author: CHARLES R. JONES, Chief Judge.

text:
    Damond HARRIS v. DEPARTMENT OF POLICE.
    No. 2012-CA-0701.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 2012.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for PlaintiffiAppellant.
    Richard F. Cortizas, City Attorney, Sharonda R. Williams, Chief of Litigation, Mary Katherine Taylor, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   CHARLES R. JONES, Chief Judge.

Ijn this appeal, Officer Damond Harris seeks review of the decision of- the Civil Service Commission (Commission), denying his appeal of the discipline imposed by the appointing authority, the New Orleans Police Department (NOPD). Finding that the Commission erred in denying the appeal of Officer Harris because the NOPD failed to provide Officer Harris meaningful notice of his disciplinary hearing, we vacate the decision of the Commission.

On December 29, 2010, the NOPD transmitted a disciplinary letter to Officer Harris. Therein, the NOPD indicated that it had determined Officer Harris violated the rule relative to professionalism, and the rule relative to social networking websites. As a result, the NOPD suspended Officer Harris for two days for each violation, for a total suspension of four days without pay.

Officer Harris appealed the suspension to the Commission, which appointed a hearing officer to receive testimony.

At the hearing, the NOPD called Officer Harris to testify. Officer Harris admitted that in January 2010, he responded to the Facebook post of a fellow officer, Officer William Torres. Officer Torres posted:

[t]hanks for the shots last night. Btw, You shouldn’t of cut your hair. Bowl hair cuts are for boys. Oh, tell your |sex g/f better not tell me s — , because we went out after your break up. A.M. you are a douchebag.

Officer Harris responded as follows:

WOW!!! Damn Will you steal a dykes girlfriend, stomp her like a german blitzkrieg, then the dykes get mad and now they are fighting over your caliente cho-rizo. Lmao what is this world coming to lmao.

Later in the same thread, Officer Harris posted another comment:

ATTENTION!!!! All dykes. Keep your dyke girlfriend away from Will Torres cause he will turn her straight and have her smoking pole by nights end. Lol.

Officer Harris testified that he did not know that Officer Torres was speaking of fellow officer Athena Monteleone, when Officer Torres utilized the initials, “A.M.” in his January 2010 post. Officer Harris testified that he was off-duty, engaging in banter with Officer Torres. Officer Harris testified that he often engaged in this sort of banter with his friends that he made while in the Marine Corps, such as Officer Torres. Officer Harris testified, he did not intend to direct his Facebook comments at any individual person. At the time of the Facebook quote, Officer Harris testified that he did not know that Officer Torres had gone on a date with Officer Monteleone’s ex-girlfriend. Officer Harris testified that he has known Officer Torres for 15 years and that he was speaking generally as Officer Torres has a reputation for turning “gay girls straight.”

Officer Harris also testified that during his banter with Officer Torres, he did not identify himself as a police officer. Further, Officer Harris noted that he does not identify himself as a police officer on his Facebook page.

Officer Harris further testified that he did not intend any offense to Officer Mon-teleone, and that he, Officer Torres, and Officer Monteleone were all SWAT members at one time and became good friends. They had spent time in one |4another’s homes and engaged in teasing. Also, Officer Harris admitted that part of his teasing consisted of calling Officer Monteleone a “dyke”, noting that she teased him by calling him “gay boy” and “fag boy.” Officer Harris noted that Officer Monteleone is openly gay and used to tease the male officers by telling them “I’m going to take your girlfriend. You better watch yourself.”

Officer Harris testified that by early January 2010, Officers Torres and Montel-eone were no longer working with him as part of SWAT, and that he (Officer Harris) received an administrative notice to have no contact of a personal nature with Officer Monteleone.

The NOPD next called Sgt. Dan Anderson to testify. Sgt. Anderson testified that Officer Monteleone believed, that she was the “A.M." to whom Officer Torres referred and initiated a complaint. He further testified that the NOPD assigned him to investigate the matter, and that this particular investigation was unusual.

Sgt. Anderson testified that during the course of his investigation, he interviewed Officer Torres, who admitted that he was referencing Officer Monteleone when he used the initials “A.M.” in the Facebook post, but that Officer Torres testified that he did not intend to offend Officer Montel-eone. Sgt. Anderson testified that the Fa-cebook conversation was initially between Officer Torres and Angela Joanos. Sgt. Anderson testified that Officer Torres had a relationship with Ms. Joanos after Ms. Joanos and Officer Monteleone were no longer a couple. After Officer Torres posted the comments, Sgt. Anderson testified that Ms. Joanos informed Officer Monteleone about the Facebook comments. From there, Officer |5Monteleone emailed her chain of command requesting a meeting and testified that she was not comfortable returning to work until the matter was addressed..

Sgt. Anderson testified that he believed the use of the words “douchebag” and “dyke” in the Facebook comments were unprofessional. Sgt. Anderson noted that Officer Monteleone was insulted and felt threatened by the comments. Sgt. Anderson testified that Officer Monteleone felt uncomfortable at work over the Face-book comments.

After the hearing, the Commission issued a decision denying Officer Harris’ appeal, thus upholding the four-day suspension meted out by the NOPD. From that denial, Officer Harris filed the instant motion for appeal.

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 04-1888, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service |fiemployees is only against firing (or other discipline) without cause. La. Const, art. X, § 12; Cornelius v. Dept. of Police, 07-1257, 07-1258, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 07-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095.

As we find it to be dispositive of the case, we first address the second assignment of error of Officer Harris. In that assignment of error, Officer Harris alleged that his due process rights were violated as the pre-disciplinary hearing was held on the same date that Officer Harris received notice of the pre-disciplin-ary hearing.

In response, the NOPD averred that Officer Harris.failed to raise this argument before the Commission, and that Officer Harris was prohibited from raising the argument on appeal. Further, the NOPD argued that due process was satisfied as Officer Harris received notice of the charges against him on March 8, 2010.

|7Generally, appellate courts will only review issues which were submitted to the district court. Uniform Rules — Courts of Appeal, Rule 1-3. However, appellate courts may review issues which were not submitted to the district court when the interest of justice clearly requires it to do so. Uniform Rules — Courts of Appeal, Rule 1-3.

In support of his argument that the interest of justice requires this Court to review his due process argument, Officer Harris cited Maurello v. DHHR, Office of Mgmt. Finance, 510 So.2d 458 (La.App. 1 Cir.1987). Therein, Ms. Maurello raised a due process argument for the first time on appeal. The court addressed the due process argument stating, “[b]ecause of the importance of assuring that Ms. Maurello’s fundamental constitutional due process rights are met, we will entertain her challenge of the termination procedure used by DHHR.” Id., 510 So.2d at 460. We agree that the interest of justice clearly requires us to review the issue of whether the due process rights of Officer Harris were violated.

Both the U.S; Constitution and the Louisiana Constitution provide that a person may not be deprived of “life, liberty, or property without due process of law.” U.S. Const, amend. XIV, La. Const. Art. I, § 2. In Reed v. Department of Police, 06-1498, 06-1500, 06-1647, 07-0171, 07-0360, 07-0361, 07-0364, 07-0366, 07-0367, 07-0368, 07-0796, 07-0797, pp. 3-4 (La.App. 4 Cir. 10/10/07), 967 So.2d 606, 609, we noted:

The provisions of the state constitution involving the Civil Service, Article X, § 1 et seq., and the Rules of the Commission are designed to secure adequate protection to the public career employee from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the Civil Service Rules is to guarantee the security and welfare of the public service. Sanders v. Department of Health & Human Resources, 388 So.2d 768 (La.1980) (emphasis | Radded). With this in mind, it is clear that tenure or classified civil service status is a property right within the meaning of Article I, § 2 of our constitution, a prerequisite to a due process challenge. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980). Under our constitution and the Civil Service Rules, an employee who has gained classified permanent civil service status has an entitlement to his position, since he has already received the position, and applicable law guarantees him continued employment, save for some exceptions (i.e. disciplinary sanctions for cause). Cleveland Bd. of Educ. v. Loudermill, supra [470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ]; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Having concluded that a classified permanent employee enjoys a property right in maintaining his status, it is axiomatic that his position may not be changed or abolished without due process of law. Cleveland Bd. of Educ., supra. The question becomes what process is due.

Id., quoting Bell v. Dept. of Health and Human Res., 483 So.2d 945, 949-50 (La.1986).

Thus, Officer Harris enjoys a property right in maintaining his employment status.

Officer Harris, as a classified permanent employee, enjoys a property right in, and is entitled to, his position. ■ Further, applicable law guarantees him continued employment, which may not be changed without due process of law.

However, in addressing the question of procedural due process, we find that “[The] central meaning of procedural due process is well settled. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified.” Moore v. Ware, 01-3341, pp. 12-13 (La.2/25/03), 839 So.2d 940, 949, quoting Wilson v. City of New Orleans, 479 So.2d 891, 894 (La.1985). The Moore Court 19went on to note that “[c]orrelatively, this right to notice and opportunity must be extended at a meaningful time and in a meaningful manner.” Moore, 01-3341, p. 13, 839 So.2d at 949, citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

Officer Harris argued receiving notice of the disciplinary hearing date at the same time as the disciplinary hearing was not meaningful. By the plain language provided in the notice of the hearing date, the NOPD obviously agrees. The disciplinary hearing notification provides “APPENDIX 'A’ SHALL BE ISSUED TO AND SIGNED FOR BY THE ACCUSED EMPLOYEE AT LEAST FIVE (5) CALENDAR DAYS PRIOR TO THE DATE OF THE HEARING.” (Emphasis supplied in the original.). In this instance, the NOPD violated its own internal rules by providing Officer Harris notice of the disciplinary hearing date on the same day as the disciplinary hearing. We find the notice provided in this case was not extended in a meaningful time and manner as required by Moore.

For this reason, we vacate the decision of the Commission and set aside Officer Harris’ suspension. While we vacate the discipline based on the failure of the NOPD to comply with due process requirements, this opinion shall not preclude the NOPD and the Commission from reconsidering this matter after a meaningful notice and the opportunity to h (¡respond are provided to Officer Harris. We pre-termit discussion of the remaining assignments of error.

DECREE

For the foregoing reasons, the decision of the Civil Service Commission is vacated.

VACATED

      . The NOPD introduced the statement of Officer Harris taken on February 15, 2010. Therein, Officer Harris noted that Officer Torres also engaged in teasing with Officer Mon-teleone and others, and that they often called each other names, including "douche.”


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Wren ROBICHAUX v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS.
    No. 2012-CA-0265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2012.
    Rehearing Denied Oct. 24, 2012.
    Madeleine Slaughter-Young, Monroe, LA, for Plaintiff/Appellee.
    Francis B. Mulhall, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

| Jfhe Louisiana State Board of Practical Nurse Examiners (the “Board”), the defendant/appellant, appeals the judgment of the trial court granting the exception of prescription filed by the plaintiff/appellee, Wren Robichaux. After examining the record on appeal and applicable law, we reverse the judgment and remand the matter to the trial court for further proceedings.

The facts are not in dispute. Ms. Robi-chaux was admitted to the Practical Nursing Program at Louisiana Technical College, Delta Ouachita Campus (hereinafter LTC-DO) in August 2007. As part of the admission process, she completed a form entitled “Evaluation Form for Admission to an Approved Practical Nursing Program” (hereinafter “2007 evaluation form”); it was signed by her on 30 October 2007. Thereafter, the form was signed by her faculty advisor, Ava Stennett, R.N., who certified that the applicant had a health certificate from a licensed physician, and that the 2007 evaluation form was complete and accurate. |aThe health certificate, signed by Ms. Robichaux’s physician on 10 January 2007, indicated that the plaintiff had a long-term illness but was mentally, physically, and emotionally capable of handling the daily stressors and duties of a student or licensed nurse.

The 2007 evaluation form was forwarded to the Board for review; it was received on 14 January 2008 and reviewed on 20 February 2008. The Board took no action in response to its review of the 2007 evaluation form.

Ms. Robichaux was dismissed from the nursing program by her faculty advisor on 2 May 2008. Ms. Stennett sent a complaint via email to the Board five days later, notifying them that the plaintiff did not answer “yes” to Question No. 10 on the 2Ó07 evaluation form which stated:

Do you now have or have you ever had a physical, mental, or emotional condition that might affect your ability to practice as a student practical nurse or licensed practical nurse?

Because of this answer and some disciplinary matters, Ms. Robichaux was dismissed from the program but had been placed in the class that was to begin in August 2008.

Ms. Robichaux was readmitted to the program in August 2008. As part of the admission process plaintiff completed another evaluation form (“2008 evaluation form”). The 2008 evaluation form was completed and signed by her on 25 August 2008 and, thereafter, signed by her new faculty advisor, Carmen Denton, who certified that the plaintiff had a health certificate from a licensed ^physician. The second health certificate, signed by her physician on 24 September 2008, again indicated that Ms. Robichaux had a long-term illness but was mentally, physically, and emotionally capable of handling the daily stressors and duties of a student or licensed nurse.

The 2008 evaluation form was forwarded to the Board. It was received on 17 September 2008 and reviewed five days later. The Board took no action in response to its review of the 2008 evaluation form.

Ms. Robichaux graduated from the program in May 2010 and applied to the Board on 25 May 2010 for permission to take the NCLEX exam for a license. Ms. Denton, her faculty advisor, sent the Board a letter dated 7 June 2010, stating that Ms. Robichaux had no disciplinary issues or excessive absenteeism related to illness in her second enrollment in the nursing program at LTC-DO.

On 1 June 2010, Ms. Robichaux received a letter from the Board, informing her that there were several issues to be addressed before her application could proceed. By letter dated 29 June 2010, the Board conditioned its permission to take the licensing test upon Ms. Robichaux accepting discipline in the form of a letter of reprimand for “being guilty of fraud or deceit in procuring or attempting to procure a license to practice practical nursing ...” and paying an assessment of $500.00 to the Board. The fraud and deceit was alleged to be due to her answering “No” to Question No. 10 on the 2007 and 2008 evaluation forms.

|4Ms. Robichaux refused to consent to the letter of reprimand and requested a hearing before the Board on 6 July 2010.

Formal charges were issued against Ms. Robichaux on 18 January 2011 and a hearing was scheduled before a hearing officer, a member of the Board. The hearing was held on 8 February 2011 where a record was made.

At the subsequent meeting of the full board on 17 June 2011, the hearing officer presented findings of fact and conclusions of law and a recommendation to the Board that applicant be given a letter of reprimand, assessed a hearing fee of $500.00, and be licensed upon proof that she passed the NCLEX exam.

The Board adopted the findings and conclusions, issuing an order that Ms. Robi-chaux be issued a letter of reprimand, be considered as eligible for licensure upon proof that she passed the NCLEX exam, and be assessed a hearing assessment fee of $500.00. The letter of reprimand was signed by the chairman of the Board and mailed to the plaintiff on 22 June 2011.

Ms. Robichaux applied for rehearing, which was denied. She declined to accept the discipline imposed by the Board.

Ms. Robichaux filed a petition for judicial review and/or appeal of the adverse administrative ruling. She alleged that the Board’s order should be reversed as the decision was in violation of La. R.S. 49:964, on the following, albeit non-exclusive, grounds:

ls(l) No violation of statutory provisions, to-wit: Louisiana Administrative Code Title 46 section 306 F; and La. R.S. 37:961, et seq.
(2) Arbitrary or capricious or characterized by abuse of discretion, and/or clearly unwarranted exercise of discretion.
(3) Not supported and sustainable by a preponderance of the evidence.
(4) In violation of Louisiana constitutional provisions to-wit: Article I, § 2, Deprivation of property without due process of law in violation of time limitations set under La. R.S. 37:21.

Ms. Robichaux also filed a motion to reverse the order of Board and a peremptory exception of prescription, arguing that the Board had initiated the proceedings against her more than six months after receipt of the 7 May 2008 complaint without notice to her and more than two years after receipt of the complaint, in violation of La. R.S. 37:21.

The Board filed an answer to the petition and opposed the exception of prescription. It argued that, under La. R.S. 37:969, it has no jurisdiction over students; the Board’s jurisdiction extends only to licensees and applicants for licensure. Therefore, the Board did not acquire jurisdiction over Ms. Robichaux until 25 May 2010, the date she applied for a license. The Board contended that |fionce it acquired jurisdiction over Ms. Robichaux, it could discipline her for the actions taken in 2007 and 2008.

The exception of prescription was heard on 16 December 2011, at which time the district court granted the exception. The judgment was signed on 18 January 2012. This timely appeal followed.

The issues before us are (1) whether the Board had the authority to initiate proceedings against Ms. Robichaux in the first place and (2) whether the trial court correctly granted the exception of prescription. We address the exception of no right of action first.

The Board contends that its authority over Ms. Robichaux did not attach until 25 May 2010, the date she submitted her application for licensure to it. As such, the Board argues that it acted timely within the limits set forth in La. R.S. 37:21. The basis of its authority, it asserts, is found in La. R.S. 37:969 A(3)-(4), which state:

§ 969. Duties and powers of the board
A. The board shall:
(3) Examine and license qualified applicants, and renew licenses; and
(4) Conduct hearings upon charges calling for discipline of a licensee, or for revocation, denial or suspension of a license issued or applied for under this Part upon proof that the person:
(a) Is guilty of fraud or deceit in procuring or attempting to procure a license to practice practical nursing; or
(b) Is guilty of a crime; or
(c) Is unfit, or incompetent by reason of negligence, habit, or other causes; or
|7(d) Is habitually intemperate or is addicted to the use of habit forming drugs; or
(e) Is mentally incompetent; or
(f) Is guilty of unprofessional conduct; or
(g) Has violated any provisions of this Part. [Emphasis supplied.]

Thus, the Board is specifically authorized to conduct hearings for the denial of a license that has been applied for, when it has allegedly received proof that an applicant for a license falls under one or more of the categories listed above. Clearly, if the Board allegedly has proof that an applicant for a license has, as in this case, committed some kind of fraud or deceit in attempting to procure that license, it must relate to acts committed before the Board was authorized to act.

Ms. Robichaux relies on Hemphill v. Louisiana State Board of Nursing, 97-1090 (La.App. 1 Cir. 6/29/98), 713 So.2d 1265, to support her argument that the Board does not have jurisdiction over her. In that case, the court held that the Louisiana State Board of Nursing could not discipline a nursing student when that student “has not applied for licensure and/or has already obtained a license” as that would be beyond the scope of the authority granted to the Board by the legislature. Id. at p. 6, 713 So.2d at 1268.

In the instant matter, once Ms. Robi-chaux applied for her nursing license, she placed herself squarely within the scope of the Board’s authority. Thus, we deny the exception of no right of action.

This finding, that the Board first obtained authority to discipline Ms. Robi-chaux when she filed her application on 25 May 2010, also mandates that the judgment granting the exception of prescription be reversed. The Board notified Ms. Robichaux in writing within one week after she filed that application, 1 June [ R2010, that there were several issues that “must be addressed” before her application could be further processed. In addition, the formal complaint was issued on 18 January 2011, well within the two-year and five-year limitations placed on the Board.

Pursuant to La. R.S. 37:21, limitations exist on disciplinary proceedings brought by professional or occupational boards and commissions. The statute states in pertinent part:

A. Unless a special law is applicable, no proceeding of any kind may be initiated by a professional or occupational board or commission as follows:
(3) If the nature of the complaint is based on fraud, no proceeding may be initiated after two years from discovery by the complainant.
(4)If the nature of the complaint is based on a license or rules violation, no proceeding may be initiated after five years from the date of the act or omission.
(5) In all cases where a complaint is filed with a professional or occupational board or commission, the board or commission shall notify the licensee in writing of the complaint within six months after the filing of the complaint or be barred from further action thereon. [Emphasis supplied.]

Therefore, we find that the proceedings initiated by the Board against Ms. Robi-chaux were timely and that the trial court erred when it granted the exception of prescription. Thus, we reverse the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

JUDGMENT REVERSED; EXCEPTION DENIED; REMANDED.

      . While the appeal was pending but before the briefing deadlines, Ms. Robichaux filed a peremptory exception of no right of action with this court. The basis of the exception was that the Board had no legal authority to file the initial formal hearing notice against her because it has no authority over an individual who has not already obtained a license to practice as a nurse, relying on Hemphill v. Louisiana State Board of Nursing, 97-1090 (La.App. 1 Cir. 6/29/98), 713 So.2d 1265. Both peremptory exceptions are addressed, infra.

      . Ms. Robichaux’s medical records indicate she has a seizure disorder that was being successfully treated.

      . These issues included circumstances of a previous arrest, disrespect of an instructor and tardiness while in school, the reported seizure activity, and why Ms. Robichaux failed to report the medical condition on either of her evaluation forms. The Board later discovered that Ms. Robichaux also failed to disclose a barber's license for which she had applied prior to nursing school on the 2007 and 2008 evaluation forms.

      . See note 3, supra.


author: AMY, Judge.

text:
    STATE of Louisiana v. Ronald LAZARO.
    No. 12-134.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.

      John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Ronald Lazaro.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges. '
   AMY, Judge.

| iThe defendant was charged with attempted first degree murder, aggravated burglary, and obstruction of justice. After a trial, the jury returned a verdict of not guilty on the attempted first degree murder charge and verdicts of guilty with regard to the aggravated burglary and obstruction of justice charges. The trial court sentenced the defendant to eighteen years in the custody of the Department of Corrections ■ for the aggravated burglary conviction and two years in the custody of the Department of Corrections for the obstruction of justice conviction. The trial court also ordered that the sentences be served concurrently. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, the victim, Marcus Wade, returned home while a burglary was still in progress. According to Mr. Wade’s testimony, once he realized that something was wrong and that someone else was in the house, he went outside and called 9-1-1. Two men, one in a white hoodie and the other in a black hoodie, fled the house. Mr. Wade testified that the man wearing a black hoodie pulled out a gun and fired several shots at him. After the men were picked up by a car, Mr. Wade gave the 9-1-1 operator a description of the vehicle. Deputy Christopher Wilrye of the Calcasieu Parish Sheriffs Office testified that he responded to the call and that, shortly thereafter, he saw a vehicle matching that description. According to Deputy Wilrye, after he signaled the vehicle to stop, the rear passenger door opened and he saw some items being thrown out. Although the car stopped and pulled over, it then got back on the roadway. Deputy Wilrye estimated that the vehicle stopped again after 100-150 yards.

The record indicates that a ring and two hoodies, one white and one black, were found inside the vehicle. Further, Detective Darrell Fontenot with the Calcasieu | ¡¡Parish Sheriffs Office testified that he located some jewelry, later identified as Mr. Wade’s wife’s jewelry, on the side of the road. Officers also recovered two backpacks containing electronic equipment and two handguns. Mr. Wade testified that three handguns were missing from his house — a .38 Smith and Wesson revolver, a .357 Smith and Wesson revolver, and a 9mm Smith and Wesson semi-automatic. The record indicates that only the .357 revolver and the 9mm semi-automatic were recovered.

All three of the men inside the vehicle were arrested, including the defendant, Ronald Lazaro, and two co-conspirators, Tony Washington and Zachary England. After waiving his rights, the defendant gave a statement to the police, admitting that he was involved in the burglary of the Wades’ house and that he had taken a handgun. The defendant also claimed that he heard shots but did not know who was shooting. Additionally, the defendant stated that he had worn a black hoodie.

Thereafter, the State charged the defendant with one count of attempted first degree murder, a violation of La.R.S. 14:27 and 14:30; one count of aggravated burglary, a violation of La.R.S. 14:60; and one count of obstruction of justice, a violation of La.R.S. 14:130.1(A)(1). After a trial, the jury returned a verdict of not guilty with regard to the attempted first degree murder charge and verdicts of guilty for the aggravated burglary and obstruction of justice charges.

The trial court conducted a sentencing hearing and imposed a sentence of two years in the custody of the Department of Corrections for the obstruction of justice charge and eighteen years in the custody of the Department of Corrections for the aggravated burglary charge. The trial court also ordered that the sentences run concurrently with each other. The defendant subsequently filed a pro se motion for reconsideration. The trial court denied that motion, finding that the defendant’s alleged grounds for reconsideration were not proper.

|sThe defendant now appeals, asserting as error that:

1. The prosecution failed to prove an essential element of Aggravated Burglary by not proving that Ronald Lazaro was armed with a dangerous weapon in the victim’s residence at the same time the victim was present in the residence.
2. The trial judge imposed an excessive sentence of 18 years imprisonment at Hard Labor against a 19-year old, first-time felony offender for Aggravated Battery [sic].

Discussion

Errors Patent

Pursuant to La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one such error insofar as the record does not indicate that the trial court advised the defendant of the prescriptive period for filing for post-conviction relief as is,required by La.Code Crim.P. art. 930.8. Thus, we direct the trial court to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion. Additionally, we direct the trial court to file written proof in the record that the defendant received the notice.

Sufficiency of the Evidence

The defendant’s first assignment of error addresses the sufficiency of the evidence. More specifically, the defendant contends that in order for his conviction for aggravated burglary to stand, he must have been armed with a dangerous weapon contemporaneously with the victim’s presence in the house. In the defendant’s view, the State only presented evidence that the defendant “armed himself’ when, after exiting the house, he allegedly pulled one of Mr. Wade’s stolen handguns out of a backpack and pointed it at the victim.

14When a defendant asserts several errors on appeal, and sufficiency of the evidence is one of the alleged errors, the appellate court should first address the sufficiency of the evidence allegation. State v. Jacobs, 07-1370 (La.App. 3 Cir. 6/5/08), 987 So.2d 286 (citing State v. Hearold, 603 So.2d 731 (La.1992)), writ denied, 08-2000 (La.4/3/09), 6 So.3d 769. In reviewing a sufficiency of the evidence claim,

the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d. 724, 726-27. Further, it is not the province of the appellate court to assess the credibility of witnesses or reweigh evidence. State v. Hollier, 09-1084 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, writ denied, 10-1037 (La.12/10/10), 51 So.3d 722.

Louisiana Revised Statutes 14:60 addresses the crime of aggravated burglary, stating, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

| sWe find no merit to the defendant’s contention that La.R.S. 14:60 requires the contemporaneous presence of both the armed perpetrator and the victim. As noted in the reporter’s comment to La.R.S. 14:60:

In cases involving a structure, water craft, or movable, however, it is necessary that someone be present when the crime is committed. If no one is present in such cases the crime can only be simple burglary. In the case of dwellings, inhabitation is all that is necessary; whether someone is actually there at the time of the crime is unimportant.

We observe that the supreme court addressed this question in State v. Hicks, 286 So.2d 331, 332 (La.1973), finding that “[i]t is not essential to the crime of aggravated burglary of an inhabited dwelling that a person be present in the dwelling at the time of the unauthorized entry.” See also State v. Hall, 35,151 (La.App. 2 Cir. 9/26/01), 796 So.2d 164.

Mr. Wade testified that he lived at the property and that he returned home to find his cabinets open and things strewn about the house. He also heard someone in the back bedroom and saw the shadow of a person in his son’s room. Mr. Wade then fled and called 9-1-1 to report a burglary. In his statement, the defendant admitted opening the door to Mr. Wade’s house and putting a handgun “along with other things [he] was taking” in a backpack. Accordingly, we find sufficient evidence in the record to support a conclusion that the defendant entered an inhabited dwelling without authorization with the intent to commit a theft therein.

As relevant to the facts of this case, La.R.S. 14:60(2) requires that “[a]fter entering [the accused] arms himself with a dangerous weapon.” The defendant contends that there is no evidence that he had already stolen a handgun while Mr. Wade was present in the house. However, as previously discussed, Mr. Wade’s presence in the house was not necessary for the completion of the crime. The defendant simply had to arm himself with a dangerous weapon at some point after entering in order to meet the requirements of La.R.S. 14:60(2). There is sufficient ^evidence in the record to support a conclusion that the defendant did so. Mr. Wade testified that all three of his handguns were missing, including two revolvers and a semi-automatic. In his statement, the defendant admitted taking a handgun and placing into a backpack. Further, Detective Fon-tenot testified that he recovered two backpacks from the road which contained, among other items, a semi-automatic pistol and a revolver.

Additionally, the defendant argues that he did not “arm himself until the stolen gun was removed from the backpack.” However, we find no merit in this contention. The defendant admitted that he stole at least one handgun while inside the Wades’ residence and placed it into a backpack, where it was readily available. We note that the firearm was accessible enough that, at least according to Mr. Wade’s testimony, the defendant was able to access it and shoot at Mr. Wade. Cont- pare State v. Goodley, 00-846 (La.App. 3 Cir. 12/11/02), 882 So.2d 1165 (Finding that the presence of a sawed-off shotgun in the trunk of an armed robbery defendant’s car was inadmissible “other crimes” evidence and did not show that the defendant was arming himself for the robbery, as it was inaccessible and there was no evidence that the shotgun ever left the trunk of the car).

When viewed in the light most favorable to the prosecution, the record contains sufficient evidence to prove that the defendant entered the Wades’ house, i.e., an inhabited dwelling, without authorization, and with the intent to commit a theft. Further, the record contains sufficient evidence to prove that, after entering, the defendant stole a handgun, thereby arming himself with a firearm. Accordingly, the facts in the record, when viewed in the light most favorable to the prosecution, are sufficient such that the jury could have found all of the essential elements of the crime 17of aggravated burglary, a violation of La.R.S. 14:60, beyond a reasonable doubt. See Lambert, 720 So.2d 724.

This assignment of error is without merit. •

Excessive Sentence

The defendant also asserts that his sentence for aggravated burglary is excessive. In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 8 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, a panel of this court addressed the review of excessive sentence claims, stating:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

A sentence within the statutory limits may still be reviewed for constitutional excessiveness. State v. Lewis, 09-783 (La.App. 5 Cir. 5/28/10), 43 So.3d 973 (citing State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1). Further, in considering whether a sentence is constitutionally excessive, the appellate court “may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

^Pursuant to La.R.S. 14:60, “[wjhoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.” The defendant was sentenced to eighteen years in the custody of the Department of Corrections on the aggravated burglary conviction and two years in the custody of the Department of Corrections on the obstruction of justice conviction. The trial court ordered that.the two sentences run concurrently.

The record indicates that the defendant was nineteen years old at the time of the offense and is considered a first felony offender. However, the trial court noted that, at the time of sentencing, the defendant had two drug possession charges pending and another drug possession charge that had been rejected. The trial court was especially concerned that- the defendant armed himself with a dangerous weapon while he was taking things from the victim’s home.

With regard to the nature of the crime, the record indicates that the defendant and an accomplice broke-into the Wades’ house. Another accomplice acted as the “getaway driver.” Once inside the house, the defendant took many items from Mr. Wade and his family, including firearms, electronics, and jewelry, which included several sentimental items. When Mr. Wade unexpectedly returned home, the burglars fled. According to Mr. Wade, as the defendant was exiting the house, he brandished one of the stolen handguns at Mr. Wade and fired several shots. The defendant and his accomplice were picked up by the getaway driver. Shortly thereafter, when law enforcement officers attempted to apprehend the trio, they began to throw the stolen goods out of the vehicle. Additionally, after law enforcement officers signaled the vehicle to pull over, one of the defendant’s accomplices initially stopped the vehicle, but then pulled back onto the roadway and continued driving. Mr. Wade testified that |9the defendant’s actions affected him and his family “not from that day, but probably [for] the rest of our li[ves.]”

With regard to the sentences imposed in comparable cases, in State v. Cormier, 534 So.2d 994 (La.App. 3 Cir.1988), writ denied, 587 So.2d 691 (La.1991), a nineteen-year-old first felony offender with a history of drug problems was sentenced to twenty years for aggravated burglary after breaking into his great-grandmother’s house and attacking her with a hatchet when he found no money therein. A panel of this court found no error in the defendant’s sentence. Further, although the defendant in State v. Robinson, 01-1458 (La.App. 4 Cir. 4/24/02), 818 So.2d 246, writ denied, 02-2064 (La.6/20/03), 847 So.2d 1222, was a nineteen-year-old second felony offender, the fourth circuit found that the defendant’s habitual offender sentence of fifty years was not excessive considering that the defendant and an accomplice forced their way into an elderly widow’s home, pushed her into chair, and forcibly removed her wedding ring. Similarly, in State v. Jackson, 34,378 (La.App. 2 Cir. 2/28/01), 781 So.2d 705, writs denied, 01-1234, 01-1444 (La.3/15/02), 811 So.2d 898-99, a second felony offender was convicted of aggravated burglary and sentenced to eighteen years after he entered a home and pointed a loaded weapon at one of the occupants. The second circuit found that the defendant’s sentence was not excessive.

Pursuant to this review, we find that the defendant’s sentence for aggravated burglary is not “so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals.” Barling, 779 So.2d at 1042. Although the defendant is nineteen and a first felony offender, he had several pending criminal charges at the time of sentencing. While the record indicates that the victim did not receive any physical | ininjuries, he testified that the defendant’s crime will affect him and his family probably for the rest of their lives. Further, the defendant’s sentence is within statutory limits and a review of similar cases indicates that the defendant’s sentence is not an outlier. Accordingly, the trial court did not abuse its great discretion in imposing this mid-range sentence for aggravated burglary, and we find no merit to the defendant’s contention that his sentence is unconstitutionally excessive.

DECREE

The convictions of the defendant, Ronald Lazaro, for one count of aggravated burglary and one count of obstruction of justice are affirmed. The defendant’s sentences are affirmed. The trial court is directed to notify the defendant of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion. Additionally, we direct the trial court to file written proof in the record that the defendant received the notice.

CONVICTIONS AND SENTENCES AFFIRMED WITH INSTRUCTIONS.

      . The defendant does not argue that there was insufficient evidence to support his conviction for obstruction of justice, a violation of La.R.S. 14:130.1(A)( 1). Therefore, we do not address the propriety of that conviction. Uniform Rules — Courts of Appeal, Rule 1-3.

      . Mr. Wade testified that the burglar in the black hoodie "pulled the pistol and pointed at rae and began to shoot.”

      . The defendant does not challenge his sentence for obstruction of justice. Accordingly, we do not address that issue. See Uniform Rules — Courts of Appeal, Rule 1-3.

      . We note that, at the sentencing,hearing, the trial court stated that "[t]he jury heard testimony, didn't believe that the State had proved beyond reasonable doubt that he fired the weapon. I am not sure why.”

      . The defendant in Robinson was initially sentenced to a twenty-five year term for the aggravated burglary charge, but was re-sentenced as a second offender under La.R.S. 15:529.1 to fifty years at hard labor.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Cesar MORALES.
    No. 12-KA-454.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Cesar Morales.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. For the following reasons, we affirm.

Procedural history

On February 13, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Cesar Morales, with possession of cocaine, in violation of La. R.S. 40:967(C). Trial of the matter occurred on May 2, 2012, wherein the six-person jury found him guilty as charged.

After waiving statutory delays, the trial judge sentenced defendant to two years imprisonment with the Department of Corrections, which was deferred “under 893.” The trial judge placed defendant on active probation for two years. On May 4, 2012, defendant filed a motion for appeal, which was granted by the court on May 7, 2012.

| ¿Facts

On January 20, 2012, Deputy Jessica Lee was on duty with the Second District Patrol Division of the Jefferson Parish Sheriffs Office, patrolling her usual area in Harvey, which included Orange Blossom Street and Tallow Tree Lane. Deputy Lee testified that the crime rate in this specific area is generally higher than most other areas of Jefferson Parish. Deputy Lee had personally responded to incidents of shootings, murders, aggravated batteries, burglaries, and narcotics crimes in this area.

As Deputy Lee patrolled Orange Blossom Street in her marked unit, she observed a blue vehicle parked in the 1100 block, on the opposite side of the street from her lane of travel. Deputy Lee testified that, as she approached the vehicle, she was travelling no more than five miles per hour. As she approached the blue vehicle head-on, her patrol vehicle’s headlights illuminated the car and she was able to observe one occupant in the front passenger seat. Deputy Lee did not recall seeing any other cars parked or bystanders waiting nearby.

According to Deputy Lee, once she made eye contact with the man in the blue vehicle, he slouched down into the passenger seat, which triggered her to believe that he was trying to hide. Deputy Lee stated that she suspected that the man might be committing a crime, such as vehicle burglary or drug possession.

To investigate, Deputy Lee stopped her vehicle across the street and, without drawing her weapon, approached the vehicle from the rear. As Deputy Lee stood near the vehicle’s trunk, she asked the man, in English, to exit the vehicle and, when he did not comply, she repeated the request in Spanish.

As Deputy Lee watched the man exit the vehicle, she saw him place, with his right hand, a clear plastic bag that contained smaller bags of white powder into |4a cavity in the door handle. Deputy Lee testified that, in her police experience, the packaging was consistent with narcotics packaging and she suspected that the white powder in the smaller bags was cocaine. Deputy Lee, who was patrolling alone, placed the man in handcuffs for officer safety while she inquired into the man’s identity.

When Deputy Lee searched the man’s name in the National Crime Information Center’s database, she learned that the man, defendant herein, was wanted for traffic violations. Deputy Lee immediately informed defendant that he was under arrest as a result of the attachment.

Before placing defendant in the backseat of her police unit, Deputy Lee searched defendant’s person. During that search, she found a small hand-rolled cigarette containing green vegetable matter, which appeared to be marijuana. Immediately after defendant was secured, Deputy Lee retrieved a medium-sized plastic bag containing six small plastic bags of white powder from the cavity in the passenger side door.

Ms. Jaslyn Powell, a forensic chemist with the Jefferson Parish Sheriffs Office accepted as an expert in the identification and analysis of controlled dangerous substances, testified that the six small bags of off-white powder tested positive for cocaine and the hand-rolled cigarette containing green vegetable matter tested positive for marijuana.

At trial, defendant testified that he was not hiding from Deputy Lee when he was slouching in his vehicle but rather he was using his cellular telephone to text. He denied that Deputy Lee found the bag of white powder on the passenger side of the vehicle; he testified that Deputy Lee found the bag of white powder in the driver’s side door. He also claimed that the bag belonged to his friend who had been driving but escaped into an apartment as Deputy Lee approached. Defendant |fialso admitted that the marijuana cigarette belonged to him although he claimed that the cigarette was in the vehicle’s ashtray, not on his person.

After hearing the testimony and evidence, the jury found defendant guilty as charged of possession of cocaine, in violation of La. R.S. 40:967(C). This appeal follows.

Law and Argument

In his sole assignment of error, defendant argues that the trial judge erred in denying his motion to suppress evidence. Defendant contends that the police officer ordered him to exit his vehicle without reasonable suspicion or probable cause because merely sliding down in the passenger’s seat of his legally parked vehicle was insufficient to warrant such an intrusion. Defendant claims that any contraband seized during the officer’s unjustified violation of defendant’s right to be left alone should be suppressed.

The State responds that the deputy did not need reasonable suspicion to approach defendant or to ask that defendant voluntarily step out of the vehicle. The State contends that the encounter, which was consensual, did not result in . a seizure.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. State v. Wolff, 09-508 (La.App. 5 Cir. 12/29/09); 30 So.3d 897, 901; La.C.Cr.P. art. 708(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id. A determination of credibility lies within the sound discretion of the trial court and should not be disturbed unless clearly contrary to the evidence. See State v. Vessell, 450 So.2d 938, 943 (La.1984). In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, the appellate |ficourt is not limited to the evidence adduced at the suppression hearing; it may also consider the evidence presented at trial. State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08); 993 So.2d 651, 656.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Wolff, 30 So.3d at 901. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Id.

Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops that permit officers to stop and interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08); 978 So.2d 1143, 1148, writs denied, 08-2291 (La.1/30/09); 999 So.2d 752 and 08-1115 (La.2/13/09); 999 So.2d 1140. The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. Ayche, supra.

Investigatory stops require reasonable suspicion of criminal activity. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04); 887 So.2d 581, 585. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Sam, 08-220 (La.App. 5 Cir. 6/19/08); 988 So.2d 765, 769, writ denied, 708—1984 (La.5/15/09); 8 So.3d 577. The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all of the circumstances known to the officer at the time of his challenged action. Id.

Police do not have to observe what they know to be criminal behavior before investigating. Instead, the requirement is that the officers have a reasonable suspicion of criminal activity. State v. Benjamin, 97-3065 (La.12/1/98); 722 So.2d 988, 989. While an individual’s mere presence in a high crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high crime area coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04); 877 So.2d 1073, 1076.

In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. Sam, 988 So.2d at 769. A reviewing court must take into account- the totality of circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes are factors that may support reasonable suspicion for an investigatory stop. Sam, 988 So.2d at 769-70.

Moreover, reasonable suspicion is not required every time an officer approaches a citizen in a public place. Police officers possess the same right as any citizen to approach an individual and ask a few questions. State v. Jackson, 00-8083 (La.3/15/02); 824 So.2d 1124, 1126 (per curiam); State v. Turner, 08-1188 (La.App. 5 Cir. 5/12/09); 13 So.3d 695, 699, writ denied, 09-2100 (La.8/18/10); 42 So.3d 400. A police officer’s action of merely approaching an individual does not implicate the protections of the Fourth Amendment. Turner, supra.

In the present case, the deputy walked to the trunk of the defendant’s vehicle and requested that defendant, who was seated in the passenger seat, exit the vehicle. Deputy Lee testified that she did not have her gun drawn when she made this request. She observed the narcotics he placed in the door as he exited. She placed defendant in handcuffs, for her safety, once she observed the alleged contraband.

Under the facts of this case, where the vehicle was parked and not actively stopped by the deputy using lights or sirens, where the deputy approached with her weapon holstered and only spoke to the defendant prior to observing the narcotics in defendant’s hand, Deputy Lee’s initial approach of this defendant did not implicate the protections of the Fourth Amendment nor require reasonable suspicion. See, State v. Hill, 01-1372 (La.App. 5 Cir. 5/15/01); 821 So.2d 79.

Furthermore, upon finding no intrusion during the initial encounter, we find that Deputy Lee did, in fact, have sufficient reasonable suspicion to conduct an investigatory stop of defendant under the circumstances of the present case. First, Deputy Lee was personally familiar with the “high crime” area where the defendant was found. Second, Deputy Lee observed defendant, alone, at night, in the passenger seat of a parked vehicle. Third, as she patrolled, defendant made eye contact then slouched in the seat to hide from her, which caused her to suspect a vehicle burglary or an illegal narcotics transaction.

Thus, after witnessing defendant’s evasive behavior upon seeing the police coupled with the “high crime” area, Deputy Lee was reasonable to suspect that this | ¡Individual was committing, had committed, or was about to commit an offense sufficient to justify an investigatory stop. See, State v. Huynh, 08-1628 (La.11/10/08); 993 So.2d 1198 (per curiam) (totality of the circumstances justified a brief investigate-. ry stop, where defendant, seated at the wheel of his parked car “slouched down in his seat, to not be recognized”); State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08); 993 So.2d 651 (individuals in “high crime” area at night attempting to hide when police approached was sufficient to justify investigatory stop).

Additionally, following the lawful stop, Deputy Lee was authorized to order defendant to exit his vehicle. See State v. Kelley, 05-1905 (La.7/10/06); 934 So.2d 51, 55 (per curiam), cert. denied, 549 U.S. 1065, 127 S.Ct. 691, 166 L.Ed.2d 536 (2006) (“Given an objective basis for detaining the defendant briefly to determine why he was ‘just there,’ the officers acted reasonably by requesting that he .step from the car, even in the absence of any particularized suspicions that he was armed and dangerous.”)

Further, police may lawfully seize evidence without a-warrant under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10); 33 So.3d 292, 300-01 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). “Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” State v. Leger, 05-0011 (La.7/10/06); 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Horton, 496 U.S. at 136-137, 110 S.Ct. at 2308). The “plain view” exception does not require a police officer to be certain that.the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Tate, 33 So.3d at 301.

In the present case, the deputy had a right to be standing outside the passenger door of the vehicle when she observed the cocaine, which was immediately apparent as contraband to her. Thus, the cocaine was lawfully seized pursuant to an exception to the warrant requirement. As such, we find that there was no error in the trial court’s denial of defendant’s motion to suppress evidence. Based on the foregoing, we find no merit in defendant’s assignment of error.

Error patent discussion

Pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent. We note that the record does not reflect that defendant was advised of the prescriptive period for filing an application for post-conviction relief pursuant to La. C.Cr.P. art. 930.8. Accordingly, by way of this opinion, defendant is advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08); 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09); 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08); 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09); 19 So.3d 473.

Conclusion

In conclusion, we find no error in the trial court’s denial of defendant’s motion to suppress evidence. Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED

      .Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06); 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07); 964 So.2d 351.

      . Presumably, the trial judge was referring to La.C.Cr.P. art. 893, which allows deferral of sentences with imposition of probation in felony cases.

      . The record contains a form reflecting defendant's probation requirements, including court costs and fines.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Casey ASTON.
    No. 12-KA-955.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 4, 2013.

      Paul D: Connick, Jr. Terry M. Bou-dreaux, District Attorney, Matthew Ca-plan, J. Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    George L. Higgins, III, Attorney at Law, Pineville,,, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|?Defendant appeals the denial of his motion to suppress the evidence. For the reasons that follow, we affirm.

Defendant, Casey Aston, was charged in a bill of information on October 29, 2008, •with, one count of possession of pornography involving juveniles in violation of La. R.S. 14:81.1(A)(3). He pled not guilty and filed several pretrial motions, including a motion to suppress evidence. A hearing on the motion to suppress was held on September 19, 2011, November 10, 2011, and January 9, 2012. The trial judge took the matter under advisement and subsequently denied the motion on March 1, 2012. Defendant filed a writ application with this Court challenging the trial court’s ruling, which was denied. State v. Aston, 12-279 (La.App. 5 Cir. 3/28/12) (unpublished writ disposition).

Thereafter, on May 29, 2012, the State amended the bill of information to one count of attempted possession of pornography involving juveniles in violation of La. R.S. 14:27 and 14:81.1(A)(3). On that same date, Defendant withdrew his |snot guilty plea and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of his motion to suppress evidence. In accordance with a plea agreement, the trial judge sentenced Defendant to 18 months at hard labor without benefit of parole, probation, or suspension of sentence.

FACTS

At the suppression hearing, Sergeant Terry Wright of the Bedford County Sheriffs Department in Virginia testified that he was assigned to the Internet Crimes Against Children Task Force. He initiated an investigation oh February 12, 2008, to identify and locate individuals who were trading images of child pornography over the internet using the “Gnutella Peer to Peer Network,” a file sharing system. To accomplish that task, Sgt. Wright used a software program called the “Wyoming Tool Kit,” which is not available for use by the general public. That software allowed Sgt. Wright to identify files as child pornography through a “secured hash algorithm” or “SHA” value, a mathematical code made up of a series of numbers and/or letters that act like a digital fingerprint of a file.

Once he set up the software, Sgt. Wright was presented with an “internet protocol” or “IP” address of a file in a computer that contained possible child pornographic images that were set to be shared with the public. Sgt. Wright explained that an IP address was assigned to a computer user by an internet service provider and that it functioned much like a physical address posted outside a house so the post office could deliver mail there. He learned that the internet service provider of the IP address at issue was Cox Communications. After issuing an administrative subpoena to Cox, Sgt. Wright learned that the subscriber for the IP address was- “Tom Aston” in Louisiana. At that point, Sgt. Wright forwarded the case to the Louisiana Attorney General’s Office.

|4Sgt. Wright testified that he was able to partially download the file in the instant case and that he recognized the “SHA” value of that file because he had seen it on previous occasions. When he viewed the file, which was a minute and a half long, it depicted a female child in diapers estimated to be under the age of .three, and a male subject, who took the child who was lying on a bed, removed her diaper, and after several attempts, penetrated the child’s vagina with his penis.

Randall Gohn, an investigator with the high tech crime unit of the Louisiana Attorney General’s Office, Department of Justice, testified that another investigator in his office, Gary Maranto, was given information from Bedford County in Virginia regarding an IP address that was leased in Louisiana and had been seen to have child pornography. Mr. Gohn supervised Mr. Maranto’s investigation. The complaint was reviewed, and the. file was found to be child pornography. They then located the address, which was 3100 Tennessee Avenue in Kenner, and verified that it was an inhabited dwelling that was currently occupied. At that point, they obtained a search warrant and executed it.

During the search, Defendant was found in his bedroom. He was advised of his rights, after which he gave a written statement. In his statement, Defendant admitted he had downloaded pornography, but that he had not “masturbated to anything younger than 16.” He stated that he “[djownloaded kiddie porn just to see ... what they really were.” Defendant also stated he had “downloaded younger, just to see though (youngest was 9).” He also described the search, terms he used to find child pornography, and he acknowledged that those files were in his shared folder. Defendant stated that no threats or promises were made to him for his statement. Additionally, Defendant signed a “Consent to Assume Online Identity and/or Search Online Accounts,” and he provided his us-ernames and passwords to investigators.

15At the conclusion of the hearing,' the trial court gave the parties time to brief their arguments. Defendant made the same arguments he makes on appeal; specifically, he argued that he had a reasonable expectation of privacy in the files on his personal computer, the administrative subpoena issued by the Commonwealth of Virginia was invalid because Louisiana citizens have expansive rights and a neutral magistrate did not “pass on the validity and probable cause prior to issuance” of the subpoena, and the actual search warrant should not have been issued because all the information in it was secondhand. The trial judge subsequently denied Defendant’s motion to suppress the evidence in its entirety.

DISCUSSION

In his sole assignment of error, Defendant contends the trial court erred in denying his motion to suppress all computer evidence. He maintains there were three separate searches and that all three were illegal. First, Defendant asserts that Sgt. Wright’s initial “search” of computers for possible child pornography was unlawful because he had a reasonable expectation of privacy in the electronic information stored on his computer. Second, Defendant contends the administrative subpoena issued by the Commonwealth of Virginia to Cox Communications for his subscriber information was unlawful because it was done without consent or probable cause. And, third, Defendant maintains that the actual search of his residence after investigators obtained a search warrant was unlawful because the search warrant was based solely on the word of Sgt. Wright, an out-of-state policeman, without an independent investigation by the Louisiana Attorney General’s Office.

Initially, it is noted that Defendant previously filed a writ application with this Court challenging the trial judge’s denial of the motion to suppress. This Court denied the writ “on the showing made.” State v. Aston, 12-279 (La.App. 5 Cir. 3/28/12) (unpublished writ disposition). The “showing” in Defendant’s writ application consisted of the argument contained in the writ application, the motion to suppress, the minute entry reflecting the ruling, the notice of intent to seek supervisory review, and the motion for stay.

On appeal, defendant makes the same arguments that he made in his writ application to this Court. The prior denial of a supervisory writ does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion. State v. Castleberry, 98-1388 (La.4/13/99); 758 So.2d 749, 755, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). The transcripts of the suppression hearing and the exhibits introduced during the hearing, which are a part of the appellate record, were not attached to Defendant’s writ application and, thus, were not previously considered. Thus, we do not find the “law of the case” doctrine applicable to this case.

In a hearing on a motion to suppress, the State bears the burden of establishing the admissibility of evidence seized without a warrant. State v. Butler, 01-907 (La.App. 5 Cir. 2/13/02); 812 So.2d 120, 124. The trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id.

Search of Computer by Sgt. Wright using Wyoming Tool Kit

Defendant . first argues that Sgt. Wright’s initial investigation where he “searched” computers for possible child pornography was unlawful because he did not give up any expected right of privacy in electronic information stored within his computer. The State responds that Defendant did not have a right to privacy in the contents of his computer since he made it available to the world by way of a peer-to-peer file-sharing network.

|7A defendant does not have Fourth Amendment privacy rights in computer files that he or she has shared on file-sharing networks such as Gnutella. In State v. Daigle, 11-1209 (La.App. 3 Cir. 5/2/12); 93 So.3d 657, writ denied, 12-1255 (La.11/16/12); 102 So.3d 30, the defendant pled guilty to one count of pornography with juveniles. On appeal, he argued that the detective violated his right to privacy by using the Wyoming Tool Kit to examine the SHA values for files the defendant freely shared with other “BearShare” clients. Citing federal jurisprudence, the Third Circuit found that the defendant had no Fourth Amendment privacy rights in computer files he shared on file sharing networks such as Gnutella, regardless of whether the defendant had logged onto the Gnutella network through clients such as “Lime[W]ire, Morpheus, BearShare, or Shareaza.” Id., 93 So.3d at 665.

Similarly, in State v. Dunham, 12-826 (La.App. 1 Cir. 12/21/12); 111 So.3d 1095, 1098-99, the defendant was found guilty of eight counts of pornography involving juveniles. On appeal, he argued that the use of technology unavailable to the public to search his computer constituted an illegal, warrantless search. However, citing Dai-gle, the First Circuit found that the defendant’s right to privacy was not violated by the trooper’s use of “GNU Watch” to examine the SHA values for files the defendant had already elected to freely share with other “LimeWire” users. [See also U.S. v. Stults, 575 F.3d 834, 843 (8th Cir.2009), cert. denied, 559 U.S. 915, 130 S.Ct. 1309, 175 L.Ed.2d 1093 (2010), where the court held a defendant has no reasonable expectation of privacy in files retrieved from his personal computer where the defendant installed and used a file-sharing program; and, U.S. v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008), cert. denied, 556 U.S. 1202, 129 S.Ct. 2037, 173 L.Ed.2d 1122 (2009), which held a defendant has no reasonable expectation of privacy in his computer when he installs and uses file-|sharing8 software, which opens his computer to anyone else with the same freely available program.]

Likewise, Defendant in the present case did not have a Fourth Amendment right to privacy in the contents of his computer, which he made available to the world by way of a peer-to-peer file-sharing network. Thus, we find Sgt. Wright’s search of computers using Wyoming Tool Kit was not illegal.

Administrative Subpoena

Defendant next argues the administrative subpoena issued by the Commonwealth of Virginia to Cox Communications for his subscriber information was unlawful because it was done without consent or probable cause. He asserts that the administrative subpoena issued by Virginia authorities to Cox “was not passed on by any judge,” and that Sgt. Wright obtained his subscriber information in a manner that would not be lawful in Louisiana.

At the suppression hearing, Sgt. Wright testified that he drafted an administrative subpoena to Cox Communications and received a response which stated that the subscriber for the IP address in question was “Tom Aston” in Louisiana, after which he forwarded the case to the Louisiana Attorney General’s Office. The administrative subpoena stated in pertinent part:

Your testimony and/or the production of the indicated records is required in the [sic] connection with an investigation or inquiry whereby there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of Code of Virginia
⅜ ⅜ ⅜ ⅜: $ ⅜
Pursuant to an ongoing child exploitation investigation being conducted by the Bedford County Sheriffs [sic] Office, you are hereby commanded to provide records or other information pertaining to a subscriber or customer of such service[.]

IsA defendant only has standing to challenge a subpoena issued without a showing of probable cause as an infringement of his Fourth Amendment right when he is able to claim a justifiable, reasonable, or legitimate expectation of privacy in the item seized. State v. Bone, 12-34 (La.App. 5 Cir. 9/11/12); 107 So.3d 49, 63, writ denied, 12-2229 (La.4/1/13); 110 So.3d 574, citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Defendant argues he had an expectation that the name and physical address related to his IP address would be kept private, based on a contract between him and Cox.

In United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000), the court found the defendant’s constitutional rights were not violated when the internet service provider divulged his subscriber information to the government because he had no reasonable expectation of privacy in the information. The court reasoned that when the defendant entered into an agreement for internet services with Road Runner, a high speed internet service provider, he knowingly revealed all information connected to his IP address. As such, the court explained that the defendant could not claim to have a Fourth Amendment privacy interest in his subscriber information.

Additionally, in U.S. v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002), the court expressly determined that a criminal defendant has no Fourth Amendment privacy interest in subscriber information given to an internet service provider. In explaining its ruling, the court cited Smith v. Maryland, 442 U.S. at 743-44, 99 S.Ct. at 2582, wherein the United States Supreme Court stated that “a person has no legitimate expectation of privacy in information he voluntarily turns over to a third party.” [See also, U.S. v. Perrine, 518 F.3d 1196, 1205 (10th Cir.2008) (the defendant has no. Fourth Amendment privacy expectation in the subscriber information he gave to his internet service providers); and U.S. v. Sherr, 400 F.Supp.2d 843, 848 (D.Md.2005) (“The courts that have already addressed this issue ... uniformly have found that individuals have no Fourth Amendment privacy interest in. subscriber information given to an ISP.”) ]

Accordingly, we find that Defendant did not have a reasonable expectation of privacy with respect to subscriber information he gave to Cox, his internet service provider.

Lack of Independent Investigation for Search Warrant

Finally, Defendant asserts that the actual search of his residence after investigators obtained a search warrant was unlawful because it was based on an invalid search warrant that was obtained solely on the word of Sgt. Wright, an out-of-state policeman, without an independent investigation by the Louisiana Attorney General’s Office.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09); 8 So.3d 80, 83, writ denied, 09-626 (La.11/25/09); 22 So.3d 170. If evidence is derived' from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Id. A defendant who is adversely affected may move to suppress evidence from the use at the trial on the merits on the ground that it was unconstitutionally obtained. La.C.Cr.P. art. 703(A).

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes, 08-719 (La.App. 5 Cir. 3/10/09); 10 So.3d 274, 278, writ denied, 09-816 (La.1/8/10); 24 So.3d 857. A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Lee, 05-2098 (La.1/16/08); 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Probable cause for the issuance of a search warrant exists when the facts and circumstances, within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place that is to be searched. Id. at 122 (quotations omitted).

The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green, 02-1022 (La.12/4/02); 831 So.2d 962, 969. An affidavit supporting a search warrant is presumed to be valid and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10); 34 So.3d 892, 899, writ denied, 10-705 (La.10/29/10); 48 So.3d 1097.

The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exists that evidence of a crime will be found in a particular place. Green, 831 So.2d at 969. The magistrate’s determination of probable cause to issue a search warrant is entitled to significant deference on review, and “marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983). Further, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Green, 831 So.2d at 969. Within these guidelines, courts should strive to uphold warrants in order to encourage them use by police officers. Id. The reviewing court must ensure that |12under the totality of the circumstances, the issuing magistrate had a “substantial basis” for concluding that probable cause existed. Id.

In the instant case, the application for search warrant set forth in pertinent part:

On or about March 27, 2008, Investigators of the Louisiana Attorney General’s Office, High Technology Crimes Unit, received information from Terry Wright, Investigator for the Bedford County Sheriffs Office, Bedford County, VA, that an unknown suspect had uploaded files containing images of child pornography to the internet. On February 2, 2008 .at 2:40 pm, Investigator Wright was successful in locating a computer used in sharing images of child pornography. The IP address linked to this computer was 72.200.25.21. Investigator Wright was able to determine the Internet Service Provider (ISP) to be Cox Communications. Wright was able to compare the file listing and the corresponding SHA 1 values to a list of SHA 1 values previously identified as depicted, confirmed, or suspected child pornography. The following SHA .l value is the file in the listing that Wright was able to capture in whole or part from the previously mentioned IP address:
2VNWKWDMRPXABXZHYBHX-STITVXA6VOHAF
Investigator Wright, upon examining the file, found it to be a video of what appears to be a white toddler female, less than 3 years of age, having her diaper changed, and then a male penetrates her vaginally with his penis. Wright concluded, based on his training and experience, that the search results indicate that a computer linked to the IP address, 72.200.25.21, was used in the distribution of child pornography, in violation of La.RS 14:81.1.
Through the subpoena process to Cox Communications for the IP Address 72.200.25.21, a return from Cox Communications provided the name and address of the person’s account assigned the IP address to be Tom Aston, 3100 Tennessee Ave., Kenner, Louisiana 70056-4740.
Information provided to this Investigator by Investigator Terry Wright revealed images of pornography involving Juveniles, connected to the address at 3100 Tennessee Ave., Kenner, Louisiana 70056-4740. [Emphasis as found in original.]

In U.S. v. Stults, 575 F.3d at 840, the court found the affidavit in support of the search warrant was based on probable cause. The court noted the information in the affidavit showed that through a peer-to-peer computer file sharing program, the agent was able to .access and download files directly from the defendant’s computer that contained child pornography images, and as a result, a.fair probability existed that contraband would be found at the defendant’s residence in his personal computer. Id., 575 F.3d at 843-44. Also, in U.S. v. Vosburgh, 602 F.3d 512, 526-27 (3rd Cir.2010), cert. denied, — U.S.-, 131 S.Ct. 1783, 179 L.Ed.2d 656 (2011), the court noted that several courts have held that evidence that the user of a computer employing a particular IP address possessed or transmitted child pornography can support a search warrant for the physical premises linked to that IP address.

In the present case, the information contained in the affidavit shows that Sgt. Wright located a computer used in sharing images of child pornography, compared the file listing and the corresponding SHA values to a list of SHA values previously identified as child pornography, examined the file and confirmed that it was child pornography, located the IP address linked to that computer, and determined that the IP address was assigned to “Tom Aston” at 3100 Tennessee Avenue in Kenner. Thus, we find the .search warrant at issue was based on probable cause.

Defendant argues that the affidavit in support of the search warrant was insufficient because it was based solely on Mr. Maranto’s summary of Sgt. Wright’s investigation, and not on Mr. Maranto’s own personal knowledge or investigation.

An affidavit may be based on hearsay, but “it must set forth the underlying circumstances and details sufficient to provide a factual basis by which the j ^magistrate might find reliable both the informant and the information given by him.” State v. Tomasetti, 381 So.2d 420, 422 (La.1980): In this case, the information in the affidavit was supplied by a named law enforcement officer, Sgt. Wright. Information supplied by a named law enforcement officer is sufficient to support the credibility of the informant. Id. Additionally, Mr. Maranto stated in the affidavit that information provided to him by Sgt. Wright revealed images of child pornography connected to that address, demonstrating he did in fact verify the information provided. Further, Mr. Gohn, Mr. Maranto’s supervisor, testified at the suppression hearing that the complaint from Sgt. Wright was taken and reviewed and child pornography was found. We find this information was sufficient to provide the requisite probable cause needed to issue the search warrant. Thus, we find no error in the trial court denying Defendant’s motion to suppress the evidence.

ERRORS PATENT

In accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), we have reviewed the record for errors patent. We note that the trial court did not impose the mandatory statutory fine. At the time of Defendant’s offense, the penalty for possession of pornography involving juveniles required a fine of “not more than ten thousand dollars.” La. R.S. 14:81.1(E)(1). Because Defendant was convicted of attempted possession of pornography involving juveniles, he faced a mandatory fine of not more than five thousand dollars. La. R.S. 14:27(D)(3).

Although this Court has held that a statute providing for a fine of “not more than” a specified amount does require the imposition of a fine, the matter is not | ififree from doubt. State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07); 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07); 969 So.2d 626. Additionally, we recognize that Defendant’s sentence resulted from a guilty plea. Mindful that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which a defendant makes no complaint and that result in disposition of the case favorable to the defendant, we decline to exercise our authority to correct the illegally lenient sentence. See State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09); 24 So.3d 235, 242.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . A defendant must be sentenced in accordance with the sentencing provisions in effect at the time of the commission of the offense. State v. Sugasti, 01-3407 (La.6/21/02); 820 So.2d 518, 520. We note that La. R.S. 14:81.1(E) has been amended since Defendant committed the offense and now provides for a mandatory fine of not more than fifty thousand dollars.


text:
    Oscar BOVIE, Cora Lee Songy, Melvin Bovie, Natalie Miller, Jannette La-Grange, Elizabeth Johnson, and Gene Bovie v. ST. JOHN THE BAPTIST PARISH, DEPT. OF STREETS AND ROADS.
    No. 13-CA-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 4, 2013.

      Elaine Appleberry, Attorney at Law, Gretna, Louisiana, for Plaintiffs/Appellants.
    Thomas FI Daley, District Attorney, Vercell Fiffie, Assistant District Attorney, Edgard, Louisiana, for Defendant/Appel-lee.
    .Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Plaintiffs appeal a judgment of the trial court sustaining an exception of res judica-ta. For the reasons that follow, we vacate the judgment and remand the matter for further proceedings.

FACTS & PROCEDURAL HISTORY

Plaintiffs, Cora Songy, Melvin Bovie, Jannette LaGrange, Elizabeth Johnson, Oscar Bovie, Gene Bovie and Natalie Miller, filed a Petition for Injunctive Relief and Damages on May 3, 2010 against St. John the Baptist Parish (“the Parish”), seeking to enjoin the Parish from constructing any roads or other structures on their property. Plaintiffs alleged they owned certain property located in that portion of Edgard, Louisiana known as “Ti-gerville.” Plaintiffs acknowledged that they previously lost a portion of the land to the Parish when the Parish acquired a sewer servitude, but asserted that they erected a barricade on that portion of the property for which a servitude does not exist to prevent the general ^public and the Parish from using their property without authorization. Plaintiffs maintained that they learned on April 27, 2010 that the Parish removed their barricades and trespassed on their property. They further alleged they learned the Parish intended to construct a road through their property. Accordingly, Plaintiffs sought an injunction and damages.

The Parish responded on August 24, 2012, by filing a Peremptory Exception of Res Judicata. Its exception consisted of one sentence that asserted Plaintiffs’ claims were barred by res judicata because the claims had been decided in a previous case in the 40th Judicial District Court, bearing docket number 50828. Although the exception indicated a copy of the petition and judgment rendered in the previous case was attached, the appellate record does not contain these attachments. Additionally, there is no indication a supporting memorandum of law was filed: Plaintiffs did not file an opposition to the exception.

A hearing on the exception was held on October 9, 2012, with only the Parish appearing. Although the record indicates Plaintiffs’ counsel was served, no one appeared on behalf of Plaintiffs. During the hearing, counsel for the Parish argued that Plaintiffs’ claims were the same claims that were decided in a 2006 judgment involving the same parties and the same property. Counsel also maintained the petitions were almost identical. The trial court expressed some concern and questioned counsel about differences in the parties in the original lawsuit and the present lawsuit, and whether the property addressed in the 2006 judgment was the same property at issue in the present case. Counsel for the Parish answered the trial court’s questions, but never offered any evidence in support of his position.

At the conclusion of the hearing, the trial court found that the 2006 judgment made a determination that the Parish acquired a servitude of passage by .tacit ^dedication of the road and maintained the Parish’s exception of res judicata. In its written judgment, the trial court stated that La. R.S. 13:4231 barred Plaintiffs from re-litigating causes of actions that were previously decided in a valid and final judgment rendered on June 15, 2006 in Cora Lee Songy, Rita Barre, Nathlie [sic] Miller, Jannette LaGrange, Melvin Bovie, Sr., Elizabeth Johnson, Oscar Bovie, Jr. and Gene A. Bovie v. Mrytle [sic] Roussell, Larry Roussell, Dylan Jackson, Denise Bo-vie, and the Parish of St. John the Baptist, 40th Judicial District Court, case number 50828, Division C. Plaintiffs appeal this judgment.

LAW & ANALYSIS

The doctrine of res judicata is found in La. R.S. 13:4231, and bars a subsequent action when the following elements are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause(s) of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause(s) of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La.2/25/03); 843 So.2d 1049, 1053. The party who urges an exception of res judi-cata bears the burden of proving its essential elements by a preponderance of the evidence. Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11); 59 So.3d 1274, 1277.

The doctrine of res judicata is stricti juris, and any doubt concerning the application of res judicata must be resolved against its application. Bourgeois v. A.P. Green Industries, Inc. 09-753 (La.App. 5 Cir. 3/23/10); 39 So.3d 654, 657, writ denied, 10-923 (La.6/25/10); 38 So.3d 341. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Morales v. Parish of Jefferson, 10-273 (La.App. 5 Cir. 11/9/10); 54 So.3d 669, 672.

[BWe find we cannot address the merits of the exception in this case because no evidence was introduced into the record at the hearing on the exception. When the grounds for a peremptory exception do not appear from the petition, evidence may be introduced to support or controvert any of the objections pleaded. La. C.C.P. art. 931. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Rudolph, 59 So.3d at 1277, quoting Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05); 917 So.2d 424, 428, n. 7.

In the present case, the grounds for the exception of res judicata do not appear from the petition, which merely states Plaintiffs’ claims against the Parish. Hence, the Parish should have introduced evidence to support its claim of res judica-ta. Insofar as the petition and judgment upon which the exception was based was allegedly attached to the exception, these attachments are not a part of the appellate record. As an appellate court, we are a court of record and may not review evidence that is not in the appellate record or receive new evidence. Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08); 983 So.2d 84, 88-89. Further, evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to pleadings and memoranda do not constitute evidence and cannot be considered. Id. Thus, although the Parish attaches a copy of the 2006 judgment to its appellee brief, we cannot consider it.

Although the trial court could take judicial notice of the prior judgment, which was rendered in its own district, such notice is insufficient evidence for this Court to affirm the sustaining of an exception of res judicata on appeal. See Bond v. Bond, 35,971 (La.App. 2 Cir. 4/3/02); 813 So.2d 1148, 1150. An essential element of res judicata is a valid and final judgment.- When the trial court simply halludes to a prior judgment in sustaining an exception of res judicata, but neither the record nor the judgment from the prior suit has been introduced as evidence, the defendant/exceptor fails to meet his burden of proof on the exception. Id., citing Louisiana Business College v. Crump, 474 So.2d 1366 (La.App. 2nd Cir.1985).

In the present case, because the grounds for the exception of res judicata do not appear from the petition, and there is no evidence in the record on which this Court can decide the exception, we cannot review the correctness of the trial court’s judgment in sustaining the exception. Therefore, we must vacate the judgment of the trial court; however, we note that the exception may be re-urged in the trial court in accordance with La. C.C.P. art. 928(B).

DECREE

For the foregoing reasons, we vacate the judgment sustaining the Parish’s exception of res judicata and remand the matter for further proceedings.

VACATED AND REMANDED