parole, or suspension of sentence; and (3) the imposition of five years’ supervised probation.

LSA-R.S. 14:98(D)(1)(a), as written in 2010, provided:

On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Forty-five days of the sentence of imprisonment shall be 114imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

The trial court’s failure to state that 45 days of the sentence shall be served without benefits will be corrected automatically by operation of LSA-R.S. 15:301.1. See State v. Braziel, 42,668 (La.App.2d Cir.10/24/07), 968 So.2d 853; State v. Klasek, 37,114 (La.App.2d Cir.4/11/03), 843 So.2d 646, unit denied, 2003-1359 (La.12/12/03), 860 So.2d 1149. Moreover, although we note that the trial court imposed an illegally lenient sentence by failing to assess the mandatory fine, we decline to impose the fine. The state has not objected to the error and defendant is not prejudiced in any way by the failure to impose the mandatory fine. Thus, considering the defendant’s apparent indigent status, we decline to remand the case for correction of the sentence to include such a fine. See State v. Jones, 42,531 (La.App.2d Cir.11/7/07), 968 So.2d 1247.

Additionally, the trial court ordered the defendant to serve five years of supervised probation upon his release from prison. However, the minutes reflect a sentence of three years of supervised probation upon the defendant’s release from prison. Pursuant to LSA-R.S. 14:98(D)(1)(a), the correct period of supervised probation is three years, the “period of time | ^equal to the remainder of the sentence of imprisonment,” as correctly reflected in the minutes.

An appellate court is authorized to correct an illegal sentence pursuant to LSA-C.Cr.P. art. 882(A), when the sentence does not involve the exercise of sentencing discretion by the trial court. See State v. Haynes, 2004-1893 (La.12/10/04), 889 So.2d 224. The correction of this error does not involve sentencing discretion, as the defendant’s term of probation is mandatory based upon the term of his suspended sentence. Therefore, we amend the defendant’s sentence to reflect that his term of probation is three years, and we affirm this sentence as amended.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and that portion of the sentence which imposed a sentence of five years at hard labor, with three years suspended. We amend the defendant’s sentence to reflect that his term of probation is three years, and we affirm this sentence as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED; SENTENCE AFFIRMED AS AMENDED.

      . The traffic stop and. the interactions between Trooper Salmon and the defendant were captured by the officer’s dashboard camera.

      . The evidence included bills of information with fingerprints, minutes, transcripts and a judgment of conviction (for the first conviction).

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

      . The record reveals that the defendant was represented at trial by an indigent defender. On appeal, he is represented by the Louisiana Appellate Project.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Melvin R. PHILLIPS.
    No. 13-KA-154.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    Rehearing Denied Feb. 5, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux Anne Wallis, Myles Ranier, Brandon Kinnett, Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, for Plain-tiffyAppellee.
    Frederick J. Kroenke, Jr., Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Melvin R. Phillips, Louisiana State Prison, Angola, Louisiana, for Defendant/Appellant, IPP.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| «Defendant, Melvin R. Phillips, was convicted of one count of armed robbery in violation of La. R.S. 14:64, and one count of attempted armed robbery in violation of La. R.S. 14:27:64. Defendant was sentenced to 50 years at hard labor on count one, and 24 years at hard labor on count two, to be served consecutively, without benefit of probation, parole, or suspension of sentence. After adjudication of defendant as a second felony offender, the trial court vacated defendant’s sentences and resentenced him to 75 years at hard labor on count one and 50 years at hard labor on count two, to be served consecutively without benefit of probation, parole or suspension of sentence. This appeal followed.

FACTS

At trial, the following was presented. On September 3, 2011, at approximately 1:00 a.m., Carlos Sosa was working at the Shell gas station on West Esplanade and Williams Boulevard when a man walked in and demanded money. Upon demanding the money, the man raised his t-shirt and displayed the handle of a gun he had secured in his belt. The man kept his hand on the gun for the duration of the robbery. Mr. Sosa complied with the man’s demands and gave him the money from the register, testifying that he was “nervous” and that he didn’t “play around.” Wanting more money, the man then told Mr. Sosa to open the safe and lift the drawer from the register. Mr. Sosa told him that he could not open the safe Land that there was no more money underneath the register drawer, so the man grabbed the money and left. Before leaving, the man instructed Mr. Sosa to stay inside. When the man left, Mr. Sosa called the police and described the man as wearing an army hat, fatigue jacket, white t-shirt, shorts, and tennis shoes.

The robbery was captured on the store’s surveillance cameras. A few days later, Mr. Sosa identified defendant from a photographic lineup as the man who robbed him.

On the same night, approximately at 4:45 a.m., Kenneth Klein was working at the Exxon gas station located at the corner of David Drive and Airline Highway when a man wearing a white t-shirt and camouflage pants entered the store, took out his wallet, and asked for a pack of cigarettes. After retrieving a pack of Kools cigarettes for the man, the man said to Mr. Klein “I’ll take the Kools and everything in the register, or I’ll blow your f* * *ing head off.” The man then displayed a gun which was underneath his shirt. Mr. Klein testified that the man put his hand on the grip of the gun, and that when he did this, he could see the'grip, the trigger guard, the hammer, and a portion of the barrel.

Mr. Klein complied with the man’s demand and placed the money from the cash register on the counter. The man also demanded the money that was underneath the drawer of the register, but when Mr. Klein told him there was no more money the man stated “don’t look at me or I’ll blow your f* * *ing head off.” Mr. Klein testified that at this point he was “very concerned” and “scared” because he believed the man would follow through with his threats. Upon noticing that the man had taken his hand off his gun to reach for the money, Mr. Klein took the opportunity to take out the pistol he had in his front pocket and shoot the man |stwice. Mr. Klein testified that after he shot him the first time it looked as if the man was trying to reach for his gun, so he fired a second shot.

The man ran from the store and Mr. Klein followed him outside to obtain his license plate number. When he exited the store, it appeared to Mr. Klein that the man was getting out of his car. Believing that the man may decide to start shooting, Mr. Klein fired one more shot into the man’s car door in an attempt to keep the man inside his car, and to “mark the car so it would be identifiable.” The man drove away and Mr. Klein called the police to report the incident. Mr. Klein identified defendant in open court as the man who robbed him.

Detective David Canas of the Jefferson Parish Sheriffs Department investigated the armed robbery of Mr. Klein. Upon arrival at the scene, Detective Canas processed the wallet that defendant had inadvertently left on the store counter. The wallet contained defendant’s social security card, his driver’s license, and other various cards containing his name.

Shortly after the Exxon robbery, Detective Randy Thibodeaux of the Jefferson Parish Sheriffs Office was called to the scene of a one car accident at 819 David Drive. The driver of the vehicle, later identified as defendant, had been shot and was transported from the scene to University Hospital by EMS. A bullet hole was observed on the driver’s side of his vehicle. A BB gun was removed from the front seat of the vehicle. Officers also recovered defendant’s VISA card, cell phone, a hat, and camouflage shorts from inside the vehicle. The clothing and hat recovered from defendant’s vehicle matched the description of the man as seen on the Shell station robbery video.

Detective Canas and Sergeant McGre-gor interviewed defendant after he was released from the hospital. During the interview, defendant stated that he went to the Exxon gas station to buy cigarettes and the clerk “shot him for no reason.” He |fifurther stated that the gun found in his vehicle belonged to his nephew. Defendant also denied being involved in the Shell station robbery.

SUFFICIENCY OF EVIDENCE and JURY INSTRUCTION

In his first counseled assignment of error, defendant alleges that the trial court erred in instructing the jury that a toy gun could be a dangerous weapon, and therefore the evidence was only sufficient to prove first degree robbery. In his third pro se assignment of error, the defendant alleges that the evidence was insufficient to prove armed robbery.

As in this case, when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

On appeal, defendant only challenges the sufficiency of the evidence as it relates to his conviction for the armed robbery of Mr. Sosa. Specifically, he contends that the State failed to prove he was armed with a dangerous weapon.

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 (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 (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, cerit. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184. Both the direct and circumstantial evidence 17must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. 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 (La.10/17/00), 772 So.2d 78, 83.

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 by use of force- or’ intimidation while armed with a dangerous weapon. La. R.S. 14:64; State v. Wade, 10-997 (La. App. 5 Cir. 8/30/11), 77 So.3d 275, 279. In the instant matter, defendant’s sufficiency argument centers on whether the BB gun used by defendant could be considered a dangerous weapon under the circüm-stances of this case. Specifically, defendant argues that the BB gun was not used in a manner calculated or likely to produce death or great bodily harm.

La. R.S. 14:2(A)(3) defines a “dangerous weapon” as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” No weapon need ever be seen by | Rthe victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that the defendant was armed with a dangerous weapon. State v. Page, 02-689 (La.App. 5 Cir. 1/28/03), 837 So.2d 165, 176, unit denied, 03-0951 (La.11/7/03), 857 So.2d 517.

Louisiana courts have previously found many and varied objects to be dangerous weapons for purposes of La. R.S. 14:64. These objects have included an ink pen; a liquor bottle hidden in a .pocket; a metal sign post; a hammer; and a toy gun. State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 71-72, writ denied, 08-0380 (La.9/19/08), 992 So.2d 952. In State v. Leggett, 363 So.2d 434 (La.1978), the dangerous weapon test was met where the weapon used was an “air pistol or pellet pistol” which could possibly kill or cause great bodily harm.

When an inherently harmless instrumentality has been used to commit an armed robbery, the jury must find “that there was an actual likely danger of serious bodily harm to anyone present in the highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear of his life.” Davis, supra. “[T]he Supreme Court has been careful to point out that the subjective reaction of the victim is not the sole determinative factor in evaluating'whether an instrumentality has been used as a dangerous weapon.” State v. Lewis, 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d 702, 706.

This Court has recognized that a toy gun has been held to be a dangerous weapon for purposes of an armed robbery conviction if the jury finds that “the interaction between the offender and the victim created a highly charged atmosphere” where there was a danger of serious bodily harm resulting from the victim’s fear for his life. State v. Washington, 00-1312 (La. App. 5 Cir. 5/16/01), 788 So.2d 596, 601, unit denied, 01-1718 (La.5/3/02), 815 So.2d 94.

9Also, in State v. Lewis, supra at 706, the Louisiana Second Circuit Court of Appeal recognized that jurisprudence has:

... long held that unworkable or unloaded guns can constitute dangerous weapons when used in a manner likely to produce death or great bodily harm. The likelihood of this serious harm can come from the threat perceived by victims and bystanders. The highly charged atmosphere of a pistol robbery is conducive to violence regardless of whether the pistol is loaded or workable because the danger created invites rescue and self-help.

Considering the foregoing, we find that the BB gun used by defendant to rob Mr. Sosa constitutes a dangerous weapon, which in the manner used, was “calculated or likely to produce death or great bodily harm.” When defendant showed his weapon and demanded the money from the register, defendant used the BB gun in a manner that led Mr. Sosa to believe it was real. Mr. Sosa was “nervous” when faced with what he believed to be a real gun and so complied with all of defendant’s demands. The interaction between defendant and Mr. Sosa created a highly charged atmosphere where any witness to the robbery upon observing the life threatening situation could have attempted to disarm defendant — by the use of a gun or other weapon — and during such an altercation, death or great bodily harm to the victim, defendant, or witness could have occurred. Thus, the manner in which defendant used the BB gun and the effect it had on Mr. Sosa provided sufficient evidence under Jackson v. Virginia for a jury to find the BB gun to be a dangerous weapon -within the provision of La. R.S. 14:64.

Defendant also argues that the trial court erred in providing the jury with the State’s proposed special jury instruction regarding the use of a “toy gun” as a dangerous weapon. In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. La.C.Cr.P. art. 841; State v. Goal, 01-376 (La.App. 105 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. Defendant failed to state the nature and grounds for his objection to the special jury instruction and therefore he is not entitled to have this issue reviewed and considered by this Court. See State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 7, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411.

Nevertheless, even if considered, defendant’s contention lacks merit. The charge objected to by defendant was a special charge requested by the State which has been used in the past, and has been found to be acceptable. See State v. Woods, 97-0800 (La.App. 1 Cir. 6/29/98), 713 So.2d 1231, 1238, writ denied, 98-3041 (La.4/1/99), 741 So.2d 1281, citing State v. Cittadino, 628 So.2d 251, 255 (La.App. 5 Cir.1993). Here, because there was evidence presented that the gun used by defendant in this case was a BB gun, the instruction was pertinent and correct. The jury could have determined that the BB gun used by defendant was a dangerous weapon since they could have found that the interaction between defendant and Mr. Sosa created a highly charged atmosphere whereby there was danger of serious bodily harm resulting from Mr. Sosa’s fear for his life. Regardless, whether the BB gun constituted a dangerous weapon in the manner used was a question of fact decided by the jury after proper instruction.

Finding that defendant was armed with a dangerous weapon, that the evidence was sufficient to convict defendant of the armed robbery of Mr. Sosa, and that the trial court correctly provided the jury with a pertinent and correct “toy gun” jury instruction, we find no merit to counseled assignment of error number one and pro se assignment of error number three.

MULTIPLE OFFENDER ADJUDICATION

In his first pro se assignment of error, defendant argues that the trial court erred in finding him to be a second felony offender because the State failed to meet | nits burden of proof at the habitual offender hearing. Specifically, defendant contends that his predicate out-of-state guilty plea is invalid and cannot be used for enhancement purposes because the State failed to prove that he was represented by counsel and that his prior conviction would be a felony under the laws of this State.

In his second pro se assignment of error defendant asserts that, should this Court finds that he is precluded from contesting his multiple offender adjudication and sentence, his attorney was ineffective for failing to object and challenge the insufficient evidence presented at the habitual offender hearing.

The State filed a habitual offender bill of information alleging defendant to be a third felony offender. The two predicates alleged in the multiple bill were: 1) an armed robbery conviction committed in Orleans Parish, case number 37-485, and 2) a California conviction for possession of counterfeit United States currency, a violation of 18 USC 472, case number 02 CR 101. The multiple bill further alleged that both predicates were obtained as a result of guilty pleas obtained on March 22, 1996, and June 10, 2002, respectively. Defendant proceeded to a habitual offender hearing on July 19, 2012. At the hearing, federal probation officer Marc Johnson testified that he supervised defendant while he was on probation for his felony federal counterfeiting conviction in case number 02 CR 101, arising out of the Central District of California. Agent Johnson identified defendant in open court as the man he supervised on probation for the federal crime from June of 2002 to August of 2004. The State did not introduce any documentation at the hearing regarding defendant’s California conviction, but did introduce a certified conviction packet with regard to defendant’s Orleans Parish conviction. Based on the testimony of Agent Johnson and the documents introduced into evidence, the trial court found the State proved defendant’s predicate California conviction but not his Orleans Parish conviction, and therefore 112it adjudicated defendant a second felony offender under the multiple bill statute. As such, the trial court vacated defendant’s underlying sentences and re-sentenced defendant as a second offender under La. R.S. 15:529.1.

Defendant now challenges his adjudication as a second felony offender, arguing that the State failed to meet its burden of proof with respect to his California conviction.

To prove a defendant is a habitu-ál offender, the State must prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88. While the State has the initial burden of proof, it need only establish the prior conviction by presenting “competent evidence” that the person was previously convicted of a felony, ie., by introducing certified copies of the minutes of the prior proceedings, the bill of information, matching fingerprints of the accused to those in the record of a prior proceeding, testimony of witnesses to prior crimes, or photographs contained in a duly authenticated record. State v. Breaux, 00-236 (La.App. 5 Cir. 8/29/00), 767 So.2d 904, 909, unit denied, 00-2874 (La.6/29/01), 794 So.2d 808; (citing State v. Richmond, 98-1015 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 37; and State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, 610, writ denied, 98-1458 (La.10/30/98), 723 So.2d 971). The State can also establish identity by having someone like a probation officer come in and testify from personal knowledge that the defendant is the same person he previously supervised after the prior conviction. See State v. DeSalvo, 98-353 (La.App. 5 Cir. 10/14/98), 721 So.2d 938, 942, writ denied, 98-2828 (La.2/26/99), 738 So.2d 1067, (wherein parole officer’s testimony and identification of the defendant was deemed sufficient).

113When the State relies on a pri- or conviction that is based on a guilty plea in proving the defendant’s multiple offender status, and the defendant denies the allegations of the multiple bill, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was 'represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779-80 (La.1993). When the state seeks to enhance a sentence based upon a prior plea of guilty entered in a state other than Louisiana, in order to prove the validity of the plea the state need only show that the defendant was represented by counsel. See State v. Mills, 570 So.2d 540 (La.App. 4 Cir.1990); State v. Cressy, 440 So.2d 141 (La.1983); State v. Talbert, 416 So.2d 68 (La.1982).

Once the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. Shelton, supra. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. Id. This final burden can be met if the State produces a “perfect transcript” articulating the Boykin colloquy between the defendant and the trial judge, or any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. State v. Collins, 04-255, p. 6 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1154, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780.

[14By 1993 La. Acts 896 § 1, the Louisiana Legislature added La. R.S. 15:529.1(D)(1)(b) regarding the burdens of proof at a multiple offender hearing. The amendment was effective August 15, 1993, which was approximately one month following the decision in Shelton, and provides as follows:

(b) Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

(Emphasis added).

In State v. Windham, 6B0 So.2d 688 (La.1993) (per curiam), without mentioning LSA-R.S. 15:529.1(D)(1)(b), the Louisiana Supreme Court held that a defendant cannot challenge a predicate guilty plea on the basis of non-compliance with Boykin for the first time on appeal:

... In the absence of a contemporaneous objection at the multiple offender hearing, the defendant otherwise may not complain for the first time on review that the records of his guilty pleas introduced by the State at the multiple offender hearing .did not reflect compliance with this court’s Boykin rules.

This Court likewise has precluded a defendant from raising claims for the first time on appeal relating to the State’s ultimate burden under Shelton. State v. Jackson, 99-1256 (La.App. 5 Cir. 7/25/00); 767 So.2d 848, writ denied, 00-2528 (La.10/5/01), 798 So.2d 960. See also State v. Richmond, 98-1015 (La.App. 5 15Cir. 3/10/99), 734 So.2d 33, 37; State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 926, writ denied, 98-792 (La.9/16/98), 721 So.2d 477.

Here, because defendant’s counsel did not file a written response or assert an objection to the issue of his lack of representation in the California guilty plea prior to imposition of his enhanced sentences, we find that defendant is precluded from raising this claim for the first time on appeal as it relates to the State’s ultimate burden under Shelton.

Nevertheless, because defendant also asserts that his trial counsel was ineffective for failing to object or challenge the validity of his California conviction on the basis that the State failed to prove he was represented by counsel at the time of his guilty plea, the merits of defendant’s pro se assigned error must be addressed.

Under the Sixth Amendment to the United States Constitution and Article, I, § 13, of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141. To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Casimer, 12-678 at 19, 113 So.3d at 1141 (citing Strickland, supra). An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Ca-simer, supra (quotations omitted). To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Id.

11fiGenerally, a claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983. When the record contains sufficient evidence to rule on the merits of the claim, however, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1247, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). Given the nature of this particular claim, the appellate record contains sufficient evidence for this Court to address the merits of defendant’s ineffective assistance of counsel claim.

At the habitual offender proceeding in this case, the only evidence used to establish defendant’s California conviction was the testimony of Agent Johnson, the federal probation officer who supervised defendant in Louisiana subsequent to his conviction. While it appears the State may have met its burden of proving the existence of defendant’s prior guilty plea and his identification through the testimony of Agent Johnson, the State offered no evidence to prove that defendant was represented by counsel when defendant’s guilty plea was taken. Therefore, the State failed to meet its initial burden under Shelton regarding this guilty plea. A guilty plea obtained in violation of a defendant’s right to counsel cannot be used for enhancement. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

Considering the record and lack of proof presented at the habitual offender adjudication in this case, defendant has shown a deficiency in his trial counsel’s performance. As a result of this deficiency, defendant has also established that he [17has been prejudiced by his adjudication as a second felony offender and the enhanced sentences imposed as a direct result of his adjudication. Accordingly, we must vacate the finding that defendant is a multiple offender and enhanced sentences, and remand this matter for further proceedings. Since double jeopardy principles are inapplicable to sentence enhancement proceedings, the State may retry defendant as a multiple offender. See, State v. Brooks, 02-1051 (La.App. 5 Cir. 2/25/03), 841 So.2d 997, 1000, writ denied, 03-0664 (La.6/27/03), 847 So.2d 1271; State v. Raymond, 98-119 (La.App. 5 Cir. 8/25/98), 718 So.2d 1010, 1014.

EXCESSIVE SENTENCE

Defendant’s remaining allegations of error argue that his sentences are excessive and that his counsel was ineffective for failing to file a motion to reconsider sentence. However, since this Court must vacate defendant’s enhanced sentences, any discussion of defendant’s enhanced sentences as excessive, and/or his trial counsel’s failure to object to the excessiveness of his enhanced sentences are rendered moot. See State v. Thomas, 08-813 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 607, unit denied, 09-1294 (La.4/5/10), 31 So.3d 361.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and we find none which merit consideration.

For the above discussed reasons, the defendant’s convictions are affirmed. The defendant’s adjudication as a second felony offender and his enhanced sentences are vacated, and the matter is remanded for further proceedings.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER ADJUDICATION AND ENHANCED SENTENCES VACATED; CASE REMANDED.

      . It was later learned that the gun used in the Shell and Exxon station robberies was a BB gun.

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).


author: GENOVESE, Judge. CONERY, J.,

text:
    George L. BRUCE v. FORD MOTOR COMPANY, et al.
    No. 13-179.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2013.
    Rehearing Denied Feb. 12, 2014.

      Fred A. Pharis, Pharis Law Offices, Alexandria, Louisiana, for Plaintiff/Appellee, George L. Bruce.
    Carl J. Giffin, Jr., Robert W. Maxwell, Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, Louisiana, for Defendants/Appellants, Ford Motor Company, Inc. and Marler Ford Company, Inc.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

| iln this redhibition suit, Defendants, Ford Motor Company, Inc. (Ford Motor Company) and Marler Ford Company, Inc. (Marler Ford), appeal the judgment of the trial court in favor of Plaintiff, George L. Bruce, awarding him the purchase price of the vehicle, expenses, and attorney fees. Mr. Bruce has answered the appeal seeking an increase in the attorney fee award for work performed on post-trial motions and on appeal. For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 2008, Mr. Bruce purchased a 2007 Ford F-150 with 8,904 miles from Marler Ford and paid $30,118.63 for the truck and related expenses. The truck was a certified pre-owned vehicle and, therefore, was covered by a warranty. Mr. Bruce subsequently brought the truck in on several occasions for maintenance and repairs.

Due to continuing unresolved problems with the truck, Mr. Bruce instituted this redhibition action, naming Ford Motor Company and Marler Ford (sometimes collectively referred to as Ford herein) as defendants. Mr. Bruce’s petition set forth multiple occasions when he brought the truck in for repairs and prayed for a rescission of the sale with a return of its purchase price, incurred expenses, interest, and attorney fees.

Following a trial on the merits, the trial court rendered judgment in favor of Mr. Bruce for $35,917.72, plus legal interest and court cost. The trial court also awarded Mr. Bruce $17,000.00 in attorney fees. Thereafter, Ford filed a motion |2for new trial, and Mr. Bruce filed a motion to increase the attorney fee award. Following a hearing, the trial court denied both motions. Ford has appealed the trial court’s judgment in favor of Mr. Bruce, and Mr. Bruce has answered the appeal relative to an increase in attorney fees.

ASSIGNMENTS OF ERROR

On appeal, Ford presents the following assignments of error for our review:

I.
The trial court erred in rendering judgment in favor of [Mr. Bruce] because there was no evidence or the evidence was insufficient to support its finding that a “defect” existed in the Ford F-150 “Super Cruiser” at the time it was delivered to [Mr. Bruce].
II.
In the alternative, the trial court erred by awarding [Mr. Bruce] the full sales price of the F-150 instead of a reduction in its price, given that [Mr. Bruce] drove the truck over 67,000 miles throughout a three-year period.
III.
The trial court erred in awarding to [Mr. Bruce] an excessive amount of attorney[ ] fees for a case of this nature.

LAW AND DISCUSSION

The standard of review to be applied in this case was recently set forth in Thibodeaux v. Kaufman Trailers, Inc., 12-885, pp. 2-3 (La.App. 3 Cir. 2/6/13), 108 So.3d 1283, 1285-86, wherein we stated:

The existence of redhibitory defects is a question of fact, and the trial court’s conclusions about them should not be set aside absent manifest error. Parker v. Dubus Engine Co., 563 So.2d 355 (La.App. 3 Cir.1990). An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless the fact finder is clearly wrong. Lewis v. State, Through Dep’t of Transp. and Dev., 94-2370 (La.4/21/95), 654 So.2d 311; Thomas v. Albertsons, Inc., 28,950 (La.App. 2 Cir. 12/11/96), 685 So.2d 1134, writ denied, 97-0391 (La.3/27/97), 692 So.2d 395.

\ Sufficiency of Evidence

An action in redhibition arises pursuant to Louisiana Civil Code Article 2520, which provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

In the instant matter, the trial court found that “[a]lmost immediately!,] a litany of minor problems and others not so minor manifested themselves. The most significant event in the [c]ourt’s mind occurred when the vehicle accelerated on its own in traffic and once again at [Mr. Bruce’s] residence.” The trial court expressly noted “that the throttle body and vehicle’s transmission were also replaced at one point[,]” and “a long series of complaints and attempted repairs including numerous minor repairs, or at least less serious ones, were made.” Accepting Mr. Bruce’s testimony that he would not have purchased this vehicle had he known it had been titled prior to his purchase, or had he known of the defects, and considering the evidence that “[n]umerous complaints and attempts at repairs were made by both Marler and a dealership in Natchez, Mississippi!,]” the trial court found that Mr. Bruce was entitled to a rescission of the sale. We find no manifest error in this finding, and we affirm same.

In its first assignment of error, Ford asserts that Mr. Bruce failed to prove the existence of a defect. We disagree.

|4“A buyer of an automobile who asserts a redhibition claim need not show the particular cause of the defects making the vehicle unfit for the intended purposes, but rather must simply prove the actual existence of such defects.” Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992); Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871 (1924). The buyer in a redhibition action is also not required to negate all other causes of a defect. Ewing and Salter, Inc. v. Gafner Automotive & Mach., Inc., 392 So.2d 762 (La.App. 3 Cir.1980), writ denied, 396 So.2d 933 (La.1981). “The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale.” Rey [v. Cuccia ], 298 So.2d [840,] 843 [ (La.1974) ].

Bonnette v. Ford Motor Co., 11-1274, pp. 4-5 (La.App. 3 Cir. 3/7/12), 88 So.3d 1164, 1168.

Ford argues that Mr. Bruce’s “case is entirely based upon his experience of symptoms — engine surge and unintended acceleration — that, despite Ford’s extensive efforts[,] were never duplicated, and the cause of which was never identified, not even by [Mr. Bruce] himself.” However, Mr. Bruce does not bear the burden of showing the cause of the problems that he experienced with the vehicle. In fact, the record bears out that Ford itself never identified the source of this repeated complaint because the vehicle was not “throwing codes” to indicate the source of the problems.

In addition to Mr. Bruce’s primary complaint of the engine surging, there is ample evidence in the record establishing what the trial court described as a “litany” of problems. These additional problems included a “stumbling” or hesitation of the engine, various lights/indicators flashing, gauges failing completely, a dead battery on two occasions, the transmission needing | ¡-.replacement, a throttle body twice needing replacement, repair and replacement of electrical wiring, and repair of a leaking intake gasket.

Ford contends that some of the “repairs” considered by the trial court were actually only routine maintenance and minor repairs that were done at no charge to Mr. Bruce. While this is true to some extent, many other “repairs” were much more significant problems, such as replacement of the throttle body (twice) and replacement of the transmission. All of these problems required the vehicle to be brought in for repair and were in addition to the multiple failed attempts to have the recurring problem of the engine surge fixed. The jurisprudence is clear that “[wjhile a minor defect or defects alone may not rise to the level of a redhibitory defect, multiple minor defects, even when repaired, may support a claim for redhibition.” Jones v. Winnebago Indus., Inc., 47,137, p. 7 (La.App. 2 Cir. 5/16/12), 92 So.3d 1113, 1118 (citing Berney v. Rountree Olds-Cadillac Co., Inc., 33,388 (La. App. 2 Cir. 6/21/00), 763 So.2d 799). Thus, this assignment of error has no merit.

Ford also argues that a separate personal injury lawsuit for damages brought by Mr. Bruce against his son, alleging that his son was at fault in the operation of this same truck in a car-washing incident, constituted a “judicial admission.” In that separate lawsuit, Mr. Bruce alleged that his son operated the truck in an “unsafe, imprudent, reckless[,] and careless manner.” There were no allegations against Ford in the separate lawsuit. There was no judicial confession related to the instant redhibition lawsuit. Even assuming there was some sort of judicial confession in the separate lawsuit, there were numerous instances of multiple defects relating to the truck. This is a manifest error case. We cannot say that the trial judge was clearly wrong or committed manifest error.

| sRescission of Sale lReduction in Price and Credit for Use of Vehicle

In its second assignment of error, Ford asserts error in the trial court’s award of the full sales price of the vehicle. It asserts that even if Mr. Bruce met his burden of proof in his redhibition claim, he would only be entitled to a reduction in the sales price of the vehicle. Alternatively, Ford argues that it is entitled to a credit to account for Mr. Bruce’s use of the vehicle for a three-year period and putting approximately 67,000 miles on said vehicle. We agree, in part, with this contention.

In Thibodeaux, 108 So.3d at 1287, this court discussed a purchaser’s remedy in redhibition, stating as follows:

If a purchaser buys a new vehicle with defects, and those defects render the use of that vehicle inconvenient or imperfect to the extent that the buyer would not have purchased the vehicle if he had known of the defects, the buyer is entitled to a rescission of the sale instead of merely a reduction in the purchase price.

In this case, Mr. Bruce testified that he would not have purchased the vehicle if Ford had told him that it had been previously titled and leased, or had he known of the defects. Therefore, we find that the record fully supports the trial court’s ruling that Mr. Bruce was entitled to obtain a rescission of the sale as opposed to a reduction in the sales price. Id.; La.Civ. Code art. 2520.

We do agree, however, that Ford is entitled to a credit for Mr. Bruce’s use of the vehicle. Ford argues on appeal that “[a]t minimum, [it] is entitled to a credit for [Mr. Bruce’s] excessive use of the truck over a three year time period[.]” Mr. Bruce’s “response is that Ford did not only not provide any basis for the value of the use, any use would be overridden by the constant manifestations of multiple defects causing multiple repairs at two different Ford dealerships and the inconveniences associate[d] therewith.”

|7Louisiana Civil Code Article 2531 provides that a seller is entitled to a credit “if the use made of the thing, or the fruits it has yielded, were of some value to the buyer.” Based upon our review of the record, we find that Ford met its burden of proof pursuant to La.Civ.Code art. 2531. Unequivocally, the use of the vehicle for three years and putting approximately 67,-000 miles on the vehicle establishes that it was of some value and use to Mr. Bruce. While cognizant of the burdensome and considerable inconvenience experienced by Mr. Bruce, and given his extensive use of the vehicle, and in balancing same, we find that Ford is entitled to a credit for such use in the amount of $15,000.00. Accordingly, the judgment of the trial court in favor of Mr. Bruce in the amount of $35,917.72 is reversed and vacated, and we render judgment herein in the amount of $20,917.72.

Attorney Fees

In its final' assignment of error, Ford argues that the trial court erred in awarding Mr. Bruce excessive attorney fees. In Mr. Bruce’s answer to appeal, he asserts error by the trial court in failing to award him attorney fees to account for post-trial and appellate work performed by his counsel.

A trial court has great discretion in awarding attorney fees in a redhibition case. Health Education and Welfare Federal Credit Union v. Peoples State Bank, 11-672 (La.App.3d Cir.12/07/11), 83 So.3d 1055; Dailey v. The Home Furnishings Store, 02-1225 (La.App.4th Cir.09/17/03), 857 So.2d 1051. Before an attorney’s fee award will be disturbed[,] the record must reveal that the trial court abused its much discretion in making the award. Smith v. Acadiana Mortg. of Louisiana, Inc., 42,795 (La.App.2d Cir.01/30/08), 975 So.2d 143; Health Education and Welfare Federal Credit Union, supra; Buteau v. Leleux, 591 So.2d 1261 (La.App. 3d Cir.1991).

Jones, 92 So.3d at 1119-20.

Louisiana Rules of Professional Conduct, Rule 1.5, addresses attorney fees and provides:

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The ^factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

In this case, Mr. Bruce and his counsel entered into a contract whereby they both agreed to a charge of $300.00 per hour for the amount of attorney fees, regardless of the outcome of the matter. Mr. Bruce’s counsel submitted a detailed affidavit outlining the time he spent working on the ease. Though $300.00 per hour is arguably on the high side for a case of this type, we cannot say that the attorney fee award of $17,000.00, based upon a charge of $300.00 per hour, is an abuse of discretion, considering that counsel has effectively shown his experience in this area of the law and the time he expended, including a trial on the merits, with no countervailing evidence having been presented by Ford relative to excessive attorney fees.

In his answer to appeal, Mr. Bruce seeks additional attorney fees for post-trial work and work performed on appeal. Considering Mr. Bruce’s success, 19in part, on appeal, we award him an additional $1,500.00 in attorney fees for work done on appeal.

DECREE

Based on the foregoing, we affirm the judgment of the trial court in favor of George L. Bruce decreeing a rescission of the sale. The trial court’s award of $17,000.00 in attorney fees is also affirmed. The judgment of the trial court awarding Mr. Bruce $35,917.72 is reversed and vacated, and we render judgment herein in favor of George L. Bruce and against Ford Motor Company, Inc. and Marler Ford Company, Inc. in the amount of $20,917.72. Additionally, we render judgment herein in favor of Mr. Bruce in the amount of $1,500.00, representing attorney fees for work done on appeal. The costs of this appeal are assessed at seventy-five percent to Ford Motor Company, Inc. and Marler Ford Company, Inc. and twenty-five percent to George L. Bruce.

AFFIRMED IN PART;

REVERSED IN PART;

AND RENDERED.

CONERY, J.,

dissents and assigns reasons.

|! Plaintiff, Mr. George Bruce, paid Mar-ler Ford $24,995.00 for a pre-owned pickup truck with approximately 9,000 miles on it. The majority affirms the trial court judgment finding a redhibitory defect and ordering return of the purchase price, and damages. Mr. Bruce used the vehicle for over three years and drove over 67,000 miles. The majority reduces the trial court judgment by $15,000 for the use of the vehicle. The majority affirmed a $17,000 award for Mr. Bruce’s attorney’s fees, awarded additional attorney’s fees for work on appeal, and assessed costs seventy-five percent to defendants and twenty-five percent to Mr. Bruce. I respectfully dissent and would reverse the trial court, dismissing plaintiffs claim with prejudice and at his cost.

The majority has correctly summarized much of the law applicable in this case. Further elaboration on a few key points will help illuminate the main issues of concern. A plaintiff filing a redhibition suit must show that a hidden defect existed at the time of the sale of the defective “thing,” and that it existed before delivery. A good faith seller who had no knowledge of a defect is only obligated to “repair, remedy or correct” the defect. La. Civ. Code arts. 2520, 2530, and 2531. The buyer must show more than mere “symptoms.” Fidele v. Crescent Ford Truck 2Sales, Inc., 00-1934, p. 9 (La.App. 5 Cir. 4/11/01), 786 So.2d 147, 153. See Green v. Benson & Gold Chevrolet, 01-1161 (La. App. 5 Cir. 2/26/02), 811 So.2d 970, writ denied, 02-0891 (La.5/31/02), 817 So.2d 96; Smith v. General Motors Acceptance Corp., 542 So.2d 831 (La.App. 3 Cir.1991); Johns v. American Isuzu Motors, Inc., 622 So.2d 1208 (La.App. 2 Cir.1993).

There is no evidence in the record to show that Marler Ford knew of a defect in the vehicle it sold to Mr. Bruce, hence the seller was a “good faith” seller and was only bound to “repair, remedy, or correct” any defect actually discovered or brought to its attention after purchase. La.Civ. Code art. 2531. There is a presumption that the defect existed at the time of delivery only if the defect manifests itself within three days of delivery. La.Civ.Code art. 2520. No “alleged” defects manifested within three days of delivery in this case. As a good faith seller, Marler Ford must be given an opportunity to “repair, remedy, or correct” any alleged defect. La.Civ. Code art. 2531.

In Cazaubon v. Cycle Sport, LLC, 11-0289, p. 3 (La.App. 1 Cir. 11/9/11), 79 So.3d 1063, 1065-6, the court noted:

In order to establish a prima facie case of redhibition, a purchaser must show that a non-apparent defect existed at the time of the sale. La. C.C. art 2520 and 2530; Belle Pass Terminal, Inc., 634 So.2d at 494. “Defect” as contemplated in article 2520 means a physical imperfection or deformity or a lacking of the necessary components or level of quality. Id. Apparent defects which the purchaser might have discovered by simple inspection are not redhibitory defects. La. C.C. art. 2521.
Once the purchaser establishes a pri-ma facie case, the burden shifts to the seller to show that he can somehow escape liability. Belle Pass Terminal, Inc., 634 So.2d at 494. Whether or not a thing is defective is a factual determination to be made by the trier of fact, which determination will not be set aside on appeal absent manifest error. Id.

|sLike the trial court in Cazaubon, the trial court in this case concluded that Mr. Bruce met his burden of proving a redhibi-tory defect. Faced with the manifest error rule on appeal in Cazaubon, the appellate court conducted a review of the entire record to determine whether there was an adequate basis for the trial court’s ruling. After thoroughly reviewing the facts in the record, the appellate court concluded:

There was no evidence offered to prove that anything was ever actually wrong with the engine. Cycle Sport and D & L Power Sports both examined the engine and found nothing wrong. Mr. Ca-zaubon did not have a mechanic examine bike. The only evidence he presented was his own testimony that he looked at the bike with the service manager (who did not testify) and knew what was wrong. Finally, Mr. Cazaubon testified at trial that he did not know if there was anything wrong with the bike’s engine. Based upon this, we find that Mr. Ca-zaubon failed to carry his burden of proof that the bike was defective, and the court was clearly wrong in concluding that the bike had a defective engine.

Id. at 1067.

Likewise, in this case, a careful review of the record leads this writer to the conclusion that no defect has been proven. The trial judge’s conclusory statement that there was no evidence to refute plaintiffs case, and that he found plaintiffs complaints credible not only finds no support in the record, but, to the contrary, is refuted by the evidence in the record.

According to the record, Mr. Bruce bought a certified pre-owned Ford F-150 pick-up truck from Marler Ford on January 14, 2008. He also purchased an extended warranty. The odometer reading was 8,904 miles. The vehicle was first returned to Marler Ford on January 28, 2008, with an inoperable trailer light. A blown fuse was replaced. The odometer read 9,605 miles. There was no manifestation of a defect in the “thing” within three days of sale. A burnt fuse in a | ¿trailer light fourteen days after sale is certainly not an indication of a redhibitory defect.

The next “repair” was done on February 25, 2008, mileage 14,038, some 5,134 miles and over 30 days later. Mr. Bruce complained that the air conditioner was malfunctioning, and that the vehicle was “missing,” “running rough,” and “dies on acceleration.” Some of the gauges were inoperable. The vehicle was repaired under warranty at no cost to Mr. Bruce. A loaner vehicle was provided, as was the case with all warranty repairs in this case.

On July 7, 2008, at 21,490 miles, Mr. Bruce complained that when coming to a stop, the “vehicle will hesitate and then surge when going to accelerate and when trying to pass.” Other minor problems including a power steering fluid cap and peeling emblems were repaired. After keeping the vehicle for eight days, mechanics at the dealership were unable to duplicate sudden acceleration or' engine surge complaints.

Other minor repairs were made under warranty and some routine maintenance was performed. The truck would not start on two occasions. The batteries, were replaced on both occasions. After the second replaced battery, it was discovered that Mr. Bruce had installed an after-market device that was draining the batteries. No further complaints of battery failure were noted after the device was removed.

The evidence showed that on May 27, 2009, over one year after purchase, and after driving the vehicle 26,659 miles, Mr. Bruce complained of engine surge when at a stop, that the engine was “missing,” “running rough” and “shuddering.” A diagnostic computer test run at the dealership demonstrated a “throttle body” 1 r,problem. The dealership installed a new throttle body under warranty, a relatively minor repair and certainly not a hidden defect in the “thing” at the time of sale.

Mr. Bruce again complained that the vehicle was “missing and running rough” one month later, on June 29, 2009. Another “throttle body” problem was found after 38,635 miles and again was replaced at no cost to Mr. Bruce. Again, a relatively minor problem that developed after extensive use was repaired pursuant to the warranty obligation.

On July 20, 2009, at 43,719 miles, Mr. Bruce again complained of engine surge and vehicle missing. The dealership kept the truck for ten days and drove it extensively with computer diagnostic equipment attached. According to the records, mechanics were unable to duplicate the problem.

Mr. Bruce has several similar complaints of engine surge, none of which would show on computer diagnostic testing and could not be duplicated at the dealership. Ford sent an expert mechanic, Chris Furnas, who ran a series of objective diagnostic tests, reviewed all of the repair records and could find no evidence of a vehicle defect. He, likewise, could not duplicate the “engine surge” complaint.

The only “major repair” to the truck was a transmission problem. Ford replaced the transmission under warranty at no cost to Mr. Bruce over three years after the sale on March 21, 2011, at 75,359 miles. By then, Mr. Bruce had driven the vehicle almost 67,000 miles, hardly evidence of a hidden redhibitory defect present at the time of the sale. A minor repair to the transmission was made shortly after replacement, after which Mr. Bruce parked the vehicle and sued.

Plaintiff argues and the majority agrees that “While a minor defect or defects alone may not rise to the level of a redhibitory defect, multiple minor defects, even|fiwhen repaired, may support a claim for redhibition,” citing Jones v. Winnebago Indus., 47-137, p. 7 (La.App. 2 Cir. 5/16/12), 92 So.3d 1113, 1118 (citing Berney v. Rountree Olds-Cadillac Co. Inc., 33-388 (La. App. 2 Cir. 6/21/00), 763 So.2d 799).

Jones can be clearly distinguished from this case. In Jones, on plaintiffs’ first trip in his brand new $189,000 RV, the motor home failed and was taken back to the dealership within three days of purchase. During the first year, the vehicle was out of service in the shop 242 days. As of trial, almost three years after purchase, only 2,904 miles were logged for recreational use.

The dealership’s service manager was on plaintiffs side and testified that he thought all of plaintiffs’ concerns were legitimate. He corroborated the problems had been occurring “from day one.” He testified “that in all his experience in the RV service business, he had never seen another motor home with the number, type and breadth of problems that plaintiffs’ RV had.” Id. at 1117. The dealership was granted a directed verdict, as there was no evidence of defective repair. The manufacturer was held liable in redhibition.

The evidence here is almost exactly the opposite. No “defect” was proven at all. All of the dealership’s mechanics and Chris Furnas, the expert Ford mechanic who examined and tested the vehicle, could not duplicate Mr. Bruce’s “engine surge” complaints after extensive objective testing, and could find no evidence of any vehicle defect.

In Berney, the vehicle was a used 1995 Chevy Blazer with 49,148 miles on it at the time of purchase. The check engine light (CEL) was malfunctioning within three days of purchase. Numerous relatively minor problems were noted and corrected under extended warranty. The CEL was still malfunctioning at time of 17trial about one year later. The dealership continued to note objective evidence from computer diagnostics, as three different computer “codes” demonstrated problems with the CEL. Nevertheless, the evidence showed plaintiff continued to use the vehicle and logged 17,000 miles on the vehicle since purchase. The court of appeal reversed the judgment of the trial court ordering return of the purchase price and damages, and instead, ordered a reduction of the sales price of $2,000.00, including $999.05 for past and future repairs. The finding of a redhibitory defect was affirmed, as an award in “quanti minoris,” or diminution of the purchase price, must be based on a finding of a redhibitory defect. La.Civ. Code art. 2520.

In this case, unlike Berney and Jones, there was no manifestation of a defect within three days of purchase and there was no objective evidence of Mr. Bruce’s complaint, the “engine surge.” Mr. Bruce used his pick-up truck for over three years and put 67,000 miles on it, almost twice the average mileage of 12,000 miles per year. Marler Ford and Ford met its obligations under La.Civ.Code art. 2531 to “repair, remedy, or correct all defects” brought to its attention. It was Mr. Bruce’s burden to establish that a complaint or symptom he experienced was legitimate and was caused by a redhibitory defect.

Since all other complaints and problems were timely and properly addressed by Marler Ford and Ford, the only possible evidence of a “hidden defect” in this case is Mr. Bruce’s uncorroborated “sudden acceleration” or “engine surge” complaints. At best, Mr. Bruce’s complaints, if believed, may be a “symptom”.of a hidden defect. The law is clear that a complaint or a “symptom” is not evidence of a defect. Fidele, 786 So.2d 147. Mr. Bruce’s testimony is not only uncorroborated, but contrary to the trial court’s ruling, his statements are not supported by the record and are not credible.

|sIn one of his “engine surge” complaints, Mr. Bruce claimed the truck suddenly accelerated on its own in wet weather. Mr. Bruce claimed he could not slow the vehicle and “stood on the brakes with both feet,” but was unable to stop the vehicle until it ran in a ditch. Mr. Bruce called Marler Ford, who immediately dispatched someone to bring the truck to the dealership. After keeping the truck for testing and test driving with computer diagnostic testing equipment attached, the mechanics at Marler Ford were unable to find any evidence of an engine surge or sudden acceleration and could not duplicate Mr. Bruce’s complaint. Their findings, or lack thereof, were evidenced by the documents from the dealership filed in the record. Later, when Ford’s expert, Mr. Chris Furnas examined the truck, he tested the brake override system by pressing the accelerator to the floor, applying the brakes at the same time. The brake override system held and the vehicle remained stopped, in direct contradiction to Mr. Bruce’s testimony that the brakes could not hold the “engine surge.” Mr. Furnas could not duplicate an engine surge problem at all after extensive sophisticated computer diagnostic testing. His expert testimony is unrefuted.

Mr. Bruce further testified at trial that he and his wife were injured due to another sudden engine surge at his home during a “car washing incident.” The trial judge remarked on the record that he found that Mr. Bruce’s complaints of engine surge were credible and uncontroverted. The problem with that finding is that it ignores all of the evidence in the record except Mr. Bruce’s uncorroborated testimony. Mr. Furnas’ expert opinion and the dealership repair records were all based on objective, computer diagnostic testing. Plaintiff cannot simply argue that the trial court stated that plaintiff is credible and the evidence is uncontroverted, and then have this court affirm under the manifest error rule. The appellate court |flmust review the entire record and make an independent determination that the trial court’s decision is supported by the evidence in the record. Mr. Bruce’s testimony is not so supported.

On the key issue of credibility, Mr. Bruce filed a separate personal injury suit in Catahoula Parish against his son. Ford was not named as a party. Mr. Bruce claimed in that suit that the accident causing injury to he and his wife during the “car washing incident” was the negligence of his son, George Steven Bruce. A sworn affidavit signed by Mr. Bruce was attached to the petition, which stated:

The accident was caused solely by the negligence of GEORGE STEVEN BRUCE, which is imputable to the liability insurance carrier providing liability insurance coverage on the 2007 Ford F-150 pickup truck registered to GEORGE L. BRUCE, and being operated at the time of this accident by GEORGE STEVEN BRUCE, incorporated herein as if copied in extensor in the following:
a) By attempting to operate the pickup truck without totally and completely entering the pickup truck and seating himself at an operator’s position before moving the truck forward;
b) By causing the pickup truck to accelerate at an excessive rate of speed exerting force to the passenger and the persons involved in the washing procedure[;]
c) Failing to see plaintiffs action and taking proper precaution before moving the pickup truck;
d) In general, operating the pickup truck under his control in an unsafe, imprudent, reckless, and careless manner[.]

Defendant cites La.Civ.Code art. 1853, which provides that “A judicial confession is a declaration made by a party in a judicial proceeding. The confession constitutes full proof against the party who made it.” See C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156. Louisiana Civil Code Article 1853 is clear that “A judicial confession may be revoked only on the ground of error of fact.” Mr. Bruce clearly made a judicial confession that the “engine surge” on the day of the car washing incident was caused by the | innegligence of his son, not by some sudden “engine surge” problem caused by a redhibitory defect in the truck.

The defense argues, and this writer agrees, that the trial judge’s express finding that the “incident at plaintiffs residence” (the car washing incident) supports the judgment rescinding the sale is clearly wrong. The trial judge did not consider, discuss, or allocate any weight to Mr. Bruce’s judicial confession. By failing to follow the dictates of La.Civ.Code art. 1853, the trial judge committed legal error. Moreover, his findings are manifestly erroneous. Clearly, a judicial confession was made as to that particular complaint of engine surge, fatally damaging Mr. Bruce’s credibility on this key issue. Cazaubon, 79 So.3d 1063; Smith, 542 So.2d 831.

As to the trial judge’s “finding” that plaintiffs complaints were uncontroverted, in reviewing the record, the testimony of Ford’s expert, Mr. Furnas, is especially relevant as it is based on sound, objective scientific evidence. Bruce produced no testimony from an expert or anyone else of a vehicle defect. Therefore, Mr. Furnas’ expert testimony is the only expert testimony in the record on this issue, and he found no defect.

In order to go the extra mile and fulfill its obligation under La.Civ.Code art. 2531 and its warranty, Marler Ford and Ford offered to install a testing unit for Mr. Bruce to use, a vehicle diagnostic recorder or VDR. That equipment could potentially have verified Mr. Bruce’s uncorroborated complaints of engine surge. Mr. Bruce declined to use the equipment, thus depriving Ford and the dealership of |nthe opportunity to “repair, remedy, or correct” any defect that have been demonstrated. La.Civ.Code art. 2531.

CONCLUSION

The trial judge’s “finding” that Mr. Bruce made credible complaints about engine surge and that the evidence was un-controverted is clearly wrong and his verdict finding a redhibitory defect and awarding damages must be reversed.

      . The price of the track and the related expenses included the cash price ($24,995.00), finance charges ($2,718.53), amounts paid to public officials ($740.10), and an extended warranty ($1,665.00), for a total of $30,118.63.

      . The amount of the judgment represents the cash price, finance charges, fees, extended warranty, insurance costs, costs of repairs, and tire replacement.

      . Ford makes much of its inability to duplicate the engine surge and of Mr. Bruce’s decline of Ford’s offer to install a "Vehicle Data Recorder (VDR)[.]” However, Ford’s expert, qualified in automotive mechanics and repair of Ford vehicles, Chris Furnas, testified that when Ford had the vehicle, they were using a diagnostic tool known as an "IDS” that actually provides more data and can document a vehicle’s condition better than a VDR. Additionally, he conceded that there can be a vehicle malfunction that occurs without a code being shown.

      . After the trial in this case, Mr. Bruce amended his suit in Catahoula Parish to name Ford. The amendment did not correct the judicial confession, as Mr. Bruce did not acknowledge that there was an "error of fact” in his original pleading.