text:
    EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
    No. 2012-CC-2273.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Packard Truck Lines, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2008-07335; to the Court of Appeal, Fourth Circuit, No. 2012-C-0921.

Denied.

VICTORY, J., would grant.

KNOLL, J., recused.


source: Caselaw Access Project

license: Public Domain

text:
    EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
    No. 2012-CC-2275.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Amerada Hess Corporation, et al.; Berry Petroleum Company; Chevron U.S.A., Inc.; Exxon Mobil Corporation; Shell Offshore, Inc.; Shell Oil Company, et al.; Swepi, LP; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2008-07335; to the Court of Appeal, Fourth Circuit, No. 2012-C-0937.

Denied.

VICTORY, J., would grant.

KNOLL, J., recused.


text:
    EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
    No. 2012-CC-2287.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Acme Truckline, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2008-07335; to the Court of Appeal, Fourth Circuit, No. 2012-C-0936.

Denied.

VICTORY, J., would grant.

KNOLL, J., recused.


text:
    EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
    No. 2012-CC-2296.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Patterson Truckline, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2008-07335; to the Court of Appeal, Fourth Circuit, No. 2012-C-0934.

Denied.

VICTORY, J., would grant.

KNOLL, J., recused.


text:
    EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
    No. 2012-CC-2306.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Intracoastal Tubular Services, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2008-07335; to the Court of Appeal, Fourth Circuit, No. 2012-C-0935.

Denied.

VICTORY, J., would grant.

KNOLL, J., recused.


text:
    STATE of Louisiana v. David BROWN.
    No. 2012-KK-2461.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Brown, David; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. W-04-3-77; to the Court of Appeal, First Circuit, No. 2012 KW 1375.

Denied.


text:
    EAST BATON ROUGE PARISH SCHOOL BOARD v. Judy GREEN.
    No. 2012-C-2608.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re East Baton'Rouge Parish School Board; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Office of Workers’ Compensation Dist. 5, No. 05-008639; to the Court of Appeal, First Circuit, No. 2012 CA 0421.

Denied.


text:
    Diana LEWIS v. Trina D. DORSEY and Baton Rouge City Police.
    No. 2012-C-2609.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Lewis, Brian; Lewis, Diana;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 549,358; to the Court of Appeal, First Circuit, No. 2011-CA-2808.

Denied.


text:
    Jalil ABUSHANAB v. ST. CHARLES GAMING COMPANY, INC. d/b/a Isle of Capri.
    No. 2012-C-2614.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Abushanab, Jalil et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2007-6829; to the Court of Appeal, Third Circuit, No. 12-155.

Denied.


text:
    Linda Atkins GRAY v. James GRAY.
    No. 2012-C-2616.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Gray, James; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. B, No. 19121; to the Court of Appeal, First Circuit, No. 2011 CA 2360.

Denied.


text:
    Peggy JUNEAU v. FRANCISCAN MISSIONARIES OF OUR LADY HEALTH SYSTEM and Our Lady of the Lake Hospital.
    No. 2012-C-2619.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Juneau, Peggy; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 05, No. 05-08608; to the Court of Appeal, First Circuit, No. 2011 CA 2877.

Denied.


text:
    Frederick WALKER and Irma Walker v. Jack Patrick HARRIS and DeSalvo & Harris.
    No. 2012-C-2621.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re DeSalvo & Harris; Harris, Jack Patrick et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 536964; to the Court of Appeal, First Circuit, No. 2011 CA 0141R.

Denied.


text:
    EASTERN SOLUTIONS, INC. v. Naji AL-FOUZAN, et al.
    No. 2012-C-2623.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re AI-Fouzan, Naji; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. C-20101476; to the Court of Appeal, Third Circuit, No. CA 12-464.

Denied.


text:
    Jerry Lee BALDWIN v. The BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM, the University of Louisiana at Lafayette, Nelson Schexnayder, individually and in his Capacity as Director of Athletics for the University of Louisiana at Lafayette.
    No. 2012-CC-2624.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Board of Supervisors for the University of Louisiana System; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 509,900; to the Court of Appeal, First Circuit, No. 2012 CW 1484.

Denied.


text:
    Geraldine BILLUPS v. B.C. ENTERPRISE GROUP, INC., Louisiana Real Estate Inspection Incorporated, and Wells Fargo Bank, N.A.
    No. 2012-C-2625.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Billups, Geraldine; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2010-06213; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0281.

Denied.


text:
    ST. LANDRY PARISH GOVERNMENT v. Anthony RUBIN. Anthony Rubin v. CCMSI and St. Landry Parish Government.
    No. 2012-C-2633.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re St. Landry Parish Government;— Plaintiff; Applying For Writ of Certiorari and/or Review Office of Worker’s Compensation Dist. 04, No. 10-06105 C/W 10-05968; to the Court of Appeal, Third Circuit, Nos. 12-506,12-507.

Denied.


text:
    Ronald DUNN, Jr. v. LAKEWOOD QUARTERS RETIREMENT COMMUNITY.
    No. 2012-C-2641.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Lakewood Quarters Retirement Community; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Comp. District #2, Nos. 09-01540, 10-03120; to the Court of Appeal, Third Circuit, Nos. 12-548,12-549.

Denied.


text:
    Melanie GARDNER v. Mike CRAFT, et al., & the Stebbins Engineering and Manufacturing Company.
    No. 2012-C-2645.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Gardner, Melanie; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 70894; to the Court of Appeal, Second Circuit, No. 47,360-CA.

Denied.


text:
    Rickey WHITTINGTON, Jr. v. QBE SPECIALTY INSURANCE COMPANY, et al.
    No. 2012-C-2646.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re F & F Ashline, Inc.; Guin, Travis J.; QBE Specialty Insurance Company;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 238,123; to the Court of Appeal, Third Circuit, No. 12-409.

Denied.


text:
    Jalil ABUSHANAB v. ST. CHARLES GAMING COMPANY, INC. d/b/a Isle of Capri.
    No. 2012-C-2651.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re St. Charles Gaming Company, Inc. d/b/a Isle of Capri — Lake Charles; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2007-6829; to the Court of Appeal, Third Circuit, No. 12-155.

Denied.


text:
    STATE ex rel. Kerry J. CURINGTON v. STATE of Louisiana.
    No. 2012-KH-2070.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Curington, Kerry J.; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 03-8005; to the Court of Appeal, Fifth Circuit, No. 12-KH-441.

Denied.


author: STEWART, J.

text:
    AUDIO PLUS, INC., Plaintiff-Appellant v. Sidney Patrick LOMBARDINO d/b/a SPL Corporation, d/b/a Wild Orchid Cabaret, Defendants-Appellees.
    No. 47,488-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Jeffrey L. Little, Shreveport, LA, for Plaintiff-Appellant Audio Plus, Inc.
    Ronald J. Miciotto, Shreveport, LA, for Defendants-Appellees Sidney Patrick Lombardino, SPL Corporation and Wild Orchid Cabaret.
    Before STEWART, GASKINS and SEXTON (Pro Tempore), JJ.
   STEWART, J.

_JjAudio Plus, Inc., seeks review of the trial court’s involuntary dismissal of its action in contract against Sidney Patrick Lombardino, d/b/a SPL Corporation d/b/a Wild Orchid Cabaret. For the following reasons, the trial court’s judgment is affirmed.

FACTS

In December 2009, Audio Plus filed suit against Lombardino, alleging that he owed $5,543.54, plus interest and attorney fees, for services performed by Audio Plus and billed on open account. The services consisted of remodeling work done at the Wild Orchid Cabaret in Bossier City, Louisiana. Plaintiffs petition referenced an attached invoice indicating total work completed that, after credit and payments made, left the outstanding balance of $5,543.54.

On March 18, 2010, Lombardino filed an answer generally denying the allegations in plaintiffs petition, and further asserting compromise, lack of consideration, and work not completed in accordance with the agreement. Subsequently, on August 9, 2010, Lombardino amended his answer and added a reconventional demand against Audio Plus and against Komkrit Jim Chimpalee, an employee of Audio Plus, individually. Lombardino asserted that there was no open account agreement, but that the parties’ agreement was for installation of a sound, video and audio system, a television and other items in the Wild Orchid. According to Lombardino, Audio Plus and Chimpalee installed a 46" television, a 93" motorized screen, and a projector that were nonworking; they failed to finish the contract and left the job; and | 2Lombardino had to hire another contractor to finish the job for $6000 — the amount of Lombardino’s reconventional demand.

On December 28, 2010, Lombardino filed a second amended answer and reconven-tional demand making an additional allegation that Audio Plus and Chimpalee contracted to install a lighting system with materials, and that the lighting system was improperly installed. The new pleading also alleged that Audio Plus and Chimpa-lee had removed the 93" motorized screen and a nonworking projector, that they had never returned those items, and that they were liable for the value of the items. Furthermore, Lombardino alleged that Audio Plus and Chimpalee were liable for the amount Lombardino paid to have the lighting system installed properly.

Audio Plus and Chimpalee responded on March 7, 2011, with an answer denying the allegations of the reconventional demands, and with an exception of no cause of action on behalf of Chimpalee based upon the argument that, as a mandatary contracting on behalf of a principal, Chimpalee did not bind himself personally.

The matter came on for trial on March 11, 2011. On cross-examination, Lombar-dino he testified that by verbal contract he authorized Audio Plus to do work up to, but not exceeding $5000, and that he paid $5000 prior to receiving any bills from Audio Plus. He also testified that he paid $4000 to repair work done by Chimpalee.

Nannette Chimpalee, the wife of Jim Chimpalee and secretary/treasurer of Audio Plus, testified as to the accuracy of the amount allegedly owed by Lombardino. She indicated that she prepared the bill that was introduced into | ¡¡evidence on behalf of Audio Plus, and that the bill was based upon log records from the employees. She also indicated that the bill, dated September 2, 2009, had been given to Lombardino on that date, prior to his making payments on September 19 and 30, 2009. Additionally she testified that Lom-bardino had not complained about the products or work.

Jim Chimpalee also testified to the accuracy of the amount allegedly owed by Lombardino. He denied ever having a conversation with Lombardino about a limit being placed on the work done, but testified to a continuing course of business with Lombardino. With respect to the projector and screen mentioned in the re-conventional demand, Chimpalee indicated that he still possessed the items, and that Lombardino could have them. He also stated that Lombardino had not complained about anything not working or about the bill being too high. Additionally, he testified that, instead of billing on accounts monthly, Audio Plus had, at that time, billed when a job or project was completed.

After Jim Chimpalee’s testimony, Audio Plus rested its case, and Lombardino moved for an involuntary dismissal. Following a brief recess, the trial court granted the involuntary dismissal, concluding there was no open account because there were no “interval payments and regular interval billing to classify this as an open account....” The court also concluded that the plaintiff had failed to carry its burden by a preponderance of the evidence. In this regard, the court initially stated:

There is no concise determination to be made regarding the outstanding balance as alleged by Audio Plus insomuch that there is no bid on the items prior to or signed off on by the defendant setting forth the amount that’s owed, or the work that will be performed, a L contractual agreement as to the hourly rate, or the material that will be used and because of that, that forces the — the Court to have a credibility call as to the recollection of the plaintiffs as to what work was performed, what amounts were received, how many dollars were outstanding.

When the plaintiffs attorney then asked for clarification regarding not making a prima facie case, the court stated:

My conclusion is, is that it’s unable for the Court to determine that any amounts are owed based upon the — the fact that there’s no contract in place setting, or bid contract, that’s setting forth the — the work to be performed. There is a response, or affirmative defense, raised and testimony by the defendant that he agreed to $5,000 as a flat rate contract. There’s testimony by Mr. Chimpalee and Ms. Chimpalee on behalf of Audio Plus that that was not the agreement and that there was subsequent invoices that were dated July 15th of 2009 and June 2nd of 2009, setting out something totally different. There’s been no proof other than the testimony of Mr. testimony (sic) — I mean, Mr. Chimpalee that these items were placed on the premises of the — the defendant’s property along with the hourly work that was performed. And the Court’s having to make a credibility call based upon the testimony and recollection of the plaintiffs, as well as, the defendant and can find no, beyond a preponderance of the evidence, that — that there was not a — either a handshake agreement to do it for $5,000, or that there was a non-agreement for the sequential, or substantive work that was done, or alleged to be done by the plaintiffs in this matter.

After the involuntary dismissal of the plaintiffs case, the court took up the defendant’s reconventional demand. However, because the trial court ultimately rejected the reconventional demand for lack of sufficient evidence, and because the defendant has not appealed, no discussion is warranted in that regard.

DISCUSSION

Audio Plus presents three issues on appeal (verbatim):

1. Was this an open account and what constitutes prima facia (sic) evidence of an open account?
|s2. Were the Trial Court’s conclusions clearly wrong (manifestly erroneous)?
3. Was there a preponderance of evidence substantiating work performed on an open account, charges and credits?

We begin our analysis by noting that the trial court, in addition to finding no open account, found that Audio Plus failed to make a prima facie case that Lombardino owed money to Audio Plus. As discussed below, we find no manifest error in the trial court’s conclusion regarding failure of proof of a debt owed; thus, we pretermit discussion of the law regarding open accounts, other than to note that nothing peculiar to open account law would change the result in the absence of sufficient proof of the existence of a debt.

The trial court’s finding on proof, simply stated, was that conflicting evidence was presented through the testimony of the witnesses both as to the nature of the contract between the parties and the amount owed. In then making the required credibility call, the trial court found neither side more credible than the other; the trial court found neither side proved its case by a preponderance of the evidence.

A motion for involuntary dismissal at the close of the plaintiffs evidence is permissible after a bench trial when, based upon the facts and law, the plaintiff has failed to show a right to relief. La. C.C.P. art. 1672(B). When evaluating a motion for involuntary dismissal, the judge must consider all the evidence, without any special inferences in favor of the opponent of the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence. Barnes v. Barnes, 46,417 (La.App.2d Cir.6/22/11), 71 So.3d 1004. An involuntary dismissal under La. C.C.P. art. 1672(B) will not be reversed on appeal in the absence of manifest error; there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Atkins v. City of Shreveport, 45,665 (La.App.2d Cir. 9/22/10), 48 So.Bd 326. The trial court has great discretion in granting an involuntary dismissal. Brooks v. Minnieweather, 46,-900 (La.App.2d Cir.1/25/12), 86 So.3d 684; Barnes, supra, citing Chandler v. Chandler, 45,308 (La.App.2d Cir.5/19/10), 37 So.3d 569 and Smith v. Knight, 39,781 (La.App.2d Cir.6/29/05), 907 So.2d 831.

When there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Arabie v. CITGO Petroleum Corp., 2010-2605 (La.5/4/12), 89 So.3d 307; Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Considering the conflicting testimony of the witnesses in this case, and the great discretion to be afforded the credibility determinations of a trial court, we find no manifest error in the trial court’s decision to grant an involuntary dismissal of the plaintiffs case based upon a finding that no prima facie case was proved.

17Audio Plus also contends on appeal that Lombardino did not plead the affirmative defense of extinguishment, and that even if he did so plead, he failed to prove the defense. Our jurisprudence provides that even when an affirmative defense has not been pleaded by the defendant, if the plaintiff fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the pleadings are considered to have been enlarged to include the affirmative defense, and the court can act as though the affirmative defense was pleaded. DLJ of Louisiana No. 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979). Thus, even if we assume, arguendo, that Lombardino in the case at bar failed to properly plead the affirmative defense of extinguishment, despite specifically pleading the affirmative defenses of lack of consideration and work not completed in accordance with the agreement, we conclude that Audio Plus’s failure to object to Lombardino’s testimony regarding the nature of the contract and payments made thereon would enlarge the pleadings to include extinguishment.

Furthermore, the purpose of La. C.C.P. art. 1005, requiring affirmative defenses to be specifically pleaded, is to prevent surprise by giving the plaintiff fair notice of the nature of the defense, thereby preventing interjection of unexpected issues. Bank of Coushatta v. Evans, 313 So.2d 644 (La.App.2d Cir.1975). In Lom-bardino’s pretrial memorandum, he specifically alleged that the agreement between him and Audio Plus was not to exceed services rendered in the amount of $5,000. Considering this allegation in conjunction with Lombardino’s pleadings, we 18observe that Audio Plus, at least in large measure, was put on notice of the nature of Lombar-dino’s defenses. As for proof, we note that Lombardino testified about payment made and work done, and the trial court apparently credited Lombardino’s testimony at least to the extent of neutralizing the plaintiffs evidence regarding any debt owed.

Finally, Audio Plus requests, in the alternative, that if this Court finds neither a contract, nor an open account, we consider unjust enrichment of Lombardi-no. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. URCA 1-3. In this case, the issue of unjust enrichment was not submitted to the trial court, and we do not find that the interest of justice clearly requires consideration of that issue. Nevertheless, we note that this Court’s decision herein is not based upon findings concerning the existence or nonexistence of a contract or open account, but upon our finding of no manifest error in the trial court’s involuntary dismissal. That dismissal, in turn, was not based upon the lack of a contract of any kind between the parties, but upon the factual finding that Audio Plus had not presented sufficient proof that Lombardi-no owed any sum of money to Audio Plus. Unjust enrichment is a subsidiary remedy and is not available if the law provides another remedy. La. C.C. art. 2298. Audio Plus had a remedy in an action in contract; thus, the subsidiary remedy is not available. See Walters v. MedSouth Record Management, LLC, 2010-0353 (La.6/4/10), 38 So.3d 243.

^CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed at appellant’s cost.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Dan Eugene FOSTER, Appellant.
    No. 47,375-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Carey J. Ellis, III, for Appellant.
    Dan Eugene Foster, Pro se.
    J. Schuyler Marvin, District Attorney, Robert R. Smith, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

hThe defendant, Dan Eugene Foster, was charged by bill of information with driving while intoxicated (“DWI”), third offense, in violation of LSA-R.S. 14:98(D). The defendant pled guilty as charged and was sentenced to serve five years in prison at hard labor. For the following reasons, we affirm the defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw.

FACTS

The defendant’s guilty plea was made subject to a plea agreement with the state. In exchange for the defendant’s guilty plea, the state agreed not to upgrade the charge to DWI, fourth offense. The state also agreed to recommend a sentence of five years at hard labor, the maximum sentence for DWI, third offense.

On June 14, 2011, the defendant, who was represented by counsel, pled guilty as charged. On September 16, 2011, he was sentenced to the agreed-upon sentence of five years at hard labor. In addition, the trial court ordered the defendant to pay a fine of $2,000, or in default thereof, serve six months in jail to run concurrently with the five-year sentence. Also, the court ordered the defendant’s vehicle forfeited in accordance with the provisions of LSA-R.S. 14:98.

On appeal, the defendant’s appellate counsel has filed a motion to withdraw, together with an Anders brief, alleging that there are no nonfrivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history of the case and the agreement under which the defendant’s guilty plea was entered. Appellate counsel also verified that a copy of the motion to withdraw and his brief had been mailed to the defendant, in accordance with Anders, Jyles, Mouton and Benjamin, supra.

The record shows that the defendant was properly advised of his Boykin rights before he pled guilty. There were no errors patent found in the guilty plea. Additionally, pursuant to LSA-C.Cr.P. art. 881.2, the defendant is precluded from seeking review of his five-year sentence, which was imposed in conformity with the plea agreement set forth in the record.

ERRORS PATENT

In accordance with LSA-C.Cr.P. art. 920, this Court has conducted an error patent review of the appellate record. We have found two errors patent in the sentencing proceedings.

First, when a defendant has been convicted of DWI, third offense, one year of the sentence “shall be imposed without benefit of probation, parole, or suspension of sentence.” LSA-R.S. 14:98(D)(l)(a). In the instant case, the trial court failed to impose one year of the sentence without benefits. However, the court’s error will be automatically corrected pursuant to LSA-R.S. ISiSOI.I. 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, writ denied, 2003-1359 (La.12/12/03), 860 So.2d 1149.

Also, the penalty provisions for a DWI, third offense conviction are imprisonment up to five years and a fine of $2,000. LSA-R.S. 14:98(D)(l)(a). An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242.

Here, the record shows that the defendant was and is indigent. The trial court imposed the $2,000 fine, as prescribed by the statute, and also ordered that the defendant serve six months in jail if he failed to pay the fine; however, the six-month sentence was to be served concurrently with his five-year sentence. Because the sentence was ordered to run concurrently with the defendant’s five-year sentence, the failure to pay the fine does not impose a harsher punishment upon the defendant. Accordingly, we decline to vacate this portion of the defendant’s sentence.

LCONCLUSION

For the foregoing reasons, the appellate counsel’s motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . LSA-R.S. 15:301.1 provides, in pertinent part:
      A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

      C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Damian FINLEY, Appellant.
    No. 47,377-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Paula Corley Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

|, The defendant, Damian Finley, pled guilty to one count of armed robbery. Pursuant to the terms of his plea agreement, he was sentenced to serve 10 years at hard labor without parole, probation or suspension of sentence. The defendant now appeals. His appellate counsel filed a motion to withdraw, together with an An-ders/Benjamin brief. The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

FACTS

The defendant was charged by bill of information with one count of armed robbery. On October 10, 2011, the defendant appeared before the trial court to plead guilty as charged. In exchange for his guilty plea, the state agreed to a recommended sentence of 10 years at hard labor, without the benefit of parole, probation or suspension of sentence. According to the facts recited by the state during the defendant’s plea hearing, on March 19, 2011, the defendant and another person, while armed with a gun, took several items from Latina Bernard at the Circle K store located on Shreveport Road in Minden, Louisiana. Following the defendant’s advisement of his Boykin rights, the trial court accepted his guilty plea. Thereafter, the defendant waived sentencing delays and was sentenced to serve 10 years at hard labor, without the benefit of parole, probation or suspension of sentence. Two other charges were nolle prossed.

1 pjThis appeal followed, and the defendant’s appellate counsel filed an Anders brief, seeking to withdraw, which alleges that he could find no non-frivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, supra. The brief outlines the procedural history of the case and the facts of the ease set forth by the state, as previously noted. The brief also contains “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. The state filed a letter with this court agreeing that there are no nonfrivolous issues to raise on appeal.

Defense counsel also verified that copies of the motion to withdraw and the original brief were mailed to the defendant, in accordance with the Anders, Jyles, Mouton, and Benjamin cases. The defendant never requested the record and did not file a brief.

DISCUSSION

This Court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. Furthermore, the defendant is precluded from seeking review of his sentence, the minimum sentence allowable under La. R.S. 14:64, because it was imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2.

^CONCLUSION

The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990).

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


text:
    STATE of Louisiana, Plaintiff-Applicant v. Jeffrey Antonio BROWN, Defendant-Respondent.
    No. 47,247-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      M. Randall Donald, West Monroe, LA, for Defendant/Respondent.
    Jerry L. Jones, District Attorney, Carl D. Walker, Assistant District Attorney, for PlaintiffiApplicant.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

liThe defendant, Jeffrey Brown, was charged by amended bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1; theft of a firearm, a violation of LSA-R.S. 14:67.15; theft (of a law enforcement officer’s badge), a violation of LSA-R.S. 14:67; and possession of marijuana, a violation of LSA-R.S. 40:966. The defendant filed a pretrial motion to suppress, which was granted by the trial court. We granted the state’s writ of review to determine the correctness of the trial court’s ruling. For the following reasons, we affirm the trial court’s ruling, recall the writ and remand this matter for further proceedings.

FACTS

On April 24, 2010, the Monroe Police Department received an anonymous telephone call from a person who reported that a black male, sitting in a white Lincoln at 118 Martinez Drive, was attempting to sell a handgun and police badge. The police department dispatched Officer Kwasic Heckard to investigate the call; Corporal Henry Foy, Officer Jared Desa-dier and Sergeant Roger Jackson also responded to the call as “backup.” The officers arrived at the scene in four separate marked police vehicles and saw a black male, later identified as the defendant, sitting in the driver’s seat of a white Lincoln. The officers parked their vehicles behind and beside the Lincoln, blocking all possible means of escape. The officers then approached the defendant, with weapons drawn, and ordered him to exit the vehicle. Once the defendant complied, he was handcuffed and questioned; he admitted to having a handgun ahd badge in the vehicle. The officers retrieved the gun, badge and “two suspected marijuana blunts 12that were partially smoked” from the vehicle. The officers conducted a criminal background check and learned that the defendant was a convicted felon.

The defendant was arrested and charged by bill of information with possession of a firearm by a convicted felon and possession of marijuana. On August 29, 2011, the defendant filed a motion to suppress, alleging that he “was exercising his right to be left alone when he was approached, detained, questioned and subsequently arrested[.]” He argued that the stop, subsequent arrest, search and seizure were conducted in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. He also argued that his statements, as well as the gun, badge and marijuana were obtained in violation of his constitutional rights. The motion was not considered on the basis that it was untimely.

On August 31, 2011, the state filed an amended bill of information, charging the defendant with possession of a firearm by a convicted felon, possession of marijuana, theft of a firearm and theft of a sheriffs deputy badge. On October 5, 2011, the defendant filed another motion to suppress re-urging the arguments raised in the first motion; a hearing was held the following day.

Officer Heckard and Cpl. Foy testified at the hearing on the motion to suppress. Officer Heckard testified as follows: on April 24, 2010, the police department received an anonymous tip that a black male was sitting in a white Lincoln vehicle at 118 Martinez Drive, attempting to sell a police badge and pistol; Martinez Drive is considered a high crime area, known for | ¡¡“drugs, shot fired calls, shootings, things of that nature”; the anonymous caller provided no description of the individual, other than he was a black male; when he and the other officers arrived at the location, he observed a black male sitting in the driver’s side of a white Lincoln with the door open; for “officer safety reasons,” he and the other officers approached the car ■with “long guns” (AR-15, shotgun and .40 caliber Glock) pointed in the defendant’s direction; the defendant was given “direct verbal commands to show his hands, to turn around, then to place his hands behind his back”; the defendant “was very compliant” and did not try to resist; the guns were withdrawn when the defendant complied; the defendant was “patted down” for officer safety; the defendant was handcuffed and advised of his Miranda rights; the defendant was questioned about the gun and the badge; the defendant admitted that the items were in the defendant’s vehicle; the officers retrieved the gun and badge from the vehicle; the defendant was placed in a patrol unit and transported to the Ouachita Correctional Center to be booked.

On cross-examination, Officer Heckard testified as follows: the anonymous caller did not provide any specific information regarding either the gun or the badge; he did not know anything about the defendant prior to the night in question; when he arrived at the scene, he did not know whether the gun was stolen or whether the badge was real; he had not received any reports of any threats with the gun, flashing of a gun, or shots fired; when he arrived, he did not have reasonable suspicion to believe that any drug transactions were taking place; the only information he had been given was |4that someone in a white Lincoln was attempting the sell a gun and badge.

Officer Heckard also testified that Monroe police officers wear microphones and recorders; the interaction between the defendant and the officers, including the reading of the Miranda rights, should have been recorded. During his testimony on redirect, Officer Heckard stated that he remembered activating the recorder and it began recording; however, at some point, he noticed that the recorder was “on pause.” He “un-paused it and continued to record from that point.”

On recross examination, Officer Heckard testified that the officers were not attempting to intimidate the defendant when they approached him with their guns drawn. He stated that the “show of force” was necessary for “officer safety.”

The court then questioned Officer Heck-ard. In response to the court’s questions, the officer admitted that the officers arrived at the scene in four separate marked police units and stopped behind the defendant’s vehicle, eliminating any possible means of escape. He also admitted that all four officers exited their vehicles with their weapons (armed with ammunition) “pointed in the direction of the defendant.” Officer Heckard admitted that the defendant did not make “any type of furtive moves or gestures that would indicate ... that he was attempting to hide or shove something into the console area or underneath the seats[.]” He reiterated that the defendant was “extremely cooperative” with the officers.

Cpl. Foy testified at the hearing as follows: on April 24, 2010, he responded to a CrimeStoppers tip that a black male sitting in a white | ^Lincoln at 118 Martinez Drive was attempting to sell a police badge and handgun; the police department could not ignore the tip because that area is considered a high crime area and a gun was involved; when he arrived at the location, he immediately saw a white Lincoln Town Car and a black male was sitting behind the wheel of the car; he approached the vehicle with his weapon (a .40 caliber Glock) drawn; he identified himself to the defendant, ordered him to get out of the vehicle, handcuffed him for officer safety, and advised him of his Miranda rights; he asked the defendant whether he had a gun and a badge in his possession; the defendant responded, “Yes”; the defendant gave the officers permission to search his vehicle; he saw the gun on the floorboard, within the defendant’s wingspan as he approached the vehicle; he retrieved the gun from the floorboard behind the driver’s seat.

On cross-examination, Cpl. Foy testified that the anonymous caller had stated only that “someone” was trying to sell a gun and a badge; the caller did not provide any information regarding any shots fired, brandishing of a gun, or any threats with the gun. Also, the caller did not provide any information about the badge. Cpl. Foy further testified that the area around Martinez Drive is considered a high crime area, where drug transactions are frequently conducted. He admitted, however, that he did not observe the defendant or anyone else conducting any drug transactions when he arrived on the scene. Cpl. Foy testified that the defendant was cooperative and followed the officers’ instructions. He also stated that the defendant was not free to leave when the officers arrived. Cpl. Foy admitted that he did not know whether the defendant was a convicted felon |fiwhen the officers arrived on the scene and placed the defendant under arrest. He also admitted that it is not illegal for a person who is not a convicted felon to sell a handgun. Like Officer Heckard, Cpl. Foy was equipped with a recording device that evening and testified that the recorder should have been activated. However, he stated, “[T]hey tried to find my recording and couldn’t.”

The court then questioned Cpl. Foy regarding the officers’ basis for detaining the defendant. The colloquy was as follows:

[COURT]: [A]t the point that you all arrived and you saw the defendant in the doorway of the vehicle[;] at that point the only corroboration of the informant’s tip was that he was a black male inside a white Lincoln, correct?
[CPL. FOY]: Yes, sir.
[COURT]: You noticed no activity in or around the vehicle that ... you could clearly discern as activity relating to any type of [sale] or attempted [sale] of this badge or gun that was subsequently retrieved from the vehicle did you? As you arrived on the scene?
⅜ * ⅝
[CPL. FOY]: No, as I arrived on the scene, no, sir.
[COURT]: Did y’all see anybody in and around the vehicle attempting to discuss with him or talk with the defendant about anything that would lead you to believe as an experienced officer that they were trying to purchase this gun or this badge from the defendant?
[CPL. FOY]: No, sir, I didn’t see that.
[COURT]: Okay. My concern is what was the basis for you all handcuffing him and basically taking him into custody before you actually retrieved the weapon and the badge from the — the vehicle[.] Prior to that time, tell me what facts did you use to place him under — place him in custody in those handcuffs and take him back to Officer Heckard’s vehicle? What facts did you use to do that?
|7[CPL. FOY]: That we had [a] substantiated description of the vehicle, a suspect[;] we detained him to make sure he was away from the weapon, [and] he couldn’t reach for anything while we continued our investigation.
[COURT]: All right. But prior to that time, you — neither you nor any of your fellow officers observed any type of criminal activity on the part of the defendant at the time that you all arrived at the scene, correct?
[CPL. FOY]: Correct.
[COURT]: All right. And — and he did not commit any offense in your presence did he, other than, I mean, other than being in possession of this after the fact?
[CPL. FOY]: No, sir.
[COURT]: Was he placed in Officer Heckard’s vehicle before you actually went into the vehicle and retrieved the gun and the badge or afterwards?
[CPL. FOY]: I believe he was standing at the front, I think Officer Heckard had him at the front of his vehicle at that time. I don’t halfway recall exactly because, you know, I handed him off to Officer Heckard. I know he walked him back to his vehicle.
[COURT]: You would agree that while he was in those handcuffs he was not free to leave at that point was he?
[CPL. FOY]: No, he wasn’t.

After the state rested, defense counsel moved to introduce into evidence the audiotape of Officer Heckard’s microphone recording. The defense argued that Officer Heckard had testified that he read the defendant his Miranda rights, and whether the defendant’s statements were free and voluntary was an issue. The recording was admitted into evidence. However, the audiotape did not capture the police officers reciting the | ¡Miranda warnings.

Following the introduction of the recording, the state called Officer Heckard and Officer Jared Desadier as rebuttal witnesses. Officer Heckard testified that he read the defendant his Miranda rights, despite the fact that the recording device did not capture him reading the rights. Officer Desadier testified that he heard both Officer Foy and Officer Heckard reading the defendant his Miranda rights.

On December 7, 2011, the trial court granted the defendant’s motion to suppress the evidence. The court concluded that “the stop, detention, and arrest of the defendant was improper and unconstitutional[J” Specifically, the court found that the anonymous tip, together with the corroboration by the police officers, was insufficient to provide the officers with reasonable suspicion to justify the investigatory detention and arrest of the defendant. The court stated:

[I]t was true that the officers were able to corroborate certain aspects of the anonymous tip, including the color and type of car the defendant was driving and the location of the described vehicle. The tip, however, contained no predictive information from which the officers could reasonably determine that the informant had ‘inside information’ or a ‘special familiarity’ with defendant’s affairs. In particular, the tip failed to predict the specific time period in which defendant would be engaged in illegal activity. It simply stated that the defendant was offering to sell a gun and a badge from a white Lincoln parked at a certain location. Since the tip did not provide sufficiently particular information concerning defendant’s future actions, an important basis for forming reasonable suspicion was absent. The officers, therefore, lacked reasonable grounds to believe that the informant possessed reliable information about defendant’s alleged illegal activities.

ItiThe court also found that the evidence failed to establish that the police officers advised the defendant of his rights pursuant to Miranda. The court noted that there was no testimony in the record to prove which Miranda rights/warnings were given to the defendant, or whether the defendant understood his rights, if the warnings were, in fact, given.

The state filed a writ application, which this court granted by order dated March 1, 2012.

DISCUSSION

The state contends the police officers had reasonable suspicion to approach the defendant, with weapons drawn, because the anonymous caller had informed law enforcement that the defendant was in possession of a weapon. The state concedes that the information provided by the anonymous caller was “skimpy”; however, the state argues that the tip was corroborated when the officers arrived and observed the defendant sitting in a white Lincoln in an area known for drug transactions and violent crimes. According to the state, once the officers corroborated the information provided by the anonymous caller, they had reasonable suspicion to approach the defendant.

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. U.S.C.A. Const. Amend. 4. See also, LSA-Const. Art. I, § 5. Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court. Id.

1inThe right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by both state and federal law. See, LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Boyle, 34,686 (La.App.2d Cir.9/17/01), 793 So.2d 1281. The standard required for an investigative detention is the “reasonable suspicion of criminal activity” standard articulated in Terry v. Ohio, supra. State v. Boyle, supra; State v. McVan, 32,434 (La.App.2d Cir.3/11/99), 744 So.2d 641.

Because reasonable suspicion is not readily defined, the United States Supreme Court has held that courts reviewing the legality of an investigatory stop must consider the totality of the circumstances of each case to see whether the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry v. Ohio, supra; State v. Morgan, 2009-2352 (La.3/15/11), 59 So.3d 403. When applying the totality of the circumstances test, the Supreme Court considers several factors particularly relevant, including the location and time of the stop, as well as the defendant’s actions preceding the stop. Although an individual’s presence in a “high-crime area,” alone, is insufficient to support a reasonable suspicion of criminal activity, the Supreme Court has held that a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); State v. Morgan, supra.

An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Anonymous tips are generally less reliable than tips from known informants and can only form the basis for reasonable suspicion only if accompanied by specific indicia of reliability, for example the correct forecast of a subject’s “not easily predicted” movements. Id., citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Additionally, anonymous tips provide the lowest indicia of credibility and do not, in themselves, constitute probable cause for either a search warrant or an arrest warrant to issue. Alabama v. White, supra. This is because agents or police receiving the tip do not know the identity of the informant or his or her relationship to the accused that would indicate the information is credible. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263. An anonymous tip must contain predictive information about the suspect’s future criminal behavior and such behavior must be corroborated in order to establish probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Alabama v. White, supra. Neither reasonable suspicion nor probable cause exists by corroborating merely descriptive, non-predictive information. Florida v. J.L., supra.

Probable cause for an arrest exists when facts and circumstances known to the officer and of which he has reasonably trustworthy | ^information are sufficient to justify a man of ordinary caution in the belief that the person to be arrested has committed a crime. State v. Wilson, 467 So.2d 503 (La.1985); State v. White, 543 So.2d 124 (La.App. 2d Cir.1989).

In Florida v. J.L,, supra, the police department received an anonymous tip that a young black male, wearing a plaid shirt, was standing at a particular bus stop carrying a gun. Two police officers were dispatched to the location, and upon their arrival, they encountered three black males standing at the bus stop. One of the males, the defendant, was wearing a plaid shirt. The officers did not see a gun and the defendant did not make any threatening movements. The officers had no reason, other than the information provided by the anonymous tip, to suspect the defendant of any illegal activity. One of the officers approached the defendant, ordered him to put his hands up, frisked him and seized a gun from his pocket. The Florida Supreme Court held that the search was invalid under the Fourth Amendment to the United States Constitution. The United States Supreme Court affirmed, stating:

[T]he officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own[,] but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity[.]’
The tip in the instant case lacked the moderate indicia of reliability present in [Alabama v.] White [v. Alabama] and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore, left the police without means to test the informant’s knowledge or credibility. That the allegation 11sabout the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.

529 U.S. at 270-71, 120 S.Ct. 1375.

In the instant case, police department received an anonymous tip that a black male was sitting in a white Lincoln car at 118 Martinez Drive attempting to sell a gun and a badge. The anonymous caller, whose identity was then, and remains, unknown, did not report that any crime was being committed, nor was the caller able to predict any future criminal activity. In response to the tip, the police officers immediately went to the specified location and found a black male sitting in a white Lincoln car. Notwithstanding the fact that none of the officers saw the gun or observed the defendant engaging in any criminal activity, the four officers approached the defendant with their weapons drawn and pointed in his direction. The officers ordered the defendant out of the vehicle, handcuffed him and placed him in a patrol unit. The defendant was clearly not free to leave, and, therefore, he was under arrest.

At the time the officers approached the defendant, they were able to corroborate the anonymous caller’s descriptive identification of “a black male, sitting in a white Lincoln” and nothing more. The anonymous call luprovided no predictive information, and left the police officers without means to test the informant’s knowledge or credibility. All the officers observed was a black male sitting in a car; apart from the limited information provided by the unknown caller, the officers had no reason to suspect the defendant of any illegal conduct. Four police officers, in four separate marked police vehicles, virtually surrounded the defendant’s vehicle, making it impossible for him to leave. None of the officers saw a weapon in the defendant’s possession, and the defendant made no threatening or unusual movements which might indicate that the officers were at risk. There was no information provided by the caller and no evidence at the scene that was indicative of any criminal behavior or even that criminal activity was afoot. As the Supreme Court stated in Florida v. J.L., “That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisk, had a reasonable basis for suspecting [the defendant] of engaging in unlawful conductf.]”

Furthermore, at the time of the incident, the officers had no knowledge that the defendant was a convicted felon; they had no information which might indicate that he did not have a right to possess a gun. Attempting to sell a gun by a private citizen, who has a right to possess a gun, to another person is not illegal. Additionally, at the time of the defendant’s arrest, there was no statute in effect which criminalized the mere possession or sale of a badge. Accordingly, we find that the trial court did not err in concluding that the anonymous tip did not justify the |1sstop and detention of the defendant. This assignment lacks merit.

The state also contends the trial court erred in suppressing the defendant’s statements to the police officers. The state argues that the defendant did not move to suppress his statements to the officers; therefore, the court’s ruling was erroneous.

We note that, contrary to the state’s contention, the defendant did, in fact, move to suppress his statements to the police officers. Specifically, the defendant’s motion to suppress provided:

NOW INTO COURT ... comes JEFFREY BROWN, Defendant herein, for the sole purpose of moving this honorable court to suppress the evidence sought to be used against him in connection with this matter based on the following grounds and for the following reasons, to-wit:
II. The stop of your mover and his subsequent arrest was in violation of your mover’s right[s] ... in the following particulars, among others, to be proven at the trial of the motion, to-wit:
* ⅜ *
F) That any statements made by your mover or physical evidence or contraband seized were the result of an unlawful arrest, detention and custody and any physical evidence or contraband seized as a result of such unlawful arrest, detention and custody should be suppressed and excluded.
* * *
III. That in connection with and as a result of the unlawful and unconstitutional invasion of the rights of JEFFREY BROWN, the aforesaid police authority obtained the following, to-wit:
Statements and physical evidence, in-eluding but not limited to a firearm and sheriffs badge and alleged controlled dangerous substances.
11fiIV. That the detention, handcuffing and arrest of your mover was illegal, unlawful and unconstitutional and any evidence obtained as a result thereof!,] including!,] but not limited to[,] statements, test results, physical evidence, alleged contraband and any other items or things should and ought to be suppressed!.]

(Emphasis added).

Additionally, at issue in this case is an illegal arrest prior to the defendant’s statements. Although the defendant’s statements were allegedly preceded by Miranda warnings, the statements were made after the defendant’s vehicle was surrounded by four police vehicles and the defendant was approached by four police officers, all of whom had their “long guns” drawn and pointed in the defendant’s direction. Officer Heckard and Cpl. Foy testified that the defendant was not free to leave when the officers’ guns were pointed at him and when he was handcuffed. Thus, the issue becomes whether the illegality of the arrest tainted the defendant’s statements and consent to search the vehicle.

In State v. Zielman, 384 So.2d 359 (La.1980), the defendants stopped their vehicle at a rural store which had been burglarized in the past; when they discovered that the store was closed, they went down the road to another store. While the defendants were buying gasoline, they were surrounded by police officers who told them that they were being detained and were not free to go. The detention led to the discovery of marijuana on one defendant and a large quantity of marijuana in the vehicle. The defendants filed a motion to suppress evidence and their statements. The Louisiana Supreme Court held that the police had no probable cause for 117what constituted an arrest, and that the illegality of the arrest so tainted the consent to search that the suppression of the physical evidence and the defendant’s statements was required. The court stated that after an illegal detention, a consent to search, even if voluntary, is valid “only when made under circumstances which show no exploitation of the illegality.” Zielman, supra, citing State v. Mitchell, 360 So.2d 189, 191 (La.1978). The court noted the importance of such factors as the temporal proximity between the arrest and the consent, the presence of any intervening circumstances, the purpose and flagrancy of official misconduct, and whether the accused was informed that he need not comply with a request to search. The court further stated:

[T]he consent [to search the vehicle] was inextricably linked to the initial illegal arrest. The consent occurred at the scene of the arrest shortly after the arrest took place. The defendants were not informed of their right to refuse consent. The record discloses no intervening circumstances between the arrest and the consent. The officers’ actions amounted to a clear violation of the right to be left alone and to be free from unwarranted police interference. The officers undertook to restrain the defendants and to question them while under restraint for no better reason than that there allegedly had been, at some unknown time in the past, burglaries in the area. In light of the factors just reviewed, the consent to search must be considered to have been obtained as a result of the exploitation of the original illegal arrest. Since the warrantless search of the defendants’ van is not supported by any grounds apart from that invalid consent, the evidence obtained through that search should have been suppressed by the trial court.

Id. at 863.

In the instant case, we find that the defendant’s consent to search his car was inextricably intertwined with the illegal arrest. The defendant |18consented to the search of his vehicle and admitted that he had a gun and badge in the vehicle. However, the statements and the consent to search were given almost immediately after four police officers blocked his vehicle, approached him with their guns drawn and placed him in handcuffs. The officers testified that the defendant was not free to leave. Like the Zielman court, we find that the illegality of the defendant’s arrest so tainted his consent to search the vehicle that the suppression of the defendant’s statements to the officers, as well as the evidence seized from the vehicle, is required. Given these circumstances, we find that the trial court did not err in suppressing the defendant’s statements made immediately after the illegal arrest. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s grant of the defendant’s motion to suppress the statements and physical evidence obtained. We hereby recall the writ application previously granted by this court and remand this matter for further proceedings.

WRIT RECALLED; JUDGMENT AFFIRMED; REMANDED.

      . A copy of the recording was not included with this record.

      . In 2011, the legislature enacted LSA-R.S. 14:112.4, which made the unauthorized possession or distribution of a peace officer's badge a misdemeanor offense.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Mark Lewis SMITH, Appellant.
    No. 47,285-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, William J. Edwards, Sarah S. Midboe, J. Aaron Crawford, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

|, Defendant, Mark Lewis Smith, was convicted by a jury of two counts of armed robbery and one count of attempted armed robbery. He was subsequently adjudicated a third felony offender and sentenced to 66 years’ imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on each armed robbery count and to 30 years at hard labor without the benefit of probation or suspension of sentence on the attempted armed robbery conviction, with all three sentences to run concurrently. This was the mandatory minimum sentence. Defendant has appealed his convictions and sentences. We affirm.

Discussion

According to defendant, the evidence was insufficient to support the two armed robbery convictions; he does not question the attempted armed robbery conviction. Defendant points out that the three victims testified that the two assailants left the scene without taking any of the victims’ property. Defendant argues that his armed robbery convictions should be reversed and asks that this court enter convictions for the lesser included offense of attempted armed robbery and remand for sentencing.

The two assailants were defendant, Mark Lewis Smith, and a co-defendant, Michael Jerome Taylor. They were initially charged by bill of information filed with three counts of armed robbery committed on July 29, 2009. The bill named Christopher “Shawn” Masters, Michael “Bryan” Smithpeter, and Jonathan Miller as the three victims of the armed robberies. Pri- or to trial, a new bill of information was filed deleting Michael Jerome Taylor as a co-defendant. By unanimous verdicts, the jury found defendant | ^guilty of armed robbery of Smithpeter and Masters and guilty of attempted armed robbery of Miller.

At trial, all three victims testified to the events which occurred in the early morning hours of July 29, 2009, outside Central Station, a downtown Shreveport nightclub located in an old train station, where Jonathan Miller worked as a bartender/shift supervisor. Miller was responsible for closing the nightclub on that particular morning, a responsibility which includes completing paperwork, setting the alarm, locking the doors, and making sure everyone has left the parking lot. Two of Miller’s friends, Bryan Smithpeter and Shawn Masters, stayed with him as he was closing up and walked out of the nightclub just ahead of Miller. As they exited the building at approximately 2:45 a.m., Miller noticed two men standing in the parking lot under a train viaduct which sits over the nightclub parking area. The three started to walk to their vehicles which were parked adjacent to the door they had just exited.

According to Miller, as he got to his truck, he was approached by a white male, whom he identified at trial as defendant. The man asked Miller for a cigarette. Miller stated that he did not have any cigarettes. Defendant then stated, “Hey, never mind,” at which time Miller turned back towards defendant who was pointing a chrome .38 caliber revolver at him. Defendant then ordered Miller and his friends to the other side of Smithpeter’s vehicle where they were out of view of the nightclub’s surveillance cameras. Once there, defendant ordered them to empty their pockets. Defendant’s accomplice, ultimately determined to be Michael | .¡Taylor, started to pat down the victims. Miller described Taylor as a thin black male with white discoloration of the skin on his neck and hands. Miller indicated that he did not have the opportunity to empty his pockets because he was in the process of being patted down by Taylor. During this time, defendant kept the gun trained on all three victims as he demanded their cell phones, IDs and money. When asked why he wanted their IDs, defendant told the victims that if they called the police he would use the IDs to find and kill them.

Finding little money on their victims, Taylor told defendant that they should just leave but defendant insisted that they take the victims’ phones. Ultimately, Miller testified that defendant and Taylor took off without taking anything from them. Miller testified that Masters got in his car and left while Smithpeter called 911. When law enforcement arrived, Miller and Smithpeter told one of the responding officers what had happened and provided descriptions of their assailants.

Shawn Masters’ testimony of the events of that evening was consistent with Miller’s with a few exceptions. Masters said that defendant ordered them to kneel on the ground, but his testimony does not indicate whether the three men complied with that command. The victims were then ordered to take everything out of their pockets and put the things on the ground. Masters said that he took out his wallet, cell phone, and approximately 50 cents and laid them on the ground. Asked whether “[a]t this point” either of the assailants picked up the items, Masters answered, “no.” When the two men left, Masters picked up his items. Masters stated |4that he was scared and that when Miller told him to go ahead and leave, he drove off without waiting for the police to arrive. Masters had no recollection of whether verbal threats were made or whether he was patted down by the black assailant.

Bryan Smithpeter’s testimony also largely tracked that of Masters and Miller with the exception that Smithpeter testified that after the three men put their property on the ground, the black assailant picked up the victims’ wallets and went through them looking for cash. Smithpeter testified that the black male took his $2.00. Subsequently on cross-examination, however, Smithpeter testified that nothing “was taken from” him and that all of his “items were left.” In fact, the black robber gave him his $2.00 back and told him, “man, I don’t need your two dollars.” Smithpeter stated that during the robbery defendant was waving the gun around in a threatening manner and was making verbal threats about killing the victims if they went to the police.

During their testimony, all three victims made unequivocal in-court identifications of defendant as the white assailant who wielded the handgun during the robbery. Their testimony varied slightly as to the verbal threats made during the incident, but all concurred that the handgun was being waved in their faces as they were ordered to turn over their money, mobile phones and IDs; however, all three said that the assailants did not leave with any of their property.

Detective Jack Miller of the Shreveport Police Department explained his investigation and how he first developed Michael Taylor as a suspect in |sthe robbery, how Miller and Smithpeter had each picked Taylor out of a photographic lineup as the black assailant, and how the subsequent investigation of Taylor led officers to consider defendant as a suspect. Detective Miller testified that once officers had identified defendant as a suspect, they prepared a photo line-up and called Miller to have him look at it. During the call, Miller indicated that he wanted the detective to show the line-up to Masters as well, which Det. Miller testified, was the first time he became aware that there was a third victim. Detective Miller showed the line-up to Miller and Masters separately and both identified defendant as the white assailant on the night of the robbery.

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; cert. denied, - U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

The elements of armed robbery are: (1) a taking; (2) of anything of .value; (3) from the person or in the immediate control of another; (4) by the use of force or intimidation; (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Carter, 98-24 (La.App.5th Cir.05/27/98), 712 So.2d 701, writ denied, 98-1767 (La.11/06/98), 727 So.2d 444.

The only issue in the case sub judice is whether there was a “taking of anything of value.” As it regards armed robbery, the Louisiana Supreme Court has defined a “taking” as “the slightest asportation” of anything of value. State v. Neal, 275 So.2d 765 (La.1973); State v. Cittadino, 628 So.2d 251 (La.App. 5th Cir.1993); State v. Conrad, 620 So.2d 366 (La.App. 5th Cir.1993), writ denied, 94-3076 (La.04/07/95), 652 So.2d 1345. Furthermore, in discussing the concept of “taking” in the context of theft, the Louisiana Supreme Court held in State v. Victor, 368 So.2d 711 (La.1979), that a “taking” includes an intent to usurp or negate the owner’s dominion. In State v. Victor, the court determined that the factual issue of whether there is a taking for purposes of theft is “whether the offender exerts control over the object adverse to or usurpato-ry of the owner’s dominion.” Id. at 714. “Anything of value” must be given the broadest possible construction, including any conceivable thing of the slightest value. La. R.S. 14:2(2).

In State v. Draughn, 05-1825 (La.01/17/07), 950 So.2d 583, 593-594, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), |7a first degree murder case, the defendant claimed that there was no evidence that a robbery occurred and that the evidence did not distinguish his case from others where the murder was committed as part of a personal grudge or vendetta, the court stated:

The defense argues that there was insufficient evidence that something of value was taken from Ms. White, so that the underlying felony of robbery was not proved beyond a reasonable doubt. The defense points to testimony of Cornell White, the victim’s son, who admitted that his mother could have spent the $20 that he knew she had with her when he last saw her. Mr. White also testified that there were items of value undisturbed in the house.
As this court held in State v. Neal, 275 So.2d 765, 770 (La.1973), whether or not anything of value was actually taken by the accused in an armed robbery context is a question of fact for the jury to weigh and evaluate in their consideration of the verdict. In Neal, an armed robber and his accomplice entered a gun shop and accosted the owner. The armed robber demanded the owner’s wallet. When the owner handed over his wallet with one hand, he brought out a gun with the other hand and fired. The robber dropped the wallet and started to run away. The owner admitted on cross-examination that nothing was ultimately taken from his person or his shop. In affirming a conviction for armed robbery, this court held “that the slightest asportation of anything of value ... the slightest deprivation for the slightest period of time ... the slightest segregation of the property moved the slightest distance is sufficient to satisfy the element of a theft, which is part of the crime charged.” Neal, 275 So.2d at 770. The court found that the jury, in weighing and evaluating the testimony, “chose to believe that indeed the robber did have, at some time if only momentarily, [the owner’s] wallet in hand.” Id.
Moreover, the murder of Ms. White allowed the perpetrator the leisure to move around her house, closing curtains for privacy, and possessing and assessing all of Ms. White’s possessions, not just her wallet and checkbook. Undoubtedly, the perpetrator handled the contents of Ms. White’s purse, whether there was any money in the purse to steal or not. Whether the perpetrator ultimately took anything of value belonging to Ms. White out of the house is irrelevant in this context. See Neal, 275 So.2d at 770. A rational juror could have found proven beyond a reasonable doubt that Ms. White was stabbed with a knife until she sustained fatal wounds so Isthat her assailant could possess and search through her house for items of value.

As noted above, Bryan Smithpeter testified that the black assailant went through the victims’ wallets that had been placed on the ground in front of them and that he had taken Smithpeter’s $2.00. He was acting as directed by defendant while defendant kept the victims at gunpoint. La. R.S. 14:24 provides that all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

While defendant has characterized the victims’ in-court statements as inconsistent with those given to police during the investigation, the record does not support this contention. While all of the victims’ statements were to the effect that nothing was taken from the scene by the assailants, these statements do not absolve defendant of the crime of armed robbery, nor are they inconsistent with Smithpeter’s testimony that the black assailant temporarily grabbed his money and the victims’ wallets.

As stated by the supreme court in State v. Neal, supra, 275 So.2d at 770, “the slightest asportation of anything of value ... the slightest deprivation for the slightest period of time ... the slightest segregation of the property moved the slightest distance is sufficient to satisfy the element of a theft, which is part of the crime charged.” (Emphasis added). A rational juror, in weighing and evaluating the testimony, could have reasonably found proven beyond a reasonable doubt a taking of control of the victims’ property. Jurors were allowed to use their common sense and Inexperience to conclude that such a segregation of property occurred. A reading of the evidence in the light most favorable to the prosecution supports the conclusion that defendant took, however briefly, something of value from both Smithpeter and Masters by the use of force or intimidation while armed with a dangerous weapon. La. R.S. 14:64. While the taking was of a thing of minimal value and for only the briefest amount of time (whether in holding the money or searching the wallets), all of the elements necessary for an armed robbery were met. The nature of defendant’s conduct was not changed because he ultimately decided he did not want what little the victims had.

Moreover, this view of the evidence best explains the verdicts reached by the jury. As noted above, Miller was the only one of the three victims who did not empty his pockets or place anything onto the ground. Both Smithpeter and Masters testified that they had placed their wallets on the ground in front of them. That testimony, combined with Smithpeter’s testimony that the black assailant searched the wallets in front of them, would explain the jury’s verdict that both Smithpeter and Masters had been the victims of armed robberies, while Miller was only the victim of an attempted armed robbery.

The inquiry seems to be whether the victim loses and the defendant gains control of the thing of value, an explanation akin to how the court defined a taking in the context of theft in State v. Victor, swpra, i.e., when the offender exerts control over the object adverse to or usurpato-ry of the owner’s dominion. In the instant case, it is indisputable that the victims’ | mcontrol over the items they had placed on the ground in front of them had been usurped by defendant and his accomplice. The victims were not free to pick up any of their possessions as long as defendant was holding them at gunpoint.

Excessive Sentence

The state filed a habitual offender bill seeking an adjudication of defendant as a third felony offender. Defendant was adjudicated a third felony offender based on convictions for attempted felony criminal damage to property and possession ■with intent to distribute a Schedule II controlled dangerous substance, methamphetamine.

Counsel for defendant filed a Dorthey motion seeking a downward departure from the statutory minimum required for each of defendant’s three convictions. The motion was denied and defendant was sentenced to the statutory minimum terms of 66 and 30 years’ imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. All sentences are to be served concurrently.

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.08/04/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). The Johnson court addressed the issue of mandatory sentences in the context of the habitual offender law. In that case, the court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing [n evidence that he is exceptional; namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. Id. at 676.

A defendant’s age is insufficient justification for a downward departure. See State v. Lee, 09-37 (La.App. 5th Cir.05/12/09), 15 So.3d 229. A defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, but it cannot be the only reason, or even the major reason, for declaring such a sentence excessive. State v. Johnson, supra. Drug addiction has also been found insufficient to rebut the presumption of the constitutionality of a defendant’s enhanced life sentence under the multiple offender statute. State v. Baker, 00-1050 (La.App. 5th Cir.11/15/00), 776 So.2d 1212, writ denied, 01-0044 (La.11/16/01), 802 So.2d 621.

As noted above, the trial court sentenced defendant to the mandatory minimum sentence available under the habitual offender statute. Defendant did not appeal his adjudication as a third felony offender. On the issue of exceptional circumstances justifying a downward departure from the mandatory sentence, defendant put on evidence that he had made significant post-arrest efforts at rehabilitation. He had friends and family testify to his possible drug addiction and a less than perfect childhood.

While his post-arrest efforts at rehabilitation may be admirable, such efforts are not a reflection of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the | ^offender, and the circumstances of the case. A defendant obviously has an incentive for good behavior while he is awaiting sentence and acting in accordance therewith does not render him exceptional. As to defendant’s alleged drug problem, not only does the jurisprudence deem this to be insufficient to rebut the presumption of constitutionality, but the evidence was not clear and convincing as to whether such an addiction existed.

Lastly, defendant argues that the “weak evidence” forming the basis of his eonviction should have been considered in determining whether a downward departure was warranted. Defendant did not contest on appeal any element of the crime other than the presence of a taking. That was based upon the fact that the victims were not carrying anything of significant value at the time of the robbery. The trial court did not err in concluding that the victims’ circumstances did not render defendant exceptional for the purposes of justifying a downward departure from the habitual offender mandatory minimum sentence.

This assignment is therefore without merit.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed.