author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Aaron R. MERCADEL.
    No. 2012-KA-0685.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Joseph Yurgil, Law Clerk, New Orleans, LA, for Appellee/State Of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge, MAX N. TOBIAS, Jr., Judge, MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

11 Aaron Mercadel allegedly accepted money from five individuals to perform home construction/repairs/renovation work. Due to his alleged failure to complete this work, he was charged by bill of information with five counts of theft of U.S. currency valued at $500.00 or more, violations of Louisiana Revised Statute 14:76, and one count of issuing a worthless check in the amount of $1,032.50, a violation of Louisiana Revised Statute 14:71. Prior to trial, the court severed Counts One and Six from the remaining counts and proceeded to trial on four counts of theft over $500.00. Following a judge trial, the court convicted Mr. Mercadel of two of the counts and acquitted him of two of the counts. The trial court sentenced Mr. Mercadel to six years at hard labor on each count, to run concurrently with each other.

Subsequently, Mr. Mercadel pleaded guilty to Counts One (theft over $500.00) and Six (issuing a worthless check) and was sentenced to six years at hard labor on each of these counts, to run concurrently with the sentences imposed for the other convictions. He was then adjudicated a second-felony habitual offender on Count Two. The trial court vacated the original sentence and 12resentenced him as a second-felony offender on this count to six years at hard labor, to rim concurrently with the other three counts.

Mr. Mercadel’s counsel filed an appeal for a review of the record for errors patent and filed a motion to withdraw pursuant to Anders v. California, 886 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Mr. Mercadel filed a pro se appeal asserting insufficiency of evidence, the failure of the trial judge to recuse himself from the trial, the right to conflict-free representation, and ineffective assistance of counsel. For the reasons that follow, we grant appellate counsel’s motion to withdraw and affirm the judgment of the trial court.

FACTS

The trial court conducted a judge trial on Counts Two, Three, Four, and Five. Each of the victims alleged that they paid money to Mr. Mercadel to perform home construction/repair/renovation work to their respective homes. They all contend that he did not complete the work he was hired to perform, that much of the work he did perform was substandard and had to be redone, and that he took money from them with the intent to deprive them of it permanently. As the court found Mr. Mercadel guilty only on Counts Two and Four, we will address the facts pertinent to these counts.

Count Two — Gloria Jackson

Gloria M. Jackson, then age seventy-four, testified that due to damage from Hurricane Katrina her home located at 1538 Tricou Street had to be torn down. She contracted with Mr. Mercadel to build a new home for $50,000. Ms. Jackson testified that she wrote two checks to Mr. Mercadel, one for $20,000 and one for $6,000. She testified that Mr. Mercadel told her that the $26,000 would go toward I.Jabor and materials, that this amount was roughly half the price of the contract, and that it was what he needed to start the job. Ms. Jackson testified that Mr. Mercadel applied for building permits and that he applied for a bench mark certifícate. However, the foundation for the home was never finished, and the home was never constructed. Ms. Jackson identified photographs of what her property looked like when Mr. Mercadel ceased construction.

Ms. Jackson confirmed that she was in continuous communication with Mr. Mer-cadel, because “I was constantly calling him.” Ms. Jackson recorded some of her telephone conversations with Mr. Mercadel which were played for the jury. Ms. Jackson stated that she tried to get Mr. Merca-del to perform the work beginning in 2007 up until the time of trial in 2010. She said that after Mr. Mercadel failed to fulfill his promise to complete the work, she requested that he return her money beginning in 2008. She testified that he agreed to do so, but never did. She testified that she even told him he could repay her in “parts.” He agreed to give her $5,000. She said he then told her he could only come up with $2,000, which she agreed to accept and wait for the remaining $3,000. However, she testified that he never repaid her any money.

Ms. Jackson lodged a complaint with the Louisiana Department of Justice. Mr. Mercadel purportedly responded to the complaint with a letter “written on behalf of Mr. Mercadel from ‘My Three Sons.’ ” In the letter Mr. Mercadel said he had made numerous attempts to give her back her money. The letter also stated that he did not believe that he could do the remaining work required in the house for the amount of the contract. The letter also stated that he would return $19,420 to her. Ms. Jackson testified that Mr. Mercadel owed her more than that amount and that the allegations in the letter were not true.

|4Mr. Mercadel testified in his own behalf. He testified that he was fifty-four years old and had been doing construction work since he was eighteen or nineteen years old. Mr. Mercadel said that he was quite experienced in giving bids on properties, estimating that he had been doing it for fifteen years when he entered into the contracts at issue in the instant case. Mr. Mercadel admitted that he previously pleaded guilty to simple burglary; to issuing worthless checks; and to misapplication of contractor payments.

As to Gloria Jackson’s residence, he testified that he applied for a building permit, obtained architectural drawings, and obtained a bench mark and elevation certificate from a surveying company. He produced a receipt for a load of dirt for the project and a diagram of the foundation for the home. He said there was no “re-bar” for the foundation on the construction site because when the government announced $30,000 grants to elevate homes in the area the cost of steel, concrete and other materials skyrocketed. Also, he testified that when he took the architectural drawings to a lumber yard the quote for the cost of the materials for the rough framing of the residence — not including electrical, plumbing, insulation, roofing materials, etc. — was $49,860.

He stated that because a lot of heavy equipment in the area had been lost to Hurricane Katrina, he was unable to find a bucket to dig the chain wall space according to the specs he was using. He hired five workers to manually dig it at a cost of $100 per day per worker and that this cost ate him up financially. Mr. Mercadel stated that due to the weather and this necessity of manual labor, it took him three months to dig the trench for the chain wall and foundation for Ms. Jackson’s home. He stated that he had to clear up a surveying problem with the property at City Hall which added another two months to his time delays.

|5He admitted that Ms. Jackson gave him a $20,000 deposit, and that he spent almost $16,000 immediately. He said that Ms. Jackson did give him another $6,000, but she refused to give him any more money after that until he completed more work. He said she did not understand that he could not build the home’s foundation and the home itself for $26,000. Although the contract called for $50,000, he stated that she did not understand that he needed more money to complete the job.

Mr. Mercadel testified that in response to a letter from the State Licensing Board stating that he could be penalized up to $2,500 if he did not act on Ms. Jackson’s complaint within five days, he wrote the letter to the Louisiana Department of Justice offering to repay $19,420. He denied at trial that he owed Ms. Jackson that amount, reiterating that he had spent almost $16,000. He said he was going to give Ms. Jackson $19,420 just to satisfy her. He never returned any money to Ms. Jackson.

Mr. Mercadel testified that he stopped working on Ms. Jackson’s house when she said she could not give him any more money. He said he explained to her that he was looking at $28,000 for the foundation work and almost $50,000 on rough materials to rough-frame the house. He told her he would try to get money from another program, but he was never able to do so.

Count Four — Kim Castle

Kim Castle, then living in Murfreesboro, North Carolina, testified that she owned a residence at 1405 Aubry Street in New Orleans that was devastated by Hurricane Katrina. She testified that she and Mr. Mercadel were friends from | r,childhood and that she trusted him. Ms. Castle ran into him and mentioned that she was looking for a contractor to renovate this rental property. He told her that he was a contractor working on million dollar homes. They entered into a contract and she gave him a check for $15,000. Ultimately, she gave Mr. Mercadel and his company, “My Three Sons,” a total of $38,000.

Ms. Castle testified that Mr. Mercadel telephoned her in North Carolina about an opportunity he had to purchase an air conditioning unit for $3,500, telling her he needed the money right away. She testified that she sent a check for $3,000 to Mr. Mercadel by next-day-delivery-mail and told him that she would be in New Orleans the next week to give him the remaining $500 upon seeing that the air conditioning unit had been installed. The next week she drove to New Orleans and discovered that there was no air conditioning unit on site and was unable to locate Mr. Merca-del. She said that Mr. Mercadel told her that he would return the $3,000 to her but never did. Ultimately, she had to hire another contractor to install an air conditioning unit.

Ms. Castle testified that Mr. Mercadel telephoned her “maybe two and a half years later” and told her that her residence was almost finished; that he had installed the bottom cabinets in the residence; and that the residence looked beautiful. She again came to New Orleans and discovered that he had not installed any cabinets.

Over the years, Ms. Castle testified that Mr. Mercadel gave her numerous reasons why he did not finish the work. Once, he told her that he could not get a work permit because FEMA had stopped giving permits. On another occasion, he told her that someone in his family died. Another excuse was that some of his workers had hangovers. Another time, he told her that he would be able to |7purchase materials and proceed with repairing her residence, when he received money owed to him by others.

Ms. Castle confirmed that Mr. Mercadel did complete some of the work called for in the contract including replacing windows, rewiring the house, removing a bay window, reworking doorways, replacing 10% of damaged weatherboards, replacing fence boards, installing insulation, installing a bathtub, and spraying the ceilings. However, Mr. Mercadel did not perform some of the work until two years after they entered into the contract. Additionally, although he did replace sections of sheetrock, she did not know whether he replaced the termite damage within these walls as required by the contract. She stated that some of the work he did not complete included replacing damaged flooring, installing new plumbing fixtures, replacing 90% of damaged weatherboards, and installing an electrical box. She agreed that Mr. Mercadel performed some work which was not included in the contract and that he should get credit for this work.

In Mr. Mercadel’s testimony, he confirmed that Ms. Castle paid him $35,000 and gave him an additional $8,000 for the air conditioning unit. He claims to have completed $30,000 worth of work on the home and justified the other $5,000 as additional work performed outside of the terms of the contract. He testified that he had to rewire the house a second time after someone broke into Ms. Castle’s home and ripped wiring out of the house and that Ms. Castle told him she would get money from her insurance company for this work. He said that the rewiring was not included in the contract and that he charged Ms. Castle $3,500 for it. He said he performed other work for the remaining $1,500, including insulation, sheetrock, painting the entire house, carpeting, ceramic tile, and installing a tub.

| RAlthough Mr. Mercadel admitted that installation of the cabinets was provided for by the contract, they were not installed because he had exceeded his budget by wiring her house twice and installing insulation and sheetrock in the house. Instead, he offered to install the cabinets if Ms. Castle purchases them herself. He also testified that due to termite damage he had to replace all of the weatherboards on the front of the house and reframe the entire front wall.

Mr. Mercadel testified that Ms. Castle told him to forget about the air conditioning unit. He claims that she wanted him to remove a large tree that had fallen from her back yard onto her neighbor’s property instead. He said that pursuant to a verbal agreement between them the $3,000 was compensation for removing the large fallen tree.

MOTION TO WITHDRAW AS COUNSEL

Appellate counsel assigns as Mr. Merca-del’s sole assignment of error a request for a review of the record for patent errors. Counsel complied with the procedures outlined by Anders v. California, supra, as interpreted by this court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel found no trial court ruling that arguably supports the appeal. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. A copy of counsel’s brief was forwarded to Mr. Mercadel, and this court informed him that he had the right to file a brief in his own behalf. Mr. Mercadel subsequently filed a pro se brief raising four assignments of error.

TERRORS PATENT

A review of the record for errors patent reveals none. See, La.C.Cr. P. art. 920(2). Appellate counsel’s motion to withdraw is granted.

PRO SE ASSIGNMENTS OF ERROR

Mr. Mercadel raises the following assignments of error:

1. The evidence was insufficient to sustain his convictions for theft of $500.00 or more.
2. The trial judge committed reversible error in failing to recuse himself from the ease because of an alleged familial relationship with defense counsel.
3. The trial judge committed reversible error in failing to inform Mr. Merca-del of his right to conflict-free representation “subsequently to acknowledging his nephew’s enrollment in the instant cause of action, and prior to any and all further criminal proceedings.”
4. He received ineffective assistance of counsel.

SUFFICIENCY OF EVIDENCE

By this assignment of error, Mr. Mercadel asserts that the evidence presented at trial was insufficient to support his convictions for theft of $500.00 or more. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. Therefore, this assignment of error will be considered first.

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817, 820 (La.1987). The testimony of a |insingle witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996.

Mr. Mercadel was convicted in Count Two of theft of U.S. currency valued in an amount of $500 or more from Gloria Jackson, with the intent to permanently deprive her of that property, and in Count Four of theft of U.S. currency valued in an amount of $500 or more from Kim Castle, with the intent to permanently deprive her of that property, both violations of La. R.S. 14:67(A).

The crime of theft is defined by Louisiana Revised Statute 14:67(A), which provides in pertinent part:

A. Theft is the misappropriation or . taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Theft is a specific intent crime. The specific intent factor of the offense relates to permanently depriving the owner of whatever may be the subject of the misappropriation or taking. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” State v. Alvey, 2002-1741, pp. 6-7 (La.App. 4 Cir. 1/29/03), 839 So.2d 395, 400; La. R.S. 14:10(1); State v. Scott, 99-0241, p. 7 (La.App. 4 Cir. 1/5/00), 752 So.2d 255, 258-259. Specific intent need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Hebert, 2000-1052, p. 12 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050, writ denied, 2001-1804 (La.3/15/02), 811 So.2d 905.

Count Two — Gloria Jackson

In this count, Ms. Jackson and Mr. Mercadel agree that they entered into a contract whereby Mr. Mercadel was to rebuild Ms. Jackson’s home for $50,000. They also agree that Ms. Jackson gave Mr. Mercadel two checks totaling $26,000. It is undisputed that Mr. Mercadel, despite having secured the building permit, paying for architectural drawings, consulting with Ms. Jackson on the design of the residence, and beginning to construct a chain wall foundation for the home, never even completed the foundation for that building.

Mr. Mercadel contends that after beginning the work, he explained to Ms. Jackson that it would cost $28,000 for the foundation work and almost $50,000 on material to rough-frame the house. He gave no estimate as to how much it would cost for electrical, plumbing, insulation, roofing materials, and other work, on top of the $78,000 actual construction costs for the foundation and rough-framing of the residence. Mr. Mercadel testified that he stopped working on Ms. Jackson’s home when she refused to give him any more money. Mr. Mercadel admits that it took him approximately three months to perform the work that he actually completed, and that Ms. Jackson sought a return of money she gave him because he was not timely completing the work. Ms. Jackson testified that Mr. Mercadel agreed to return some money to her but never did.

Although Mr. Mercadel testified at trial that he wrote a letter to the Louisiana Department of Justice admitting that he “owed” Ms. Jackson $19,420, he denied that he actually owed her that amount. He stated that he spent almost $16,000 of the money she gave him. He never accounted for the remainder.

112Mr. Mercadel contends that the State failed to prove his intent to permanently deprive Ms. Jackson of the money. He argues that the State had to prove he had the specific intent to permanently deprive Ms. Jackson of $500 or more at the time he received the two checks totaling $26,000 from her, which was in a less-than-two-week period in late June 2007.

However, in State v. Langford, 483 So.2d 979, 985 (La.1986), the court stated that even one who takes another’s property intending only to use it temporarily before restoring it to its owner may nevertheless be guilty of larceny if he later changes his mind and decides not to return the property after all. Considering this principle set forth in Langford and the circumstances of the instant case, that Mr. Mercadel might have formed the specific intent to permanently deprive Ms. Jackson of U.S. currency valued in the amount of $500 or more at some point after receiving the two checks from her does not render the evidence insufficient to support his conviction. The evidence clearly establishes that Mr. Mercadel never returned any of the $26,000 to Ms. Jackson, even though, he admitted that he had only spent some $16,000 of it on construction costs at the point when she sought return of her money.

Viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded that, at the very least, Mr. Mercadel failed to repay Ms. Jackson a sum as small as $500 of the $26,000 she gave him as partial payment to construct her home, and thus found beyond a reasonable doubt that Mr. Merca-del misappropriated or took from Gloria Jackson U.S. currency valued at $500 or more, with the specific intent to deprive her of that currency.

There is no merit to this assignment of error.

113Count Four — Kim Castle

In Ms. Castle’s case, the trial court specifically found Mr. Mercadel guilty of theft of the $3,000 Ms. Castle gave him expressly for the purpose of purchasing an air conditioning unit to install in her home. This was outside of the contract between the two parties for the renovation of Ms. Castle’s home. The evidence established that Mr. Mercadel performed considerable work on Ms. Castle’s home pursuant to the original contract.

Mr. Jackson’s testimony about Mr. Mer-cadel’s request for a specific amount of money for an air-conditioning unit was very explicit. Testimony established that she sent him $8,000 and agreed to pay the remainder upon proof of installation. Upon arrival in New Orleans, she discovered that Mr. Mercadel was nowhere to be found and that the air conditioning unit was not even on the site, much less installed.

Mr. Mercadel testified that Ms. Castle told him to forget about the air conditioning unit, and that she wanted him to remove a large tree that had fallen from her back yard onto her neighbor’s property. He testified that she told him she would get an air conditioning unit from someone else at a cheaper price. Mr. Mercadel said his men cut up and removed the fallen tree and that he also completed the back fence. He said he considered the $3,000 as compensation for removing the large fallen tree. He said he performed this work pursuant to a verbal agreement.

The trial court expressly stated that he found Mr. Mercadel’s credibility lacking and expressly convicted defendant for theft of the $3,000 given to him by Ms. Castle for the air conditioning unit. Viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a | ^reasonable doubt that Mr. Mercadel misappropriated or took from Kim Castle U.S. currency valued in the amount of $500 or more, with the specific intent to deprive her of that currency.

There is no merit to this assignment of error.

RECUSAL AND CONFLICT-FREE REPRESENTATION

Because Mr. Mercadel’s arguments on these two assignments of error are essentially the same, we will consider them together. In these assignments, Mr. Merca-del asserts claims based on his supposition that his trial counsel, Clifton Stoutz, was the nephew of the trial court judge presiding over his case. Mr. Mercadel contends that the trial judge should have recused himself on his own motion pursuant to Louisiana Code of Criminal Procedure articles 671(A)(2) and 672 given this relationship.

First, any motion to recuse a trial judge must be brought, at the latest, prior to verdict or judgment. La.C.Cr.P. art. 674. No such motion was brought in this case and the issue was not raised in the trial court. As the issue is being raised for the first time here, it is untimely and can be dismissed as such. Recognizing however Mr. Mercadel’s claim that his counsel was ineffective and that he had a right to “conflict-free counsel,” we will address his recusal arguments.

Second, there is nothing in the record to support the allegation that trial counsel Clifton Stoutz is the nephew of Judge Marullo. Even if he was, the Code of Criminal Procedure does not require or warrant recusal in this instance. Assuming Mr. Stoutz is Judge Marullo’s nephew, whether by consanguinity (blood) or affinity (marriage), that relationship would be in the third degree. [ ^Louisiana Code of Criminal Procedure article 671(A)(2) requires recusal when the judge is related to an attorney employed in the cause within the second degree.

The only other grounds for recusal which could possibly exist here are found in Louisiana Code of Criminal Procedure article 671(A)(1) and (6) and Canon C(S) of the Code of Judicial Conduct. These provisions require recusal when the judge is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial; unable to conduct a fair and impartial trial for any reason at all; or when his impartiality might reasonably be questioned. Nothing in the record reflects any bias, prejudice or impartiality on the part of the trial judge in this case. The record further reflects that the trial judge conducted himself in a fair and impartial manner throughout these proceedings.

There is no merit to these assignments of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

In this assignment of error, Mr. Merca-del argues that his counsel was ineffective for a number of reasons:

• an alleged conflict of interest presented by the alleged familial relationship between the trial judge and Mr. Mer-cadel’s trial counsel and Mr. Merca-del’s right to conflict-free representation
• an alleged predetermined intent of trial counsel to have Mr. Mercadel plead guilty to the two counts remaining following trial
• allowing the trial to go forward as a bench trial over Mr. Mercadel’s objection
• the court’s predetermined guilt of Mr. Mercadel prior to trial
• failure of trial counsel to file for a post-verdict judgment of acquittal
• allowing Mr. Mercadel to plead guilty to two of the charged counts
• failing to object to the habitual offender bill of information
• failing to inform Mr. Mercadel of discussions at bench conferences and rulings by the court

|](iA claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La.9/6/00), 776 So.2d 396, 411, cert. denied, Miller v. Louisiana, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001); State v. Seiss, 428 So.2d 444, 449 (La.1983). Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Rubens, 2010-1114, pp. 58-59 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 66-67, writ denied, 2012-0374 (La.5/25/12), 90 So.3d 410, writ denied, State ex rel. Rubens v. State, 2012-0399 (La.10/12/12), 99 So.3d 37, cert. de nied, Rubens v. Louisiana, - U.S. -, 133 S.Ct. 1595, 185 L.Ed.2d 591 (2013).

In Rubens, this Court discussed the Strickland two-part test relating to an ineffective assistance of counsel claim stating that the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Miller, 2000-0218, p. 7 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 111; State v. Sparrow, 612 So.2d 191, 199 (La.App. 4th Cir.1992).

Mr. Mercadel first argues that his counsel’s performance was deficient in allowing the criminal proceedings to continue despite his alleged familial relationship with the trial judge. Mr. Mercadel further argues that his counsel failed to inform him of his right to “conflict-free representation.” As determined earlier in this opinion, even assuming the existence of such relationship, there was no necessity for recusal in this case. See La.C.Cr.P. art. 671(A)(2). Furthermore, the record does not reflect any deficient representation by trial counsel or conflict with the trial judge that can be attributed to such relationship. There is no merit to the ineffective assistance of counsel argument as to this claim.

Mr. Mercadel next argues that defense counsel’s performance was deficient when he “consulted with judge on predetermined [sic] isx [sic] (6) years [sic] sentence, indicating circumstantial evidence [sic] plea of guilty had always been counsel’s intention.” This argument relates to the two guilty pleas Mr. Mercadel entered as to Counts One and Six, for which he received sentences of six years at hard labor on each count, to run concurrently with the concurrent six-year sentences he received on his convictions in Counts Two and Four. The fact that defense counsel negotiated guilty pleas in Counts One and Six and respective six-year sentences, to run concurrently with the six-year sentences imposed for the convictions in Counts Two and Four, does not indicate that a plea of guilty had “always” been defense counsel’s intention.

Also, Mr. Mercadel does not argue that his sentences of six years on each of the two offenses to which he pleaded guilty were excessive. Each offense to which Mr. Mercadel pleaded guilty — Count One being theft of U.S. currency valued in an 11samount of $500 or more, and Count Six being the issuance of a worthless check in the amount of $1,032.50, violations of Louisiana Revised Statute 14:67(A) and Louisiana Revised Statute 14:71, respectively— provided, at the time the offenses were committed, for a sentence of imprisonment with or without hard labor of not more than ten years. Mr. Mercadel has failed to show that the plea agreements constituted deficient representation or prejudiced him in any way. Thus, there is no merit to his claim of ineffective assistance of counsel as to this claim.

Mr. Mercadel’s third alleged instance of ineffective assistance of counsel was defense counsel “allowing a bench trial” over his objection. Mr. Mercadel fails to show evidence that he objected to a bench trial. As a matter of fact, when the trial court emphatically directed him to make a decision as to whether he wanted a trial by judge or jury, the record reflects that Mr. Mercadel made an informed and voluntary choice of a judge trial after twice conferring with his trial counsel. There is no merit to this claim.

Mr. Mercadel asserts in this argument that pretrial proceedings allegedly indicated the trial court’s “predetermined judgment of guilty as charged.” Nothing in the record supports this statement. During a motion hearing involving Count Five, the theft count involving Francis Cambridge, the trial court engaged in a colloquy with Mr. Mercadel regarding his ability to repay money to this victim. As to Count Five, the trial court ultimately adjudicated Mr. Mercadel not guilty. The trial court also found Mr. Mercadel not guilty as to Count Three. Therefore, while the trial judge spoke very matter-of-factly to Mr. Mercadel about his ability to make repayment to the victims, the record does not reflect that the trial judge showed any partiality when it came to judging his guilt or innocence at trial. |19There is no merit to the argument that defense counsel’s performance was deficient in proceeding to a judge trial on Counts Two, Three, Four, & Five.

Mr. Mercadel next argues that defense counsel was deficient in failing to file a motion for a post-verdict judgment of acquittal pursuant to Louisiana Code of Criminal Procedure article 821. Mr. Mer-cadel alleges that the prosecution failed to prove that he possessed the requisite specific intent to deprive the victims in Counts Two and Four permanently of the U.S. currency in question. The issue of whether the evidence was sufficient to prove beyond a reasonable doubt that Mr. Mer-cadel possessed the specific intent to permanently deprive these victims of U.S. currency valued in the amount of $500 or more was discussed in Mr. Mercadel’s first pro se assignment of error, as to sufficiency of the evidence. Thus, the issue of whether or not defense counsel should have filed a motion for post-verdict judgment of acquittal to raise that sufficiency of the evidence issue in the trial court is moot. Mr. Mercadel fails to show he was prejudiced by defense counsel not filing a motion for post-verdict judgment of acquittal.

Defendant next argues that defense counsel’s performance was deficient in permitting him to plead guilty “when there were [sic] no setting of factual basis to constitute [sic] element of [sic] crime charged.” However, the trial court conducted a pretrial probable cause hearing as to these charges. At this hearing, testimony by investigators from the Orleans Parish District Attorney’s Office, one an active police officer, the other a retired police officer, set forth a factual basis for the two counts to which Mr. Mercadel pleaded guilty. See State v. Massey, 2012-0928, pp. 2-3 (La.App. 4 Cir. 12/5/12), 106 So.3d 644, 645-646 (pretrial motion hearing testimony of police officer set forth factual basis for the defendant’s guilty plea).

|2qAs to Count One, Retired New Orleans Police Officer Mason Spong, also an investigator with the Orleans Parish District Attorney’s Office, testified at the probable cause hearing, involving the theft of U.S. currency valued in an amount of $500 or more from Emory White. Mr. Spong, a licensed insurance adjuster, was qualified by the trial court as an expert in that field. Mr. Spong testified that he investigated the alleged theft in this count. He testified that Ms. White paid Mr. Mer-cadel approximately $5,500 to do remodeling and renovation work on her home. Mr. Spong said Mr. Mercadel was paid to wire Ms. White’s home, flush out her plumbing, replace and repair any pipes— gas or water — and obtain permits for the work. Mr. Spong testified that the only work performed by Mr. Mercadel was the wiring of Ms. White’s home, and he said that was done improperly.

Mr. Spong testified that there had been an oral agreement between Mr. Mercadel and Ms. White. He identified copies of three checks written by Ms. White to Mr. Mercadel, totaling $5,500. Mr. Spong estimated that the value of the services actually rendered would have been approximately $1,500 rather than the $5,500 paid. He also noted that a lot of that work had to be redone. He conservatively estimated that $3,500 worth of work remained to be done. His testimony established probable cause for the charge of theft in that Mr. Merca-del failed to render services valued at over $500.

As to Count Six, issuing a worthless check to Cajun Concrete, New Orleans Police Department Detective Michael Kitchens, assigned as an investigator with the Orleans Parish District Attorney’s Office Economic Crime Unit, testified that he received a copy of a check Mr. Mercadel allegedly wrote to Cajun Concrete, as charged in the bill of information, and a copy of Mr. Mercadel’s driver’s license. Det. Kitchens testified that both the victim and the District Attorney’s office sent | ai ten-day demand letters by certified mail to Mr. Mercadel and that Mr. Mercadel never responded to the District Attorney’s office to this demand. Det. Kitchens’ testimony established that despite Mr. Mer-cadel’s promise to make restitution to Cajun Concrete, he failed to do so. His testimony established probable cause for the charge of issuing a worthless check.

Considering the probable cause hearing testimony, there is no merit to Mr. Merca-del’s argument that defense counsel permitted him to plead guilty to Counts One and Six without a factual basis having been established for his commission of those offenses.

Mr. Mercadel next argues that his counsel’s performance was deficient in failing to object to the habitual offender bill of information which, he claims, set forth two predicate convictions from the same date. The habitual offender bill of information sets forth only one predicate/prior conviction, from 2003. However, Mr. Mercadel was charged as second-felony habitual offender as to the two counts of theft in the amount of $500 or more for which he was found guilty following the judge trial. Mr. Mercadel presumably is mistakenly referring to those two instant/“subsequent” convictions as predicate convictions, and this apparently is the basis of his complaint here.

It is perfectly acceptable for a trial court to adjudicate and sentence a defendant as a habitual offender for more than one conviction obtained on the same date. See State v. Shaw, 2006-2467, p. 20 (La.11/27/07), 969 So.2d 1233, 1245 (“There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode.”) Moreover, the habitual offender hearing transcript and minute | gentry from that date reflect that the trial court apparently found Mr. Mercadel a habitual offender only as to Count Two. There is no merit to this claim that counsel’s performance was deficient with regard to the habitual offender bill of information.

Finally, Mr. Mercadel makes a confusing assertion that his trial counsel was deficient in failing to inform him of discussions held at bench conferences and rulings made during them, “on opening motion, [sic] that was to be determined at trial, on value [sic], or agreement with [sic] trial judge and prosecution surrounding the six years [sic] deal, that the judge had threatened Appellant of [sic] changing his mind.” Mr. Mercadel fails to show any deficient representation by defense counsel with regard to this assertion.

There is no merit to any of Mr. Merca-del’s claims of ineffective assistance of counsel.

CONCLUSION

For the foregoing reasons, we grant appellate counsel’s motion to withdraw and affirm Mr. Mercadel’s convictions and sentences.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Mr. Mercadel said he unsuccessfully attempted to obtain money from Brad Pitt and Angelina Jolie, who were financing a number of homes in the Lower Ninth Ward of New Orleans.

      . See 10 La. Civ. L. Treatise, Successions And Donations § 2:3 (2d ed.).


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge. JENKINS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Otis LOCKETT.
    No. 2012-K-1561.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 24, 2013.

      Leon Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, New Orleans, LA, for Respondent/State of Louisiana.
    Jill Pasaquarella, Colin Reingold, Orleans Parish Public Defenders, New Orleans, LA, for Relator/Otis Lockett.
    (Court composed of Judge TERRI F. LOVE, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| jThis application for supervisory writ is before this court on remand from the Louisiana Supreme Court. The sole issue presented by this writ is whether the district court correctly denied the defendant’s motion to suppress evidence seized without a warrant from the vehicle in which he was riding as a front seat passenger.

STATEMENT OF THE CASE

On August 23, 2012, the State of Louisiana charged the defendant, Otis Lockett, with one count of being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1. At his arraignment, Otis Lockett pled not guilty to the charge. On October 11, 2012, the district court heard and denied Otis Lockett’s motion to suppress the evidence and found probable cause to substantiate the charges. From that ruling, Otis Lockett filed a writ application with this court. This court denied Otis Lockett’s writ, noting that “[i]n the event the Relator ultimately is convicted, he has an adequate remedy on appeal.” State v. Lockett, 12-1561 (La.App. 4 Cir. 1/2/13) (unpub.). The Louisiana Supreme Court granted Otis |2Lockett’s writ application and remanded to this court for “briefing, argument and opinion.” State v. Lockett, 13-0170 (La.4/1/13), 110 So.3d 133, 134 (mem.). On remand, we entertained oral and written argument from both sides. For the reasons that follow, we find no error in the district court’s denial of the motion to suppress and deny Otis Lock-ett’s writ.

STATEMENT OF THE FACTS

The testimony of Sergeant Daniel Anderson, a sixteen-year veteran of the New Orleans Police Department (“NOPD”) and the sole witness at the motion to suppress hearing, established the following facts. At about 10:30 p.m. on June 27, 2012, Sergeant Anderson was sitting alone in his patrol car in the parking lot of the Ideal Food Store, which is near the intersection of Canal and Galvez Streets. While sitting at that location, he noticed “a Pontiac traveling in the far left lane [of Canal Street] rolling at a very, very slow pace, with vehicles that were actually coming up on the bumper and going around the vehicle.” He also noticed that there were two occupants in the Pontiac — a driver and a front seat passenger — and that the Pontiac had a cracked windshield. Sergeant Anderson pulled behind the Pontiac and ran its license plate. He learned that it belonged to Frederick Lockett, who was identified as the driver of the vehicle and as the passenger’s (Otis Lockett’s) nephew.

Based on the traffic infractions, Sergeant Anderson decided to stop the Pontiac and activated his lights and siren. The driver of the Pontiac pulled over |sfrom the left lane to the right lane of Canal Street as if he was preparing to stop, but failed to come to an immediate stop. At that point, Sergeant Anderson directed his exterior spotlight on the Pontiac, which illuminated the entire interior of the vehicle. He observed that the passenger — Otis Lockett— was making “quite a bit of furtive movements.” He defined “furtive movements” to mean “actions that are uncommon actions that normal people would not initiate, especially during a traffic stop.” He described the passenger’s furtive movements as turning to the left and reaching to the backseat. On cross-examination, Sergeant Anderson explained:

A. The fact that he [Otis Lockett] turned to the left and reached to the backseat, to me that sends out signals. I am not sure if there are other occupants, people or what.
I have come up on cars and there are four occupants in there when I thought there was two.
I was unable to determine exactly what was going on there, and it did set off alarms.
To me that was very suspicious and unordinary activity, especially during a traffic stop.
# ⅝ ⅜ ⅜ ⅝ ⅜
Q. It sounds like what you saw was a passenger turn to the left and reach towards the back.
Is that fair?
A. I couldn’t see the reach.
It was what it appeared to be.
I wasn’t in the vehicle.
I was travelling behind.
I can only account for what I actually observed.
|4If it looked like he was reaching, did I see his hand reach back there, no I did not.
Q. Okay.
So you just saw the turn of the body?
A. The turning and the movement toward.
If I was in a vehicle and I was reaching to the back, that’s exactly what I would have done.
Q. Okay.
A. Even in my report, I notated that it appeared that he was reaching back there.
Q. Right.
And, so, other than the turning of the body and appearance like the passenger was reaching to the back, did you see any other movements that you would have characterized as furtive?
A. No.

Sergeant Anderson’s testimony was that he did not actually see Otis Lockett reach into the back seat, but Otis Lockett’s movements that he did see were consistent •with that action.

Sergeant Anderson further testified that the passenger’s furtive movements “heightened his alertness.” Given the passenger’s furtive movements coupled with the fact he was outnumbered (he was on patrol alone; the vehicle had two occupants), Sergeant Anderson contacted the dispatcher and requested backup assistance.

Once the Pontiac came to a complete stop, Sergeant Anderson, utilizing his public address system, ordered the driver to exit the vehicle. As the driver exited the vehicle, Sergeant Anderson told him to leave his driver’s door open for the | sofficer’s safety. The driver complied. As he approached the driver, Sergeant Anderson shined his flashlight into the vehicle and observed that the passenger was looking straight down and “doing something with his phone” — either talking or playing a game on it. While he was conversing with the driver right outside the driver’s door and waiting for his backup, Sergeant Anderson testified that he “kept and maintained a constant visual on [the passenger, Otis Lockett].” He stated that his suspicions were raised because the passenger “was moving around a little bit” in his seat and “was just continuously on his telephone” as if the officer was invisible. He noted in his report that Otis Lockett appeared nervous. Sergeant Anderson described Otis Lockett as wearing a long-sleeve hoodie with the hood up and long jeans, which he found odd considering it was during “the hot months in New Orleans.”

When the backup officers arrived, Sergeant Anderson directed the driver to the back of the vehicle. While one of the backup officers maintained contact with the driver, Sergeant Anderson and the other backup officer approached the passenger door and asked Otis Lockett to step out of the vehicle. Otis Lockett complied. The officers then directed Otis Lockett to the rear of the vehicle. With both the driver and passenger at the rear of the vehicle, Sergeant Anderson approached the passenger side of the vehicle and surveyed the inside of the vehicle. Explaining his actions, Sergeant Anderson testified:

I then went over to the passenger side of the vehicle and surveyed the inside. I was curious about the suspicious activity. Why he [Otis Lockett] was making the abrupt movements during a traffic stop.
| fAt that point, there was a small square plastic flexible lunch pail. It was closed, but it was unzipped. But, it wasn’t directly on the zip. And, I looked in and I seen silver and from experience dong proactive work for sixteen years, I knew it was a gun.
So at that point I looked, and I see a forty-five caliber weapon.

On cross-examination, Sergeant Anderson explained that he looked into the vehicle in the direct area where he had “observed the furtive movements, and that’s when the lunch box caught [his] ... eye.” He further explained that it was a four-door vehicle, that he opened the rear passenger door, and that the closed, but unzipped lunch box was sitting there “in the middle portion of the back seat, but slightly closer to the passenger side.” He still further explained that when he put his flash light on it he could see “something silver” that he determined to be a chrome colored weapon in the lunch box. Although there was food inside the lunch box, the gun was lying on top of the food. The gun was under the lid, but it was still visible as he looked into the vehicle. Sergeant Anderson lifted the lid to the lunch box, confirmed it was a handgun, and then exited the vehicle.

Sergeant Anderson walked to the back of the vehicle and asked both Frederick and Otis Lockett if there were any weapons or drugs in the vehicle. Both of them adamantly denied any knowledge of contraband in the vehicle. Sergeant Anderson then returned to the vehicle, retrieved the gun, and presented it to Frederick and Otis Lockett. Sergeant Anderson also advised them of their Miranda rights.

Frederick Lockett acted with disbelief when Sergeant Anderson showed him the gun. He acknowledged that the lunch box was his and stated that he brings his 17lunch in it to work every day; however, he denied knowing anything about the gun. Frederick Lockett stated that he had just picked up Otis Lockett on Washington Avenue. Frederick Lockett further stated that Otis Lockett made a movement. He stated that he did not know what Otis Lockett was doing, but he said he had watched him make a movement back. At the end of the investigation, Frederick Lockett gave a voluntary written statement as to what he had seen, which read: “I picked him up [Otis Lockett] and I did not observe any weapon on his person. When we were pulled over, I did see him reaching toward the back. I don’t know what or if he was reaching for.”

Otis Lockett identified Frederick Lock-ett as his nephew and confirmed that Frederick Lockett had just picked him up on Washington Avenue. Otis Lockett stated that he did not know why his nephew was driving so slowly. Otis Lockett denied knowing anything about the gun. Indeed, he told the officers that he was on parole for another five months (which proved to be correct) and that he therefore would not have a gun. Although Otis Lockett initially gave the officers a false first name and date of birth, he eventually provided his correct information. When the officers ran his real name, they discovered that Otis Lockett had several felony convictions. Frederick Lockett had none.

Sergeant Anderson testified that he ticketed Frederick Lockett for impeding the flow of traffic, for having a cracked windshield, and possibly for having an expired brake tag. After Mirandizing and interviewing both Frederick and Otis Lockett, Sergeant Anderson determined that Otis Lockett had placed the gun into | sthe lunch box. He thus arrested Otis Lockett for being a felon in possession of a firearm. The search incident to Otis Lockett’s arrest produced a pair of rubber gloves and a knit hat. Sergeant Anderson explained that he did not request that the gun be examined for fingerprints because it was determined that the surface of the gun was not suitable for processing prints.

The State introduced Frederick Lock-ett’s statement and certified documents of Otis Lockett’s prior armed robbery conviction.

DISCUSSION

Appellate courts review a district court’s factual findings under a deferential standard; whereas, legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751 (citing State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884). As noted by the Louisiana Supreme Court in State v. Thompson, 11-0915, pp. 13-14 (La.5/8/12), 93 So.3d 553, 563:

The analysis may be further broken down into the component parts of the trial court decision. ‘When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La.12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La.3/8/02); 811 So.2d 875.

Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581.

l9Both the federal and state constitutions protect a person’s reasonable expectation of privacy even when an occupant of a vehicle. Both the federal and state constitutions prohibit unreasonable searches and seizures; a warrantless search and seizure is presumed to be unreasonable. State v. Bridges, 11-1666, p. 5 (La.App. 4 Cir. 11/28/12), 104 So.3d 657, 661-62 (citing State v. Thucos, 390 So.2d 1281, 1286 (La.1980)). The State has the burden of proving that any evidence seized without a warrant was lawfully seized. La.C.Cr.P. art. 703 D; see Wells, supra. In order to justify a warrantless search, the State must show that the search falls within one of the narrowly drawn exceptions to the warrant requirement. See State v. Barrett, 408 So.2d 903, 904 (La.1981).

In moving to suppress the evidence, Otis Lockett challenges neither the initial stop of the vehicle nor the officer’s command to exit the vehicle. Rather, he challenges the legality of Sergeant Anderson’s warrantless entry into the vehicle and his seizure of the weapon found in the lunch box. He contends that none of the exceptions to the warrant requirement applies here. More precisely, he identifies four potential exceptions — the automobile exception, the plain view exception, the search incident to arrest, and the protective Terry sweep exception — and contends that none of these exceptions applies here. The State counters that the officer had the right to conduct a protective Terry sweep of the area in which he observed Otis Lockett reach during the traffic stop. Stated otherwise, the State’s position is that |10the protective Terry sweep exception applies here. In ordered to decide the issue presented, we review the four exceptions cited by Otis Lockett.

Under the automobile exception, if Sergeant Anderson had probable cause to believe that the vehicle contained contraband when he opened the vehicle door, a warrantless search of the vehicle would have been justified. State v. Anderson, 06-1031, p. 5 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 547-48; see also Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Adams, 04-2177 (La.App. 4 Cir. 6/29/05), 909 So.2d 5. As Otis Lockett correctly contends, such was not the case here.

The plain view exception requires that an officer have a prior justification for being in an area where he observes an object that is “immediately apparent” to him without close inspection as contraband. State v. Jones, 02-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205; see also State v. Smith, 96-2161 (La.App. 4 Cir. 6/3/98), 715 So.2d 547. When Sergeant Anderson opened the rear door to the vehicle and shined his light inside, he saw part of a gun lying inside a lunch box. As the State points out, “[w]hen the sergeant opened the rear door of the vehicle to look into the backseat, he observed the firearm in plain view.” Nonetheless, as lnOtis Lockett contends, this exception alone did not justify the search because Sergeant Anderson had to open the vehicle door to view the lunch box. Thus, the crucial element in deciding whether the plain view exception applies is whether Sergeant Anderson had a prior justification for opening the door and looking inside the vehicle. (As discussed below, because we conclude that the protective Terry sweep exception applies here, Sergeant Anderson had a prior justification.)

The search incident to an arrest exception does not apply here because neither the driver nor the passenger (Otis Lock-ett) was under arrest when Sergeant Anderson opened the vehicle door.

The protective Terry sweep exception is based on the Supreme Court’s holding in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), that:

“[ Once a valid Terry stop of the vehicle occurs] the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”

Long, 463 U.S. at 1049-50, 103 S.Ct. at 3481 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). Under the protective Terry sweep exception, an officer may search the vehicle if the officer reasonably believes that a prior occupant of the vehicle is dangerous and possibly may gain access to weapons. As Justice Sealia noted in his concurrence in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), “[i]n the no-arrest case, the possibility of access to weapons in the vehicle |12always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Gant, 556 U.S. at 352, 129 S.Ct. at 1724 (Scalia, J., concurring).

The Louisiana Legislature has codified the requirements for a Terry search in La.C.Cr.P. art. 215.1, which provides:

When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

The jurisprudence has held that the reasonableness of a Terry search is governed by an objective standard. State v. Dumas, 00-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81-82. This objective standard “requires only that an officer establish a ‘substantial possibility’ of danger existed, not that it was more probable than not that the detained individual was armed and dangerous.” State v. Mulder, 11-0424, p. 8 (La.App. 4 Cir. 10/19/11), 76 So.3d 1241, 1247 (citing State v. Hunter, 375 So.2d 99, 102 (La.1979)).

The jurisprudence has recognized that if an officer has at least a reasonable suspicion to stop a vehicle and an occupant of the vehicle makes furtive movements during the stop, as if attempting to conceal an object, the officer has the right to conduct a limited protective sweep of the vehicle. See Long, supra; Bridges, supra; State v. Dillon, 98-0861 (La.App. 4 Cir. 6/24/98), 719 So.2d 1064; State v. Davis, 612 So.2d 256 (La.App. 4th Cir.1992); State v. Williams, 489 So.2d 286 (La.App. 4th Cir.1986); State v. Archie, 477 So.2d 864 (La.App. 4th Cir.1985); State v. Carver, 531 So.2d 551 (La.App. 5th Cir.1988). Summarizing the jurisprudence, this court in Bridges, supra, stated:

Ms. Bridges does not contest the reasonableness of the initial stop and detention. The question presented here is whether Officer Aubert was justified in searching under the passenger seat. In State v. Davis, 612 So.2d 256, 258 (La.App. 4 Cir.1992), the defendant was speeding, and as the police officers pulled next to him to wave him over to stop, they saw the defendant reach down and place something under the seat. The officers stopped the car, ordered the defendant out of the car, and searched under the seat, finding contraband. Id. Prior to reaching its decision in Davis, the Fourth Circuit reviewed State v. Archie, 477 So.2d 864, 865-866 (La.App. 4 Cir.1985), in which this Court ruled that an exaggerated motion as if to place something under the seat could easily lead a reasonably prudent man to believe that his safety or the safety of others was in danger and justified the search. Id. at 259. Based upon this Court’s holding in Archie, the Davis Court found that the police were justified in looking under the seat after the driver and passenger exited and thus upheld the search and seizure of the contraband. Id.
In the present case, Officer Aubert testified that after pulling the vehicle over, he observed Ms. Bridges motion as if she were putting something under the seat. Thus, like the police officers in Archie, 477 So.2d at 866, and Davis, 612 So.2d at 259, Officer Aubert and his partner could reasonably believe that Ms. Bridges was trying to hide or retrieve something, possibly a weapon. Accordingly, Officer Aubert was justified in ordering the occupants out of the car and searching under the passenger seat.

Bridges, 11-1666 at pp. 6-7, 104 So.3d at 661-62.

Otis Lockett argues that this line of jurisprudence, summarized in Bridges, supra, is factually distinguishable in that in those cases “the officers testified to more particularized factors than in this case, and in most [those cases] the officers also articulated a safety concern as the basis for the search.” He contends that in this case Sergeant Anderson never articulated any fear for his safety or a belief that weapons were present. Moreover, he contends that any such representation would 114not have been credible. He emphasizes that Sergeant Anderson testified only that Otis Lockett rotated in his car seat and appeared unusually occupied with his cell phone, neither of which provide justification for a Terry stop. We find this argument unpersuasive.

Contrary to Otis Lockett’s contention, Sergeant Anderson articulated that he had safety concerns before he opened the vehicle door and conducted the search. He testified that the passenger’s furtive movements coupled with the driver’s delay in stopping “heightened his alertness” and prompted him to call for backup assistance. While waiting for backup to arrive, which took only a few moments, he instructed the driver to exit the vehicle and to leave the driver’s door open for the officer’s safety. Although he allowed the passenger to remain in the vehicle until backup arrived, he maintained a constant lookout of the passenger’s actions during this period. Thus, Sergeant Anderson’s actions and testimony indicate that his limited search of the vehicle was prompted by his safety concerns.

As noted in Bridges, supra, this court consistently has held that an officer’s observation of furtive movements during a traffic stop provides a sufficient basis for a protective Terry sweep of the vehicle. In this case, Sergeant Anderson testified that the driver of the Pontiac did not immediately pull over when he activated his lights and siren. Before the driver finally stopped the vehicle, he could see the passenger — Otis Lockett — making furtive movements and reaching back and over to his left. Taken together, the presence of both of these circumstances justified Sergeant Anderson’s action of opening the door to look |1fiinside the Pontiac. Once inside, he saw in plain view the handle of the gun that was in the unzipped lunch box. Both Otis Lockett and his nephew denied that there were any weapons in the vehicle. Their denial that there was a gun in the vehicle gave Sergeant Anderson probable cause to believe that the gun was evidence of a crime; hence, he lawfully could seize it. The district court did not err by denying the motion to suppress the evidence.

CONCLUSION

Sergeant Anderson lawfully stopped the vehicle in which Otis Lockett was riding as a passenger. Sergeant Anderson lawfully removed both the passenger, Otis Lockett, and the driver, Otis Lockett’s nephew, from the vehicle. Otis Lockett’s furtive movements coupled with his nephew’s (the driver’s) delay in stopping the vehicle allowed Sergeant Anderson to open the vehicle’s door and look around the interior. Upon looking inside, he saw in plain view the handle of the gun lying inside the unzipped lunch box. When both Otis Lockett and his nephew denied there was a gun in the vehicle, Sergeant Anderson had probable cause to believe that the gun was evidence of a crime and to lawfully seized it. The district court thus did not err by denying Otis Lockett’s motion to suppress the evidence. Accordingly, the defendant’s application for supervisory writ is denied, and the stay is lifted.

WRIT DENIED; STAY LIFTED

JENKINS, J., respectfully dissents and assigns reasons.

JENKINS, J.,

respectfully dissents and assigns reasons.

hi dissent from the majority’s holding that the warrantless search of the vehicle was permissible based on the protective Terry sweep exception for officer safety. Based on totality of the facts and circumstances in this case and viewed in light of the reasonableness standard of the Fourth Amendment, I find that the officer did not articulate facts that would warrant a reasonably objective law enforcement officer to believe that the situation presented a substantial possibility of danger. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053; see also State v. Sims, 2002-2208 (La.6/27/03), 851 So.2d 1039; State v. Alaimo, 95-1044 (La.App. 4 Cir. 6/29/95), 657 So.2d 1102.

Sgt. Anderson stated that the totality of the circumstances that heightened his alertness were the slow speed of the vehicle, the cracked windshield and the furtive movements of the passenger. The officer articulated reasonable suspicion necessary to conduct an investigatory stop and to inquire further into the actions of the passenger, but the remainder of the circumstances do not reasonably or objectively heighten suspicion into a substantial threat or danger to the officer.

Sgt. Anderson’s suspicions were raised when he observed the vehicle moving at a very slow rate of speed, impeding the flow of traffic. Although the |2stop occurred at night, it was not a particularly late hour and it was not in a high crime area. Sgt. Anderson called for back-up as he was conducting the stop. He testified that during the course of the stop three additional police units came by the scene and he had two back-up officers with him when he ordered the defendant out of the vehicle.

When the driver pulled over and stopped, Sgt. Anderson did not wait for back-up to arrive before directing the driver to exit the vehicle while allowing the defendant to remain in the vehicle. When back-up arrived, Sgt. Anderson had one officer stay with the driver at the rear of the vehicle while he and the third officer directed Otis Lockett out and to stand at the rear of the vehicle. At no time before opening the rear door and conducting the warrantless search did the officers question the defendant to inquire about the slow speed of the car, his movements prior to the stop, or whether there might be any contraband in the vehicle.

The officers did not conduct a protective pat-down of either individual prior to the warrantless search and subsequent arrest. Once the passengers are outside of the vehicle, it is more likely and reasonable to believe that the officer’s safety could be threatened by the individual and any weapons he might have on his person.

The jurisprudence does not require that an officer testify that he believed he was in danger, but the officer must articulate specific facts and circumstances that would warrant a law enforcement officer’s objectively reasonable belief that there was a substantial possibility of danger. State v. Hunter, 375 So.2d 99 (La.1979); State v. Hughes, 99-2554 (La.App. 4 Cir. 5/31/00), 765 So.2d 423. There is always a possibility of danger while police are on patrol and conducting traffic stops, but the law requires that there must be objective facts and circumstances that would justify the officer in his belief that the particular situation posed a more substantial threat to officer safety. If this set of facts would be sufficient to justify |sa protective sweep of the vehicle, then it would seem to follow that any movements that an officer observes and deems to be unusual or suspicious during a traffic stop (regardless of other factors or surrounding circumstances) would be enough to allow for a warrantless protective sweep of the vehicle to discover contraband.

In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the U.S. Supreme Court discussed the exceptions to the warrant requirement for vehicle searches and rejected a broad interpretation of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) that would allow warrantless searches incident to arrest regardless of the possibility of access to the vehicle and its contents during the search. The Court stated,

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment — the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

Gant, 556 U.S. at 345, 129 S.Ct. at 1720.

Where an officer has conducted a stop based on a traffic infraction with no other evidence of criminal activity, no probable cause to arrest, a rule allowing a warrant-less search of a vehicle based on furtive movements during a stop creates a serious threat to the Fourth Amendment. A protective sweep of a vehicle must be reasonably and objectively based on the belief that the situation poses a substantial possibility of danger rather than on the officer’s curiosity in what he might discover in a vehicle that was stopped for a traffic infraction.

This Court’s holding and the interpretation of jurisprudence in this manner brings this Court too close to a per se rule that furtive movements by an occupant of a vehicle during a traffic stop justify a protective sweep of a vehicle to discover contraband.

14For the reasons above, I respectfully dissent. I would reverse the trial court’s October 11, 2012 judgment and grant the Motion to Suppress.

      . On cross-examination, Sergeant Anderson testified that although the Pontiac had a cracked windshield, the reason he decided to stop the vehicle was because it was traveling at a very slow speed.

      . Both were legal. Sergeant Anderson saw the vehicle impeding traffic as it proceeded very slowly down Canal Street in the left lane, causing other vehicles to drive around it. He also observed that the vehicle had a cracked windshield. Sergeant Anderson therefore was justified in stopping the car for the traffic violations. Pursuant to this lawful stop, he was allowed to order both the driver, Frederick Lockett, and the passenger, Otis Lockett, out of the car. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), and State v. Landry, 588 So.2d 345 (La.1991).

      . This court addressed the automobile exception in State v. Anderson, 06-1031, p. 5 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 547-48, stating:
      Pursuant to the "automobile exception”, there is no separate exigency requirement if there is probable cause to search a vehicle. U.S. v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”); see also State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330 (if a vehicle is readily mobile, there is no difference between seizing the car while obtaining a search warrant and immediately searching the vehicle without a warrant). Thus, if there is probable cause to search and the vehicle is readily mobile, even if stationary at the time the search proceeded, any evidence will be considered constitutionally seized, (citations omitted.)

      .The use of a light to illuminate the interior is not a search. See State v. Gervais, 546 So.2d 215, 218-19 (La.App. 4th Cir.1989).

      . Although in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court narrowed the scope of the exception for a search incident to an arrest, it expressly reaffirmed its holding in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), authorizing a protective Terry sweep.