author: ROSEMARY LEDET, Judge.

text:
    Cheryl M. ELLSWORTH v. The CITY OF NEW ORLEANS and the City of New Fourth Circuit Orleans Board of Zoning Adjustments.
    No. 2013-CA-0084.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 2013.

      Edward Reed Washington, III, The Washington Law Group, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Christy C. Harowski, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellant.
    Jane Ettinger Booth, Kyla L. Rogers, Booth & Booth, APLC, New Orleans, LA, for Intervenor/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

I,This is a zoning dispute. The property owner, Cheryl Ellsworth, made an after-the-fact request for a rear yard setback variance, which the City of New Orleans Board of Zoning Adjustments (“BZA”) denied. On Ms. Ellsworth’s appeal, the district court reversed the BZA’s decision. From the district court’s decision, the defendants (the City of New Orleans and the BZA) and the Intervenor (William David Davas) appeal to this court. Because the BZA reviewed the required variance criteria, because the record contains sufficient evidence to support the BZA’s finding that all the variance criteria were not met, and because the BZA’s decision was not arbitrary or capricious or an abuse of discretion, we reverse the district court’s decision and reinstate the BZA’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Ellsworth owns property located at 1311-1313 Vignaud Street in New Orleans, Louisiana (the “Property”). Pursuant to the City of New Orleans Comprehensive Zoning Ordinance (“CZO”), the Property is subject to a twenty⅝>0⅜⅛ rear yard setback requirement. Before Ms. Ellsworth began the work in question, the structure located on the Property was a one-story, classic Victorian residence that was built to match the adjacent house. The structure had an enclosed rear room (porch) that protruded five feet into the required twenty foot rear yard setback, resulting in a fifteen foot rear yard setback. The five foot encroachment was considered an existing, non-conforming use — it was “grandfathered in.”

On March 14, 2011, Ms. Ellsworth obtained a permit from the Department of Safety and Permits to “remove and replace sheetrock wherever necessary, and remove window and replace with recessed door.” (“Permit One”). Permit One did not allow for exterior or structural work. Nor did it allow for demolition. Nonetheless, in March and April 2011, Ms. Ellsworth commenced the demolition of more than one half of the structure, including the protruding rear room. On March 28, 2011, a stop work order was issued for exceeding the scope of the permitted work.

On May 10, 2011, Ms. Ellsworth obtained a second permit to construct a cam-elback addition and a rear porch on the Property. (“Permit Two”). On August 17, 2011, the Department of Safety and Permits issued a stop work order for exceeding the scope of Permit Two; the reason given for the stop work order was as follows:

|sThe scope of work under this permit has been exceeded. The 1st floor has been demolished and reconstructed. The plans show existing 1st floor. The reconstruction and addition are over 50%. Need HDLC [Historic District Landmarks Commission] and zoning [BZA] approval along with new plans.

On August 22, 2011, the Department of Safety and Permits issued a “Referral for Action,” which referred Ms. Ellsworth to the BZA for a waiver of “rear yard setback existing 15'-proposed 10.'”

On January 25, 2012, the Department of Safety and Permits allowed Ms. Ellsworth to “dry in” the walls and roof of the house to prevent further damage to the interior.

On March 14, 2012, Ms. Ellsworth applied to the BZA for a variance. Her variance application listed the waiver amount as “10'” and the purpose of the variance as to match the pre-existing shed and identical set-back to identically built structure next door. Her variance application was considered at the BZA’s May 14, 2012 meeting. At that meeting, the BZA was presented with a staff report that described the request as to permit an addition to the rear of an existing two-family residence causing insufficient minimum rear yard depth (after the fact). The staff report further indicated that “[b]ecause the applicant demolished the portion of the existing first floor that included the encroachment any existing nonconforming encroachments were lost” and thus a ten foot waiver is required. Although the staff report concluded that the nine criteria for granting a variance (discussed elsewhere in this opinion) had only been “partially satisfie[d],” it recommended modified approval of the request. The recommended approval was ^subject to several conditions, including that “[t]he applicant shall meet all life-safety requirements as required by the Department of Safety and Permits.”

At the May 14, 2012 BZA meeting, the Board was presented with letters, affidavits, and testimony from Ms. Ellsworth’s neighbors in opposition to the variance request. After hearing arguments from Ms. Ellsworth, in support, and her neighbors, in opposition, of the variance request, the BZA determined that all nine variance criteria were not met. The BZA thus denied Ms. Ellsworth’s variance request.

Ms. Ellsworth appealed the BZA’s decision to the district court and applied for a writ of certiorari to review the BZA’s decision. In her appeal and petition for writ of certiorari to the district court, Ms. Ells-worth joined as defendants the City and the BZA. Mr. Davas filed a petition to intervene and to unite with the defendants, the City and the BZA. Mr. Davas averred that his interest in the matter was his ownership of property adjacent to Ms. Ellsworth’s property. He further averred that he would be negatively impacted by the granting of the variance. Ms. Ells-worth did not oppose the intervention, which the district court granted.

The parties filed cross motions for summary judgment, which the district court denied. The parties also moved to present additional testimony outside the record pursuant to La. R.S. 33:4727(E)(4). Finding additional testimony unnecessary for proper disposition of this matter, the district court denied the motion. At the outset of the hearing on the merits, the district court provided the following history of the case to put on the record of the appeal:

[flCheryl Ellsworth owns a piece of property located at 1311 and — 13 Vig-naud Street in the Esplanade Ridge, a local historic district in the Bayou St. John neighborhood. This district is classified as an historic district, and it is only subject to demolition review and demolition by neglect.
This case involves the plaintiffs attempt to seek a, quote, after-the-fact variance for her property, which intrudes ten feet onto the required 20-foot rear yard setback. The subject property is located on an irregular-shaped rectangular lot. The original residence of the property, prior to plaintiffs reconstruction, provided a rear yard depth of 15 feet, making the existing residence a nonconforming structure. This nonconforming structure status was grandfathered in at the time, permits were issued for construction on the property, but not without conditions to retention of the nonconforming status.
This case is a dispute regarding whether plaintiffs reconstruction of the property exceeded the scope of the permit she obtained from the City, such that she lost her nonconforming status and should have been required to obtain a variance to the permit.
On March 14th, 2011, plaintiff was granted a permit to remove and replace sheetrock as necessary. There was some exterior work on the home in March and April of 2011. There was some demolition of the structure on April 4th, 2011. She was issued a Certification of Review from the Historic District Landmarks Commission.
There was a second building permit to construct a camel-back addition and a rear porch on the property. The permit was granted based upon the documentation of two sets of plans that plaintiff has, in fact, submitted. There was then, at some point, a stop work order, and now we are here to figure out what is going on.

Following arguments from the parties, the district court found in Ms. Ellsworth’s favor and rendered judgment reversing the BZA’s decision and granting Ms. Ells-worth’s request for a ten foot variance pursuant to her March 14, 2012 application. The district court, following the BZA staffs report, also ordered that “[t]he applicant shall meet all life-safety requirements as required by the Department of Safety and Permits.” The district court provided the following reasons for judgment:

| ^Plaintiff, Cheryl M. Ellsworth, was issued permits for the reconstruction of a non-conforming porch and a camelback addition onto a two-family residence. The City Planning Commission determined the porch lost its non-conforming status after the Department of Safety and Permits permitted the construction of the porch since the reconstruction of the porch increased the extend [sic] of the non-conformance by an extra five feet in length. When the building permit for the camelback was issued, the construction of the camelback was considered permitted because the building footprint was being built straight up from existing encroachments.
Ms. Ellsworth submitted site plans and elevation plans for the construction of the camelback addition to the residence. After the balcony was constructed, the Department of Safety and Permits took the position that it missed the five foot balcony because it was not shown on the site plans, but was shown on the elevation plans, and advised Ms. Ellsworth would be required to apply for a five foot waiver for the protrusion of the balcony into the airspace above the rear yard setback in addition to the five foot waiver for the porch. Ms. Ells-worth, justifiably relied, to her detriment, on the building permits issued allowing construction of the porch and camel back addition with a balcony. “When in reliance thereon, work upon the building is actually commenced and liabilities [are] incurred for work and materials, the owner acquires a vested property right to the protection of which he is entitled.” St. Raymond v. City of New Orleans, 769 So.2d 562, 199[9]-2438 (La.App. 4 Cir. 5/17/00).
The record reflects properties adjacent to Ms. Ellsworth’s property have similar encroachments into the rear yard area ranging from 0' to 15'. The BZA staff report in the record reflects no detriment to the public welfare or injury to other property in the neighborhood in which the property is located. The proposed height of approximately 24' meets the maximum height limitation of forty feet (40'). Strict adherence to the property regulations would require plaintiff, Cheryl M. Ellsworth, to demolish ten feet of the residence that encroaches into the required rear yard and side areas. The ruling of the BZA was arbitrary and capricious in that permits had previously been awarded and its reasons for denial are inconsistent with the neighboring properties.

From this decision, the City, the BZA, and Mr. Davas appeal.

STANDARD OF REVIEW

The jurisprudence has recognized that “the decisions of the BZA, while subject to judicial review under La. R.S. 33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, 17capricious or an abuse of discretion.” French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm’n, 99-2154, p. 3 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19 (citing Curran v. Board of Zoning Adjustments, 90-1441 (La.App. 4 Cir. 04/16/91), 580 So.2d 417, 418; Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 133, 135 (La.App. 4th Cir.1986); Cross v. City of New Orleans, 446 So.2d 1253, 1255 (La.App. 4 Cir.1984)). The jurisprudence has further recognized that “[t]he reviewing court may not simply substitute its own judgment for that of the BZA.” Id. The jurisprudence has still further recognized that it “ ‘is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.’ ” Toups v. City of Shreveport, 10-1559, pp. 5-6 (La.3/15/11), 60 So.3d 1215, 1218 (quoting TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880).

DISCUSSION

“The purpose of a variance is to provide relief from the literal terms of a zoning ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thereby amount to confiscation.” State ex rel. Maple Area Residents, Inc. v. Board of Zoning Adjustments, 365 So.2d 891, 894 (La.App. 4th Cir.1978) (Lemmon, J., concurring) (citing 2 Anderson, AMERICAN LAW OF ZONING § 14.02 (1968)). The Comprehensive Zoning Ordinance provides nine criteria to be applied by the BZA in authorizing a variance. CZO, Art. 14, § 14.6.4, (l)-(9). Unless it determines that all nine criteria are met, the BZA cannot |8grant a variance. Samuel v. City of New Orleans Bd. of Zoning Adjustments, 03-0604, pp. 5-6 (La.App. 4 Cir. 9/17/03), 857 So.2d 1075, 1078; Curran, supra.

In this case, the record reflects that the BZA considered all nine criteria and determined that all the criteria were not met. Reversing the BZA, the district court reasoned that “[t]he BZA staff report in the record reflects no detriment to the public welfare or injury to other property in the neighborhood in which the property is located.” The district court thus found that Criteria (8) was met; Criteria (8) provides: “[t]he granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.” CZO, Art. 14, § 14.6.4(8).

The appellants contend that the district court, in finding Criteria (8) was met, ignored the substantial evidence presented by the neighbors regarding the negative effects of granting the variance request. According to the appellants, the neighbors 19established that Ms. Ellsworth’s newly-constructed house “out-sizes the surrounding properties and looms over the neighboring yards, blocking access to light and an open view.” The appellants further note that “[d]ue to [Ms. Ellsworth’s] oversized new construction and its loss of a Victorian appearance, ... [the] neighbors testified that they feared that [Ms.] Ells-worth’s construction has decreased the value of their own properties.” The appellants still further note that the Louisiana Supreme Court in Toups, supra, reaffirmed the principle that citizen testimony is significant in zoning decisions. The appellants thus submit that the district court erred in finding Criteria (8) was met. We agree.

As noted, the district court, in its reasons for judgment, relied upon the BZA staff report. The BZA staff report was written before the BZA hearing. As we have noted, a BZA staff report is “preliminary in nature and essentially does little more than to summarize the issue for the Board. It is only one consideration the Board uses in making its decision.” McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La. 4 Cir. 5/11/05), 902 So.2d 573 (unpub.). Regardless, the BZA staff report pertaining to Ms. Ellsworth’s request expressly noted that “the staff believes the request partially satisfies the nine criteria as they pertain to the requested variance.” The staff report thus did not conclude that all nine criteria were met as required for the BZA to grant a variance.

In addition to the staff report, the BZA received an abundance of testimony and evidence from Ms. Ellsworth’s neighbors. The public opinion voiced by her neighbors is a valid consideration that the BZA is entitled to consider in ruling on a variance request. Toups, supra. The jurisprudence has long recognized that “ ‘expressions of opinion made by citizens to a legislative body serve as a manner by which the legislative body learns the will of the people and determines what | inbenefits the public good.’ ” Toups, 10-1559 at p. 5, 60 So.3d at 1218 (quoting King v. Caddo Parish Commission, 97-1873, p. 16 (La.10/20/98), 719 So.2d 410, 419 (quoting Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659, 666 (La.1974))). In this case, one neighbor’s letter to the BZA summarized the evidence in opposition to the variance request as follows: “[Ms. Ellsworth’s newly-constructed] structure as is, is intrusiveness of the adjacent property owner’s privacy, has caused decreased property values of the adjacent and surrounding properties, and a potential fire hazard due to the additional second story and close proximity to other properties.” Given the opposing evidence presented by the neighbors coupled with the preliminary nature of the BZA staff report, we find, contrary to the district court, that the record does not support a finding that Criteria (8) was met.

Another criteria indirectly mentioned in the district court’s reasons for judgment is Criteria (4), which provides that “[g]ranting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands, structures,- or buildings in the same district or similarly situated.” CZO, Art. 14, § 14.6.4(4). The district court states that “[t]he record reflects properties adjacent to Ms. Ellsworth’s property have similar encroachments into the rear yard area ranging from 0' to 15.'” The district court thus concludes that the BZA’s ruling was arbitrary and capricious in that “its reasons for denial are inconsistent with the neighboring properties.”

In relying on Criteria (4), however, the district court failed to recognize that the other neighboring properties, referred to in the BZA staff report, have different yard depths and apparently have legal nonconforming uses. In contrast, as discussed elsewhere, the Property lost its nonconforming use when Ms. Ellsworth | n demolished her original five foot encroachment without a permit. The district court’s finding that the surrounding properties have similar encroachments thus is not supported by the record.

Regardless, even assuming, arguendo, that Criteria (4) was met, there is no evidence in the record establishing the other eight criteria, especially Criteria (8), all were met. See Tolis v. Cooper, 522 So.2d 594 (La.App. 1st Cir.1988) (rejecting similar argument in support of an after-the-fact request for a side yard setback variance). Stated otherwise, the BZA’s denial of Ms. Ellsworth’s variance request, based on detriment to the neighborhood, was appropriate regardless of whether her ten foot encroachment is similar to others in the surrounding area.

In sum, we cannot conclude, based on the record before us, that the BZA was arbitrary, capricious, or abused its discretion in finding that all nine variance criteria were not met.

Ms. Ellsworth asserts three independent grounds — not dependent on the variance criteria — in support of her argument that the district court correctly found she was entitled to the variance; to wit: (i) irregularities in BZA proceeding, (ii) the Special Yard exception, and (iii) the vested right doctrine. We separately address each of the three independent grounds.

| w(i) Irregularities in BZA proceeding

Ms. Ellsworth cites Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977), for the proposition that the applicable standard of review includes determining if the BZA’s decision is “supported by substantial and competent evidence adduced in proceedings which are regular and orderly.” Id. She contends that the BZA’s proceeding in this case was fraught with irregularities and thus failed to satisfy that standard. She contends that the BZA improperly altered the Board of Safety and Permits “Referral for Action,” which stated that she only needed a five foot waiver of the rear yard setback. She further contends that given the BZA considered an “illegally altered waiver request,” the district court was within its discretion to ignore the BZA’s decision and to substitute its decision for that of the BZA.

The gist of Ms. Ellsworth’s contention is that the BZA erred in finding that she lost her nonconforming use status for the original five foot encroachment. Both the facts and the law belie her contention. Factually, the record reflects that Ms. Ellsworth requested, in the Variance Application that she completed on March 14, 2012, a ten foot waiver (variance); and the BZA denied her request for a ten foot waiver. Her reliance on the Department of Safety and Permits’ “Referral for Action” form, dated August 22, 2011, to establish she only requested a “5'” waiver is misplaced. The Referral for Action form, dated over six months earlier than her Variance Application, is not the actual application on which the BZA ruled. Both the BZA’s ruling and the district court’s rulings were based on Ms. Ellsworth’s March 14, 2012, Variance Application.

| ^Legally, Ms. Ellsworth’s contention that the BZA lacked the authority to override the Department of Safety and Permits determination, allegedly set forth in its Referral for Action, that she did not lose her nonconforming status is not persuasive. Under the CZO, a demolition of a nonconforming structure results in the loss of the nonconforming use status. Before obtaining Permit Two, which authorized the rebuilding of the porch, Ms. Ellsworth demolished more than half of the original structure, including the nonconforming five foot encroachment. In so doing, she lost her nonconforming use. Ms. Ellsworth’s contention that the BZA proceeding was fraught with irregularities is therefore unpersuasive.

(ii) The Special Yard Exception

Ms. Ellsworth next contends that, regardless of whether the nine variance criteria all were met, she is entitled to a ten foot variance under the Special Yard Exception set forth in CZO Article 14, § 7.4, which provides:

The Board may grant the following yard exceptions:

1. An exception in the yard regulations on a lot which abuts another lot on which front, side, or rear yard is similar to the exception applied for.

Ms. Ellsworth failed to raise the Special Yard Exception before the BZA. Although she raised the exception before the district court, the district court did not address it in its reasons for judgment. In support of her contention that it is appropriate for this court nonetheless to consider the exception on this appeal, Ms. | MEllsworth cites this court’s unpublished decision in McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La.App. 4 Cir. 5/11/05), 902 So.2d 573 (unpub.).

In the McPherson case, both the district court and this court considered the Special Yard Exception, despite the applicant’s failure to raise it before the BZA. Agreeing with the district court, this court cited the Special Yard Exception as additional support for affirming the BZA’s decision to grant a variance. The record in the McPherson case supported the finding that all nine variance criteria were met. This court, like the district court, found the record additionally supported a finding that the Special Yard Exception applied because the exact rear setback of the abutting property was undisputed. Neither of those circumstances is present in the instant case. In this case, the record — contrary to the district court’s conclusion and in accord with the BZA’s conclusion — does not support a finding that all of the nine variance criteria were met. Nor is the exact rear yard setback of the abutting property undisputed. Ms. Ellsworth’s reliance on the McPherson case is thus misplaced.

Ms. Ellsworth’s attempt to present new evidence on appeal in support of the applicability of the Special Yard Exception is misplaced. The jurisprudence is well settled that this court’s review is limited to the evidence in the record. See Miccol Enterprises, Inc. v. City of New Orleans, 12-0864, pp. 6-7 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750-51 (noting that “[a] court of appeal is a court of record, which must limit its review to evidence in the record before it” and citing Miller v. Crescent City Health Care Center, 08-1347, p. 7 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898 (Tobias, J., concurring in part and dissenting in part) |1B(citing La. C.C.P. art. 2164)). Nor do we accept Ms. Ellsworth’s invitation to take judicial notice of the size of her adjacent neighbor’s rear yard setback. We thus find her contention that the Special Yard Exception applies unpersuasive. We, however, reserve Ms. Ells-worth’s right to reapply to the BZA for a variance based on the Special Yard Exception.

(Hi) The Vested Rights Doctrine

Ms. Ellsworth’s final argument, which the district court accepted, is that she “justifiably relied, to her detriment, on the building permits issued allowing construction of the porch and camelback addition with a balcony.” Quoting from St. Raymond, v. City of New Orleans, 99-2438, p. 4 (La.App. 4 Cir. 5/17/00), 769 So.2d 562, 565, the district court states that “[w]hen in reliance thereon, work upon the building is actually commenced and liabilities are incurred for work and material, the owner acquires a vest property right to the protection of which he is entitled.” Id. The district court thus concludes that the BZA was arbitrary and capricious in that “permits had previously been awarded.”

On appeal, the City contends that Ms. Ellsworth did not have a vested right in the addition to the Property because her reliance on the permit allowing the new construction is unjustified. In support, the City cites jurisprudence standing for the proposition that no such property right vests when the reliance is unjustified based on the applicant’s own actions. See Pailet v. City of New Orleans, Dep’t of Safety and Permits, 433 So.2d 1091, 1096 (La.App. 4th Cir.1983); see also Parish of Jefferson v. Davis, 97-1200 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 433-34. The City contends that Ms. Ellsworth cannot justifiably rely on Permit Two because it 11fiwas granted based on misrepresentations and because she exceeded the scope of the permit.

The Department of Safety and Permits issued Permit Two based on documentation and site plans submitted by Ms. Ells-worth that were incorrect in at least the following two respects: (1) failing to disclose that any portion of the structure already had been demolished, and (2) representing that the new construction would not expand the footprint of the Property. As previously discussed, Ms. Ellsworth’s pre-permit demolition of over one half the structure resulted in her loss of her nonconforming use status and required that she obtain a variance before rebuilding on that original five foot encroachment. Ms. Ellsworth’s expansion of the original five foot encroachment out an additional five feet for a balcony likewise required she obtain a variance. Moreover, as the City points out, Ms. Ellsworth was issued multiple stop orders for exceeding the scope of both permits that she was issued. Thus, Ms. Ellsworth’s contention that she justifiably relied on the issuance of the permits is belied by the record.

In finding the vested rights doctrine inapplicable, we further note that the doctrine “applies by its own terms only to arbitrary revocation of a valid building permit,” and that “[njothing in the record gives the [property owner — here Ms. Ells-worth] the right to build a structure that violates the City’s Comprehensive Zoning Ordinance.” St. Raymond, 769 So.2d at 569-70 (Waltzer, J., dissenting). We further note that Permit Two, on its face, expressly admonishes that “THIS PERMIT CONVEYS NO RIGHT TO VIOLATE ANY PROVISION OF THE JjjNEW ORLEANS AMENDMENTS TO THE STANDARD BUILDING CODE OR THE COMPREHENSIVE ZONING ORDINANCE.” Accordingly, the district court’s finding that Ms. Ellsworth justifiably relied on the permits she was issued is not supported by the record; and the district court’s reliance on the vested rights doctrine is misplaced.

In sum, none of Ms. Ellsworth’s three independent grounds for maintaining the district court’s decision is persuasive. As noted at the outset, we reverse the district court’s decision and reinstate the BZA’s decision because the BZA reviewed the required nine variance criteria, because the record contains sufficient evidence to support the BZA’s finding that the variance criteria all were not met, and because the BZA’s decision was not arbitrary or capricious or an abuse of discretion.

DECREE

For the forgoing reasons, the judgment of the district court is reversed; and the decision of the Board of Zoning Adjustments is reinstated. Ms. Ellsworth’s right to reapply to the Board of Zoning Adjustments to seek a variance based on the Special Yard Exception is reserved.

REVERSED

      . CZO Article 4, Section 4.5.7 (Table 4.E). A rear yard setback is the area of empty space required between the back end of a structure and the rear property line.

      .The nine Section 14.6.4 criteria are as follows:
      1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.
      2. Literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.
      3. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.
      4. Granting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands, structures, or buildings in the same district or similarly situated.
      5. The variance, if granted, will not alter the essential character of the locality.
      6. Strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner, as distinguished from mere inconvenience.
      7. The purpose of the variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s) [sic],
      8. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
      9. The proposed variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public street, or increase the danger of fire, or endanger the public safety.
      CZO, Art. 14, § 14.6.4, (l)-(9).

      . Rejecting similar argument, the court in Tolis reasoned as follows:
      Cooper also contends that other homes were built with five foot side yard setbacks and, therefore, standard (d) [here Criteria (4) ] was met. Even if we assume appellee is correct, there is still no evidence that standards (a), (c) and (f) [here (1), (3), and (5)] were met. There is nothing peculiar about Lot 199. Cooper clearly had knowledge of the A-3 zoning requirement when he submitted his building permit application, whether it was actual or constructive knowledge. Cooper had actual knowledge of the A-3 zoning requirement prior to the pouring of the slab. No “demonstrable hardship” would have been imposed on Cooper to simply conform his construction to his plot plan at that time. Cooper poured the slab even though it did not comply with the side yard setback in his permit or the zoning ordinance. Because there is positive zoning law in this case, we may not apply equity to resolve it. La.C.C. art. 21; Kuntsler v. Friedler, 376 So.2d 572 (La.App. 4th Cir.1979).

        Tolis, 522 So.2d at 599.

      . In her application, dated March 14, 2012, Ms. Ellsworth lists the "waiver amount” as "10'.”

      . As noted elsewhere, the "Referral of Action” form states: "waiver of rear yard setback existing 15'-proposed 10.'”

      . See BZA Article 13, Section 13.5.1 (providing that "[bjuildings which are nonconforming only as to height, Floor Area Ratio, yard areas, lot area per family, or parking may be maintained, structurally altered or increased in cubical content, provided such alteration or increase in cubical content shall not further increase the extent of the nonconfor-mance or permit an increase in the number of dwelling units.”); see also BZA Article 13, Section 13.2.2 (providing that “[n]onconform-ing uses are inconsistent with the objectives of the Comprehensive Zoning Ordinance, which is to confine certain classes of buildings and uses to certain localities, and thus, it should be viewed narrowly and have all doubts resolved against the continuation or expansion of nonconformity in order to preserve the property rights of adjacent property owners.”)

      . Ms. Ellsworths also points out that apparently the only case to consider the CZO Special Yard Exception is the unpublished McPherson case. See La. C.C.P. art. 2168 (authorizing the citation of posted, unpublished appellate opinions).

      . Although the appellants in their brief request that we strike the additional evidence Ms. Ellsworth attaches to her brief, the appellants failed to file a motion to strike. Regardless, as noted elsewhere, we find that such evidence is not properly before us on appeal.

      . Ms. Ellsworth also represented that the value of the project was only $30,000. Although the appellants contend that the record reflects that Ms. Ellsworth's work far exceeded this amount, she disputes this fact. We find it unnecessary to resolve this factual dispute.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Julio C. RUANO.
    No. 2012-KA-1517.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Powell Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| T Defendant, Julio Ruano, appeals his convictions of simple burglary of an automobile, aggravated battery and second degree battery. His sole contention on appeal is that the trial court erred in denying his motion to suppress. Our review of the record reflects no error in the trial court’s ruling and we, therefore, affirm defendant’s conviction and sentence.

PROCEDURAL BACKGROUND

By bill of information dated September 22, 2010, defendant was charged with one count of simply burglary, one count of second degree battery and one count of aggravated battery. Defendant’s motion to suppress was denied by the trial court and, after waiving his right to a jury, defendant proceeded to trial over the course of three days in October, 2010. The trial court found defendant guilty on all three charges and sentenced defendant to serve seven years at hard labor on the simple burglary and aggravated battery convictions and five years at hard labor on the second degree battery charge, all sentences to run concurrently.

J^F ACTUAL BACKGROUND

On the afternoon of April 8, 2010, the ■victim, Terencio Salinas, had completed his work day and, while traveling east on the Interstate 610, his van developed a flat tire. He pulled onto the shoulder of the interstate and called his wife, who sent her son, Ruben Suazo, and his friend, Yoni Sanchez-Aguilera, to assist him. The three men left the vehicle on the side of the interstate and drove to a tire shop where the tire from Mr. Salinas’ vehicle was repaired. They returned to Mr. Salinas’ vehicle and noticed another vehicle parked in front and a man taking items from Mr. Salinas’ vehicle.

Mr. Salinas approached the man, later identified as the defendant, who had by then gotten into his vehicle. Mr. Salinas asked the man about the items taken from Mr. Salinas’ vehicle at which point, the man threatened to shoot Mr. Salinas. As the man attempted to drive away, Mr. Salinas “threw himself on top,” “grabbed the steering wheel” and placed his leg in the vehicle to prevent him from “accelerating] and leaving].” A physical altercation ensured for approximately 20-25 minutes, during which time, the man bit Mr. Salinas several times and bit off part of Mr. Salinas’ ear. The man also struck Mr. Salinas with a “pry bar.” One of Ms. Salinas’ teeth was broken during the altercation. Eventually, Mr. Salinas gave up and the man left the scene. Mr. Salinas was hospitalized for three days as a result of the injuries he received.

After his release from the hospital, Mr. Salinas was “determined to find” the man and undertook an effort to locate him, searching facilities often frequented by people of Hispanic descent. Some time later, at a local grocery store, Mr. Salinas |<jSaw defendant and immediately recognized him as the man involved in the April altercation who had stolen his property from his vehicle. The defendant registered a look of surprise. When the defendant left the store, Mr. Salinas followed him and obtained the license plate to the vehicle he was driving. Mr. Salinas contacted the New Orleans police department and provided it with the license plate number. The license plate belonged to a vehicle registered to defendant.

On April 21, 2010, Mr. Salinas was shown a photographic line-up and Mr. Salinas identified defendant as his assailant. He confirmed that identification in court as well. The same photographic line up was shown to Mr. Suazo and a witness, Aris-tede Craig, Sr., both of whom positively identified defendant. Both of whom again identified defendant as Mr. Salinas’ attacker at trial.

DISCUSSION

In his sole assignment of error, defendant maintains that the trial court erred in denying his motion to suppress. He argues that the photographic identification process was suggestive and thus, tainted the victim and the witnesses’ identifications of defendant. In this regard, defendant argues that only one of the photographs matched the description given of assailant and that defendant’s photograph in the line-up was larger than the others. Having reviewed the record, including the photographs, we find no merit to defendant’s assignment of error.

Our jurisprudence is well-settled that a defendant has the burden of proving that an identification was suggestive and that the procedure resulted in the likelihood of misidentification. State v. Harold, 03-0649, p. 6 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265-6, citing State v. Prudholm, 446 So.2d 729, 738 (La.1984). A defendant must first prove that the identification was suggestive. State v. Johnson, 09-1393, p. 7 (La.App. 4 Cir. 7/29/10), 44 So.3d 876, 881, citing State v. Thibodeaux, 98-1673, pp. 20-21 (La.9/8/99), 750 So.2d 916, 932.

Courts have consistently held that a “suggestive identification” is one that focuses the -witness’s attention on a defendant. Id., citing State v. Laymon, 97-1520, p. 16 (La.App. 4 Cir. 3/15/00), 756 So.2d 1160, 1172; Thibodeaux, supra, p. 21, 750 So.2d at 932. However, even it is shown that an identification is suggestive, this Court has noted that this “is not determinative regarding the admissibility of the identification. The likelihood of a mis-identification is what violates due process, not suggestibility by itself.” Harold, supra, p. 6, 861 So.2d at 266. Likewise, even a suggestive identification will be admissible if it is found reliable under the totality of circumstances. Johnson, supra, p. 7, 44 So.3d at 881, citing State v. Laymon, supra, p. 16, 756 So.2d at 1172.

Courts have also consistently held that, in the case of a suggestive identification procedure, the court must then determine whether there was a substantial likelihood of misidentification by looking to the five factors enunciated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and as adopted by the Louisiana Supreme Court in Prudholm, supra, 446 So.2d at 738. See State v. Holmes, 05-1248, p. 6 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1161; State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 134-5; State v. Martin, 595 So.2d 592, 595 (La.1992). Those factors are: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the | ^length of time between the crime and the confrontation. Johnson, supra, p. 7, 44 So.3d at 881.

The trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Green, 98-1021 (La.App. 4 Cir. 12/22/99), 750 So.2d 343, 350. In evaluating a defendant’s argument on a motion to suppress, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Lewis, 04-0227 (La.App. 4 Cir. 9/29/04); 885 So.2d 641, 652.

In the instant matter, we find nothing to suggest that the procedure used during the line-up was suggestive. Detective Nigel Baddoo, who compiled the lineup, interviewed defendant at his home and, with his permission, obtained his photograph. He prepared the line-up, shuffled the pictures and handed them to Mr. Salinas, who positively identified defendant. He followed this same procedure with Mr. Suazo and Mr. Craig. With all of the witnesses, Detective Baddoo advised that they take their time, that the photographic line-up may not contain the perpetrator’s photograph and that they should not feel compelled to identify anyone. There is nothing in the record to suggest that Detective Baddoo “suggest[ed], promise[d], threaten[ed] or coerce[d] the victim [or the witnesses] into making an identification.” See: Johnson, supra, p. 3, 44 So.3d at 881.

We likewise find no error in the trial court’s conclusion that, while there are some differences in the photographs, those differences do not suggest a possibility of misidentification. We find no merit to defendant’s argument that his photograph is larger than the others. While two or three of the faces in the photographs are slightly smaller than defendant’s, two are of virtually the same size as defendant’s Rface. Nor do we find that the other photographs depict men so substantially different in appearance than the description given of defendant that the identification procedure was suggestive. We therefore find nothing in the photograph line-up that drew undue focus on defendant’s photograph.

Because we find that the photograph line-up was not suggestive, we need not address the remaining Manson factors. However, as we found in Johnson, supra, even assuming that there was some minimal suggestiveness, Mr. Salinas had a more than sufficient opportunity to view defendant, given the length of time of the altercation and the fact that he was face-to-face with him, as did both Mr. Suazo and Mr. Craig. Similarly, the positive identifications of defendant were made within two weeks of the crime. We conclude that the trial court’s properly denied defendant’s motion to suppress. We affirm defendant’s conviction and sentence.

AFFIRMED

      . These charges are violations of La. R.S. 14:62, 14:34.1 and 14:34, respectively.

      . Defendant was also ordered to pay restitution of $3,944.35 in connection with the conviction of aggravated battery.

      . Mr. Salinas, a native of Nicaragua, testified that he knew the man to be of Hispanic descent as well.

      . The vehicle was not the same vehicle as that used on the day of the incident.

      . At the time of the incident, Mr. Craig was driving on Interstate 610 and stopped after being flagged by two men. He saw two people fighting inside a vehicle, and witnessed defendant strike Mr. Salinas with a tire iron. Mr. Craig stayed at the scene of the incident until the police arrived.

      . We have also reviewed the record for errors patent and found none.


author: JAMES F. McKAY, III, Chief Judge. LOBRANO, J.,

text:
    STATE of Louisiana v. Joseph PERKINS.
    No. 2012-KA-0662.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY, III, Chief Judge.

hThe defendant, Joseph Perkins, appeals from his conviction and sentence for violating La. R.S. 14:95.1, to wit, possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies. For the reasons that follow we find that the trial court erred in denying Joseph Perkin’s request for special jury instructions concerning self-defense/justification. Thus, we reverse the defendant’s conviction, vacate his sentence and remand the matter to the trial court for further proceedings consistent with this opinion.

PROCEDURAL HISTORY OF CASE

The State filed the bill of information in this matter on June 10, 2010. The defendant, Joseph Perkins, was charged with one count of violating La. R.S. 14:95.1, which prohibits a convicted felon from possessing a firearm or a concealed weapon. The defendant entered a not guilty plea at his arraignment on June 16, 2010. At the arraignment, the State turned over a copy of the police report to defense counsel. A motion hearing was held on September 30, 2010; the court found probable cause to substantiate the charge and denied the motion to suppress evidence. After several defense continuances, so that forensic testing could be completed, the trial commenced on November 15, 2011. It concluded on [¡.November 16, 2011 when the twelve-person jury returned a verdict of guilty. On December 15, 2011, the defense counsel filed a motion in arrest of judgment with an accompanying memorandum; the trial court denied the motion on January 5, 2012. The defense objected and gave notice of intent to seek writs. After this Court denied the defendant’s writ application and the request for a stay order, the defendant appeared for sentencing on January 23, 2012. Defense counsel first filed a motion for new trial, which the court denied. The defense Counsel then announced that his client was ready for sentencing. The trial court imposed a sentence of fifteen years at hard labor. Pursuant to a plea bargain involving two other pending cases against the defendant, the State agreed not to file a multiple bill in this case.

STATEMENT OF THE FACTS

Deputy Lance Wade, a deputy employed by the Orleans Parish Sheriffs Office and assigned to the Special Operations Division, testified that on April 28, 2010, he responded to an incident at New Orleans Parish Prison (“O.P.P.”) to conduct an investigation of an altercation between inmates. As part of his investigation, Deputy Wade attempted to interview the defendant in the O.P.P. medical clinic where the defendant was receiving treatment for lacerations to his head, arms, chest, and neck. The defendant declined to be interviewed. Another inmate, Desmond Douglas, was also in the medical clinic being treated for numerous lacerations; he too declined to give a statement to Deputy Wade. Deputy Wade took photographs of the injuries suffered by the defendant and ¡¡¡Desmond Douglas. He also photographed four homemade knives, or shanks, which had been seized by other deputies.

Sergeant Chaz Ruiz of the Orleans Parish Sheriffs Office, a watch commander at O.P.P., testified that on April 28, 2010, he was advised that an incident had just occurred on tier A-3. When Sergeant Ruiz reached the tier, he saw two inmates, Desmond Douglas and Alvin Ivery, being led off the tier and placed against a wall by deputies. Seconds later, the defendant was called out of the tier by Deputy Darren Vicknair and placed against the wall to be searched. Sergeant Ruiz then began searching the defendant, starting from the collar area. As he searched, the defendant took two shanks out of his pants and threw them on the floor; he then placed his hands back onto the wall. Sergeant Ruiz finished searching the defendant, but found no contraband. He also searched Alvin Ivery, with negative results. As the sergeant turned his attention to Desmond Douglas, Douglas reached into his clothing and threw two shanks onto the floor. The subsequent search of Desmond Douglas was negative.

During cross-examination, Sergeant Ruiz stated that the defendant put his hands into his waistband, and then discarded the shanks.

On April 28, 2010, Deputy Darren Vick-nair was working as the floor deputy on the night shift on tier A-3 at O.P.P. At approximately 5:00 a.m. the inmates’ breakfast was delivered to the two day rooms on the tier, and the inmates were released from their cells to go to the day rooms to eat. As Deputy Vicknair was watching the two day rooms and the hallway from a central point, he observed 14Alvin Ivery and Desmond Douglas in the left-side day room. The two inmates were standing across from each other. Alvin Ivery had his hands behind his back, and in each hand was a knife or shank. Desmond Douglas had his hands in his pants. Deputy Vicknair immediately called for backup, and in response the watch commanders from the previous night shift as well as the morning watch commanders responded. Once Deputy Vicknair had sufficient support, he opened the third door leading to the tier and instructed Alvin Ivery and Desmond Douglas to walk out, which they did. However, before Alvin Ivery walked out of the day room, he sat back onto a table and placed the two knives down. Deputy Vicknair then saw the defendant walk up, pick up the two knives, and place them in the front of his pants where they could not be seen. The defendant then tried to walk away, but was called off of the tier by the deputy. Once outside of the day room and against the wall, the defendant threw the knives to the floor as he was being searched.

Deputy Vicknair testified that he did not observe the defendant in any type of altercation. He also denied observing a fight between Alvin Ivery and Desmond Douglas.

The State also called as a witness Officer George Jackson, an expert in the field of fingerprint analysis, who testified that he compared a set of the defendant’s fingerprints, which he obtained on the day of the trial, to two fingerprints on the back of a bill of information. In his expert opinion, the fingerprints on the back of the bill of information were those of the defendant. Officer Jackson testified further that the front of the bill of information reflected that the name of the person charged in the bill with the robbery of Linda Hughes was Joseph Perkins. The bill of information was in a court file which included a guilty plea form reflecting that |Bthe defendant was sentenced to eighteen months. The case number for the court file was 410-727. From these documents and the fingerprints, Officer Jackson was able to state that the defendant was the same Joseph Perkins who pled guilty to robbery in case number 410-727, which is the predicate offense used to establish the defendant’s felony offender status.

The defendant’s first witness at trial was Deputy Wade, who was asked about his interview with Deputy Vicknair during his investigation into the incident. When asked if Deputy Vicknair told him that the defendant and Desmond Douglas were involved in a “frantic physical confrontation,” he stated that, if this was in his report, then it was what Deputy Vicknair told him. Deputy Wade admitted that he recalled Deputy Vicknair reporting that he saw a physical confrontation between Desmond Douglas and the defendant, but he could not recall the exact words which the deputy used to describe the incident. After reviewing his report of his investigation to refresh his recollection, Deputy Wade testified that, during the confrontation between Desmond Douglas and the defendant, Alvin Ivery placed a shank on a bench. On cross-examination, Deputy Wade stated that he recalled Deputy Vick-nair telling him that, although he did not see the altercation, he did observe stab wounds on Desmond Douglas and the defendant.

On the second day of trial, the defense called Jennifer Valentine of the Tarrant County Medical Examiner’s Office and Forensic DNA lab to testify regarding DNA testing she conducted on the four shanks seized after they were thrown down by the defendant and Desmond Douglas. The court, after hearing Rher qualifications, found that Ms. Valentine was an expert in the field of DNA analysis and as such could give opinion testimony. After describing at length DNA testing in general and the methods and steps taken in the office in which she is employed, Ms. Valentine testified regarding the specific tests she ran on the four knives submitted to her in this case. She first tested for evidence of human blood. Testing was positive on the handle of the first knife she tested, which she labeled knife A, and on the last one she tested, knife D. After conducting the blood testing, Ms. Valentine returned the evidence to the clerk’s office. Then, after reporting her findings to defense counsel, the knives were returned to her. At the same time, she received a sealed envelope marked as containing buccal swabs from Joseph Perkins. After conducting DNA testing on knife A and the buccal swabs, Ms. Valentine concluded that the DNA profile obtained from the handle of knife A was the same DNA profile obtained from the defendant’s buccal swab. The DNA profile obtained from the knife established that the blood on the handle was the defendant’s blood. Ms. Valentine was unable to obtain a DNA profile from the other three knives.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the appellant maintains that the trial court erred when it refused to give the jury his requested instructions regarding self-defense, necessity, and justification. The proposed instructions were submitted to the trial court, which the trial court rejected on the grounds that there was no 17evidence adduced at trial to support an argument that the defendant possessed the knives due to an emergency or to protect himself or others.

La.C.Cr.P. art. 802(1) provides that the court shall charge the jury “[a]s to the law applicable to the case.” Pursuant to La.C.Cr.P. art. 808, “[w]hen a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.” La.C.Cr.P. art. 807 provides that

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Any such charge must be supported by the evidence. State v. Craig, 95-2499, p. 7 (La.5/20/97), 699 So.2d 865, 869. In State v. Parker, 2010-1277 (La.App. 4 Cir. 9/21/11), 76 So.3d 55, writ denied 2011-2339 (La.3/9/12), 84 So.3d 551, this Court discussed these articles and how they had been interpreted in various cases:

A trial court must instruct the jury as to the law applicable to responsive verdicts. La.C.Cr.P. art. 803. La.C.Cr.P. art. 802 mandates that the trial court instruct the jury as to the law applicable to each case. This rule has been interpreted as requiring the trial court to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. See La.C.Cr.P. art. 807, which provides in part that requested special written charge shall be given “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” See also State v. Goodley, 2001-0077 (La.6/21/02), 820 So.2d 478; State v. Jackson, 450 So.2d 621, 632 (La.1984); State v. Scott, 2009-0138 (La.App. 4 Cir. 11/18/09), 26 So.3d 283, writ den., 2009-2773 (La.6/18/10), 38 So.3d 320; State v. Patterson, 99-994 (La.App. 5 Cir. 1/25/00), 752 So.2d 280. As noted by this court in State v. Jenkins, 98-1603, pp. 23-24 (La.App. 4 Cir. 12/29/99), 750 So.2d 366, 379: “The refusal to give a requested special charge does not warrant reversal of a defendant’s conviction unless it prejudices substantial rights of the accused. La.C.Cr.P. article. 921; State v. Marse, 365 So.2d 1319 (La.1978); State v. Johnson, 514 So.2d 684 (La.App. 2d Cir.1987).”
In Goodley, a murder case, the Court found that the trial court did not err in failing to instruct the jury on theft, with respect to the responsive verdict of manslaughter, where the evidence showed that the defendant was a principal to the underlying armed robbery. In Jackson, the Court held that in a first degree murder prosecution the trial court did not err in refusing to give the defendant’s requested instruction concerning negligent homicide because that offense was not fairly supported by the evidence, in that the defendant strangled the victim. In Scott, this court found that the trial court properly denied the motion to instruct the jury on the defense of others, where there was no indication that the victim was threatening anyone. In Patterson, the court found no error in the trial court’s refusal, in a second degree murder prosecution, to give a requested charge on negligent homicide, where there was no evidence from which the jury could have inferred guilt of that lesser offense. The victim died in the hospital after he was severely beaten by the defendant outside of a bar.

Parker, 2010-1277, pp. 15-17, 76 So.3d at 64-65.

The statutory defense of justification is a codification of the legal doctrine of necessity, which generally provides that the existence of extenuating circumstances will defeat criminal culpability. See State v. Recard, 97-754, pp. 5-7 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 327-29, and authorities cited therein. As the Third Circuit has pointed out, this doctrine has been applied under circumstances other than those enumerated in La. R.S. 14:18, Recard at 6-7, 704 So.2d at 328, and has been recognized as providing a defense in any case in which it is not expressly prohibited, including a prosecution for violating La. R.S. 14:95.1. State v. Blache, 480 So.2d 304 (La.1985); State v. Smith, 96-2502 (La.App. 4 Cir. 12/27/96), 686 So.2d 1009; State v. Jones, 539 So.2d 866 (La.App. 4 Cir.1989). This is in accord with the language of La. R.S. 14:18, which provides for the general | ^provisions for justification: “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances: ... (7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.” La. R.S. 14:19, concerning the use of force or violence in defense, provides in pertinent part:

A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

In Blache, where the court recognized that a defense of justification is available to a defendant charged with violating La. R.S. 14:95.1, the court explained the parameters of that defense in such a case:

We hold that when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such situation justification is a defense to the charge of felon in possession of a firearm.
1 ,„This is not to say that a convicted felon is entitled to own or maintain possession of a weapon, constructive possession or otherwise, for protection, or for any other reason.

Blache, 480 So.2d at 308. See also State v. Sanchell, 2011-1672, p. 7 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, 681.

“ ‘Necessity,’ when raised as a defense to the illegal possession of a firearm, entails proof that the threat of force by another is imminent and apparent, and that the person threatened has no reasonable alternative but to possess the firearm.” State v. Jackson, 452 So.2d 776, 779 (La.App. 4 Cir.1984). [emphasis in original.]

Here the trial court refused to give any of the defendant’s proposed jury instructions regarding self-defense or justification, finding a lack of evidence to make any of the defenses applicable to the facts presented. Defense counsel argued that there was evidence of an altercation, during which the defendant had clearly suffered significant injuries to his head, arms, chest and face area which required him to be brought to the O.P.P. medical clinic where he was given numerous stitches.

The court reviewed all of the potential grounds for a defense of justification under La. R.S. 14:18, and found that that there was a lack of evidence to suggest any applied. The court noted that, while there was evidence of the injuries suffered by the defendant, there was “no testimony as to how those were obtained. There was testimony that he may have been involved in something with Mr. Douglas, but nothing further than that. No one testified as to that.”

Based on our review of the record it is apparent that the wounds to the defendant were clearly visible and evident of defensive wounds. There was blood on both the defendant and Desmond Douglas, but not on Alvin Ivery. | n Furthermore, the DNA testing proved that the defendant’s blood was on one of the knives that he threw down as he was being searched. Clearly, a violent altercation had transpired in which the defendant was involved. What testimony was needed to corroborate that there had been a violent altercation and that the defendant had suffered significant injuries? The prior testimony of Officer Vicknair confirms that he saw Desmond Douglas and Alvin Ivery with knives. He also saw the defendant pick up the knives that Alvin Ivery had placed on the table in the day room. Deputy Vicknair testified that he realized that there was or had been an altercation, when he saw Desmond Douglas and Alvin Ivery facing off in the room. He could see that Alvin Ivery was holding two shanks behind his back. At that point, there apparently was no physical confrontation between Desmond Douglas and the defendant or Desmond Douglas and Alvin Ivery or the defendant and Alvin Ivery. The defense counsel’s attempt to elicit that Deputy Vicknair had witnessed an altercation between Desmond Douglas and the defendant, was to no avail. It begs the question, how or when did the defendant’s injuries occur?

It is improbable that the defendant’s injuries were self-inflicted. Here, hypo-theticals are not needed, nor is testimony from any eye-witness. The injuries which the defendant sustained appear defensive in nature and speak for themselves. The defendant was incarcerated in O.P.P. at the time of the altercation; not in a neighborhood bar, at a work site, or in an office setting. While we note that there are rules in all State prisons forbidding the possession of weapons and contraband by inmates and a significant necessity for the wardens to control their prisons to prevent just such violent altercations, the inevitability of violence in prisons is present. See La. R.S. 14:402(B)(D)(2). In this specific instance the probability that this altercation was over before the duty officers | ^arrived at the scene is highly unlikely. This is evidenced by the fact that Desmond Douglas continued to possess two shanks until the deputies began their search. Only when the deputies appeared and only after Desmond Douglas dropped his shanks to the floor did the defendant dispel the shanks that he possessed. The defendant obviously knew that Desmond Douglas was still armed and that he and Alvin Ivery were still in danger from Desmond Douglas until the deputies’ intervention. The imminent danger was averted. It is reasonable to conclude that the defendant perceived that he was still in imminent danger of death or further bodily harm and that he was continuing to protect himself.

The trial court erred in refusing to give the jury instructions on self-defense and justification, thereby denying the defendant a fair trial by denying the jury the opportunity to consider those potential defenses and the reasonableness of the defendant’s actions. Therefore, based on the facts of this case we reverse the defendant’s conviction and vacate his sentence and remand the matter to the trial court for further proceedings consistent with this opinion.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the appellant avers that the bill of information was fatally defective as it failed to properly charge him with an offense. As we have reversed the defendant’s conviction and vacated his sentence any opinion on this assignment of error is moot.

ERRORS PATENT

Although, a review of the record for errors patent reveals two pertaining to the sentencing provisions of La. R.S. 14:95.1, as we have reversed the defendant’s conviction and vacated his sentence, the implementation of the patent error #1, is moot.

| ^CONCLUSION

The defendant’s conviction is reversed, his sentence is vacated and the matter is remanded for further proceeding consistent with this opinion.

REVERSED; SENTENCE VACATED AND REMANDED

LOB RANO, J., dissents with reasons.

LOBRANO, J.,

dissents with reasons.

Iff respectfully dissent from the majority’s opinion reversing the defendant’s conviction.

With respect to the first assignment of error, I do not find that the trial court erred in refusing to give the jury instructions on self-defense and justification. At the time at which Deputy Darren Vicknair testified he realized that there was or had been an altercation, he saw Desmond Douglas and Alvin Ivery facing off in the room. He could see that Ivery was holding two shanks behind his back. At that point, there was no physical confrontation between Douglas and the defendant or Douglas and Ivery or the defendant and Ivery. While defense counsel attempted to elicit that Deputy Vicknair witnessed an altercation between Douglas and the defendant, there was no suggestion by the defense or testimony from anyone that the defendant had any knives in his possession at the time of the fight in which the defendant was injured. While the defendant may have been stabbed by Douglas and may have stabbed Douglas, he would then have had to give the knives to Ivery, who was not injured, and pick them back up after Ivery put them on the table. It appears just as likely that Ivery, armed with his shanks, intervened to protect the defendant and, in the process, stabbed Douglas, then dropped the knives on the table.

l?In any event, the testimony of Deputy Vicknair was uncontradicted on the critical issue, which is that the defendant picked up the knives and placed them in his pants after the fight was over and Douglas and Ivery had been called out of the day room by Deputy Vicknair. Once Ivery divested himself of the knives, he did not pose a threat to the defendant (assuming he had ever posed a threat). Douglas also no longer posed a threat, having been called out of the day room by Deputy Vicknair. Also, according to Deputy Vicknair, when the defendant picked up the knives, he attempted to walk away unnoticed; he did not seek to alert Deputy Vicknair that there were weapons which needed to be secured away from the prisoners. Thus, the defendant he did not divest himself of them at the earliest reasonable opportunity, but instead concealed them in his clothing, manifesting an intent to maintain possession of the concealed weapons. See State v. Sanchell, 2011-1672 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, in which the defendant appeared to have been justified in arming himself, but he then hid the firearm under a mattress in his relative’s house instead of giving it to his girlfriend, who was present, or to one of the policemen who arrived on the scene in response to call for help. Thus, the trial court’s refusal to give the requested jury instructions did not prejudice substantial rights of the defendant.

In the second assignment of error, the defendant avers that the bill of information was fatally defective as it failed to properly charge him with an offense. This assignment of error does not merit reversal of the defendant’s conviction because any error in the bill was not raised in a timely matter by the defense and the defendant was not prejudiced. There was no objection to the defective bill of information on a timely basis. The motion for mistrial was directed more toward the jury charge, which was a correct statement of the law, than to the defective nature of the bill of information. Furthermore, a review of the entire record amply demonstrates that the defendant and his attorney were on | ¡¡notice that the State contended that he concealed the knives, as required to commit the offense of violating La. R.S. 14:95.1. For example, at arraignment the State turned over a copy of the police report to defense counsel. In that report, the offense is specifically listed as possessing or carrying of a concealed weapon. In the narrative portion, the detective who prepared the report stated that he advised the defendant that he was going to be arrested for carrying a concealed weapon. At the preliminary examination and motion hearing conducted on September 30, 2010, defense counsel extensively questioned the State’s witness about where in the clothing or on his person the defendant allegedly concealed the weapons. At the conclusion of the hearing, the trial court specifically found that there was probable cause to hold the defendant for the crime of carrying a concealed weapon.

Furthermore, in addition to the jury being correctly instructed on the elements of the offense, the parties discussed the element of concealment of the weapon throughout the voir dire. The jury verdict form correctly provided for three verdicts: (1) Guilty; (2) Guilty of attempted carrying a concealed weapon by a convicted felon; and (3) Not Guilty. Thus, despite the bill of information being defective, the jury was aware throughout the trial that in order to have committed the crime, the defendant had to have concealed the weapon; if the State did not prove concealment beyond a reasonable doubt, the jury could not render a verdict of guilty as charged as it did. The defendant was not convicted of a non-existent crime as he contends.

I would find that a review of the record for errors patent reveals two pertaining to the sentence imposed. The sentencing provisions of La. R.S. 14:95.1 provide that a person convicted of possession of a concealed weapon by a convicted felon “shall be imprisoned at hard labor for not less than ten nor more than fifteen years, without benefit of parole, probation or suspension of sentence and pay a fine of not less than one thousand dollars nor more than five thousand | ¿dollars.” The district court failed to impose the mandatory fine as required. The court also failed to deny the defendant’s eligibility for parole, probation, or suspension of sentence. Accordingly, the defendant’s sentence is illegally lenient.

In State v. Williams, 2003-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, this Court held that a reviewing court must remand cases for the imposition of a mandatory fine where the trial court failed to do so. Thus, in accordance with this Court’s jurisprudence, the matter should be remanded to the trial court for the imposition of the mandatory fine. See State v. Harris, 2011-0663, p. 4 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, 1225; State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577; and State v. Brown, 2003-2155 (La.App. 4 Cir. 4/14/04), 895 So.2d 542.

In addition to these two sentencing errors, the bill of information failed to state that the defendant possessed a concealed weapon. The requirement that the weapon be concealed applies when it is a weapon other than a firearm which is possessed by the convicted felon. La. R.S. 14:95.1. The failure to include the language of concealment is raised in the defendant’s second assignment of error and was previously discussed.

Therefore, I would affirm the defendant’s conviction and sentence of fifteen years and remand the matter for imposition of the mandatory fine and denial of defendant’s eligibility for parole, probation or suspension of sentence required by La. R.S. 14:95.1.

      . State v. Perkins, unpub. 2012-0063 (La.App. 4 Cir. 1/13/12).

      . Desmond Douglas was charged in the bill of information with one count of violating La. R.S. 14:402(B), possession of a shank (homemade knife) in Orleans Parish Prison. Mr. Douglas is not a party to this appeal as he entered a plea of guilty to the charge on August 12, 2010, in exchange for a two-year sentence and no multiple bill.

      . The last witness on the first day of trial was David Olasky, an investigator formerly employed by the Orleans Parish Public Defender Program. He set out his actions in connection with having knives sent from the Property and Evidence room to the Tarrant County Forensic DNA lab; this was done on two occasions. He also testified that he obtained buccal swabs from the defendant and described the steps he took to have the swabs sent to the same lab. Each time the evidence was sent to the lab, it was returned directly to the clerk’s custody.

      . Ms. Valentine stated that the Tarrant County Forensic DNA lab receives cases primarily from North Texas, but also from throughout the country. The latter typically are defense requests for testing. All agencies except the Tarrant County District Attorney’s Office are charged for DNA analyses. Ms. Valentine is permitted to use personal leave time to testify in these cases and to bill privately for her time.