text:
    MIDLAND FUNDING, LLC v. James URRUTIA.
    No. 13-CA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Mia D. Etienne, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellee.
    James Urrutia, Metairie, LA, Defendant/Appellant in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

12Pefendant/appeIlant, James Urrutia, appeals a trial court grant of summary judgment in favor of plaintiff/appellee, Midland Funding, LLC (“Midland”). The matter at issue is a debt collection action, a suit alleging that Midland was the owner/assignee of Mr. Urrutia’s unpaid Sears MasterCard account with Citibank (South Dakota), N.A. The suit sought a judgment in Midland’s favor in the amount of $5,031.94, together with additional interest of 3.75% from October 6, 2009, and attorney’s fees in the amount of 25% of the total amount of both principal and interest owed, and all costs of the proceedings.

On appeal, Mr. Urrutia argues that the trial court erred in granting summary judgment in favor of Midland, asserting that a genuine issue of material fact remains as to whether Midland proved that it owned the account in question, in that the documentary evidence submitted by Midland does not prove its ownership of the account. He further argues that a genuine issue of material fact remains as to l3the amount of the debt. Thus, Mr. Urrutia argues that the mover for summary judgment, Midland, was not entitled to judgment as a matter of law.

Upon our de novo review of the record, we find no error in the trial court’s grant of summary judgment herein in favor of Midland. Accordingly, we affirm the trial court judgment under review.

PROCEDURAL HISTORY AND FACTS

Midland filed suit against Mr. Urrutia on May 14, 2010, alleging that it was the owner of all rights, title and interest in and to the account in question, being a particularly-described MasterCard account belonging to defendant, James Urrutia, the outstanding balance of which was $5,031.94, together with additional interest of 3.75% from October 6, 2009, and attorney’s fees in the amount of 25% of the total amount of both principal and interest owed, and all costs of the proceedings. Mr. Urrutia was identified by the last four digits of his Social Security number and his city of residence. The MasterCard account was identified by number. The petition claimed that Mr. Urrutia defaulted on the account and the balance sued for remained due after amicable demand had been made on Mr. Urrutia on April 5, 2010.

Mr. Urrutia, appearing in proper person, entered a general denial and claimed thirteen affirmative defenses. The parties then engaged in protracted discovery proceedings and pre-trial hearings, which ultimately resulted in the dismissal of all of Mr. Urrutia’s affirmative defenses as being unsupportable. Midland ultimately filed the subject motion for summary judgment on August 14, 2012, with a memorandum, supplemental memorandum, and documentation in support of its claim that it owned the account after buying it from Citibank, and that Mr. Urrutia had failed to support any of his claimed affirmative defenses with documentation or any other factual evidence. The trial court conducted a hearing |4on Midland’s motion for summary judgment on October 31, 2012, and by judgment signed on November 2, 2012, ruled in favor of Midland and against Mr. Urrutia as originally prayed for. This appeal followed.

On appeal, Mr. Urrutia argues that the trial court erred in granting summary judgment in favor of Midland, claiming that a genuine issue of material fact remains as to the ownership of the account, in that the trial court erred in considering the bill of sale attached to Midland’s motion for summary judgment, it being deficient in proof of Midland’s ownership of the account. Mr. Urrutia also argues that a genuine issue of material fact remains as to the amount of the debt in question.

ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Bourgeois v. Boomtown, LLC of Delaware, 10-553 (La.App. 5 Cir. 2/15/11), 62 So.3d 166, 169. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

|¡iA material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

On appeal, Mr. Urrutia argues that the bill of sale attached to the motion for summary judgment at issue should have been stricken because it lists no account number, names, or any other information showing that the defaulted credit card account was transferred from Citibank to Midland.

In support of its motion, Midland cited the case of Sears, Roebuck and Co. v. Richardson, 32,951 (La.App. 2 Cir. 4/5/00), 759 So.2d 190, which held that:

|fiThe pleadings, the demand letter and the affidavit of Hirway established a prima facie case of Sears’ entitlement to summary judgment against the defendant. Although the defendant submitted an affidavit in opposition, the affidavit did not raise a genuine issue of material fact. The defendant’s affidavit did not set forth specific facts supporting the contention that the amount she owed was incorrect. Instead, the affidavit attacked Sears’ evidence by making conclusory allegations concerning the maintenance of the accounting records and her account, and the personal knowledge of the affiant for Sears concerning the amount owed. Our review of the “Sears Itemization Report,” attached to the defendant’s affidavit, does not reveal information that would raise a genuine issue of material fact concerning the amount owed. Therefore, we find that Sears was entitled to summary judgment on this suit for an open account.

Sears, 759 So.2d at 193.

In its motion, Midland noted that it had filed an affidavit of correctness of account certifying the balance and terms sued upon, as well as verifying the credit terms and the itemized statement of the account. Attached to the motion for summary judgment were multiple documents described as a bill of sale of multiple defaulted credit card accounts from Citibank to Midland. A review of those documents in their entirety shows that Midland proved its pri-ma facie case of ownership of the account. The affidavits in the supporting documents state that the record of the account was kept in the course of business and also include supporting affidavits regarding its accuracy.

The supporting documentation includes an affidavit by G. Keith Sias, who works in the office of counsel employed by Midland to sue for collection of the debt. This affidavit establishes that the law office received the case from Midland in April of 2010, and identifies Mr. Urrutia, the account number of the defaulted MasterCard account, the last four digits of his Social Security number, and the amount of the debt, and certifies that no credits were due on the account.

The affidavit of Erin Degal, from Midland, was also included in the documentation. It established that she was employed as a legal specialist at ^Midland Credit Management, Inc., the servicer of this account on behalf of Midland, that she had personal knowledge of the account records maintained on Midland’s behalf, and that she had access to the pertinent account records for this claim. She verified that Midland is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Mr. Urrutia’s Citibank account (identified by number), and that she had access to and had reviewed the records pertaining to the account and was authorized to make the affidavit on Midland’s behalf.

Attached to Ms. Degal’s affidavit are other supporting documents, including an affidavit of Sabrina Stewart, an employee of Citicorp Credit Services, Inc. (“CCSI”), who attested that CCSI is a subsidiary of Citibank, N.A. (“Citibank”) and services credit card accounts for Citibank, including maintaining and recording information in Citibank’s records as they relate to credit cards owned by Citibank, and that this includes accounts previously owned by Citibank (South Dakota), N.A., which merged into Citibank in or about July 2011. She attested that her duties included having knowledge of, and access to, business records relating to “the Citibank account referenced above,” which was Mr. Urrutia’s account. Ms. Stewart identified the MasterCard account of Mr. Urrutia as one of those accounts previously owned by Citibank and specifically by name, account number, opening date, the last four digits of Mr. Urrutia’s social security number, and account balance, which is the same amount as was listed in Midland’s original petition. She attested that the records of Citibank indicate that the account was sold to Midland on or about January 22, 2010, and that Citibank retained no ownership interest in the account after it was sold. Attached thereto was data printed by Midland Credit Management, Inc. from electronic records provided by Citibank (South Dakota), N.A. pursuant to the Bill of Sale/Assignment of Accounts dated |sJanuary 22, 2010, in connection with the sale of accounts from Citibank (South Dakota), N.A. to Midland. The data was information relating specifically to Mr. Ur-rutia’s account and contained his name, address, birthdate, redacted social security number, account number of the Sears Gold MasterCard in question, and the balance due thereon.

Also included in the documentation are three bills of sale of accounts from CitiFi-nancial, Inc., and Citibank (South Dakota), N.A., to Midland, and the Purchase and Sale agreement between Midland and Citibank (South Dakota), N.A. A statement of account from Sears to Mr. Urrutia is found next, describing the amount due on the account on November 1, 2009 as the same balance as that sued upon. This account notice from Sears to Mr. Urrutia contains his address and account number, as well as a recent balance history and the addition of late charges since the previous statement.

In the trial court, Mr. Urrutia argued at numerous points during the litigation that he had no business relationship or contract with Midland and that Midland had failed to prove the ownership of the debt by failing to show a transfer of the account from Citibank to Midland. Upon review, we find that the evidence attached to Midland’s motion for summary judgment of August 14, 2012, as described above, clearly fulfilled its required burden of proof as mover herein.

Mr. Urrutia also argues that the date of the “write off’ is listed differently twice in the attached documents, and also that a “field” document lists the wrong date for Mr. Urrutia’s birthday, as well as a phone number for him that is wrong. However, these particular issues were not argued in the trial court, and may not be argued for the first time in the appellate court. Mr. Urrutia does not otherwise claim that he never owned the account, that the account number is incorrect, or that his Social Security number listed on the supporting documents was incorrect. The | particular “defects” argued by Mr. Urrutia for the first time in this Court are not material in the overall identification and verification of this account and its transfer from Citibank to Midland. Thus, we find that Midland satisfactorily bore its burden of proof that there is no remaining issue of material fact as to the transfer of the account from Citibank to Midland.

Next, Mr. Urrutia argues that a genuine issue of material fact remains as to the amount of the debt. Upon our de novo review, we disagree. We find no defect in the affidavits and find that in all documents in support of this motion for summary judgment, the amount of the debt is clearly and consistently described as $5,031.94. Mr. Urrutia argues that a “Statement” of the account contained in the record states that the debt is $5,036.90. However, the “Statement” referenced by Mr. Urrutia was attached to a Request for Genuineness of Documents filed by Midland during discovery and was not furnished by Midland in connection with the motion for summary judgment that was granted. Further, the “Statement” to which Mr. Urrutia refers, dated January 29, 2010, lists the account balance as $5,031.94, the amount sued upon and identified in all other documents, but was adjusted upward by $4.96, which represented accrued interest on the balance of the account, as shown on the “Statement.” Thus, this discrepancy in the amount is easily clarified and does not represent a genuine issue of material fact sufficient to cast doubt as to the amount of the account or the trustworthiness of the affidavits, or to defeat the summary judgment granted in Midland’s favor.

CONCLUSION

Accordingly, for the reasons assigned above, we affirm the trial court’s grant of summary judgment in favor of Midland.

AFFIRMED.

      . At the time of the hearing on the motion, La. C.C.P. art. 966 mandated that only evidence formally admitted into evidence during the summary judgment hearing could be considered by the trial court. Marengo v. Harding, 13-47 (La.App. 5 Cir. 5/16/13), 118 So.3d 1200, 1202. The evidence relied upon by Midland was not formally introduced into evidence at the hearing held on October 31, 2012. However, La. C.C.P. art. 966 was amended effective August 1, 2013 to remove the requirement of formal introduction of evidence at the hearing on the motion for summary judgment. The article now states, in subparagraph F(2), in pertinent part, that "[ejvidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph.” Subparagraph F(3) of this article states that "[o]bjections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor.”
      This amendment to Article 966 is procedural and therefore applies retroactively. La. C.C. art. 6. Accordingly, this Court declines to vacate the judgment and remand for a new hearing on the grounds that Midland’s evidence was not formally admitted at the hearing, because after August 1, 2013, there is no longer a requirement to formally admit the evidence at the hearing. Furthermore, defendant did not object to the introduction of Midland's evidence either by written motion, memorandum, or at the hearing held on October 31, 2012, nor on appeal.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Artez CARTER and Tyran Jones.
    No. 2013-K-1452.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Relator/State Of Louisiana.
    Joyce S. Sallah, Orleans Public Defenders, New Orleans, LA, for RespondenVDe-fendant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

|,We granted the prosecution’s application for a writ of certiorari in order to review its complaint that the district judge erred when he suppressed for use at trial the illegal narcotics evidence seized from the person of the defendant, Artez Carter, during a weapons frisk. The parties were afforded oral argument.

Because the prosecution failed to meet its burden of showing that the frisking officer believed the narcotics to be a weapon or that their illicit nature was immediately apparent to that officer, we find that the district judge did not abuse his discretion in granting Mr. Carter’s motion to suppress. We thus affirm the ruling and remand the matter to the trial court for further proceedings. We explain our decision in more detail below.

I

Under Louisiana law, the prosecution does not enjoy the right to appeal an adverse ruling on a motion to suppress. See La.C.Cr.P. art. 911 (“Appeal is the exercise of the right of the state or the defendant to have a judgment or ruling reviewed by the proper appellate court.”); La.C.Cr.P. art. 912 B (listing those [¿judgments or rulings which are appeal-able by the prosecution). By way of contrast, in federal criminal proceedings, the government may appeal a decision suppressing or excluding evidence “if the United States attorney certifies to the district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” 18 U.S.C. § 3731. Thus, in order to obtain relief from an adverse ruling in Louisiana state courts, the prosecution must request that we exercise our supervisory jurisdiction, which is at our discretion to grant. See La. Const. art. 5, § 10. See also Livingston Downs Racing Association, Inc. v. Louisiana State Racing Comm’n, 96-1215 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216 (“the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right”).

Here, the prosecution has described the suppressed narcotics as “critical evidence at the trial of this matter” and further noted that it has no remedy on appeal. Because the pending counts against Mr. Carter all involve possession of narcotics with the intent to distribute, an acquittal would be expected without ability to introduce the illegal narcotics as evidence at trial, and, importantly, the prosecution cannot appeal a verdict of acquittal. See La.C.Cr.P. art. 912 B. A defendant whose motion to suppress is denied, however, has an adequate remedy on appeal in the event of a conviction either by assigning as error the district judge’s denial of his motion to suppress or by reserving appellate review of that [¡¡ruling when pleading guilty under State v. Crosby, 338 So.2d 584, 588 (La.1976). In either situation, the defendant obtains appellate review of the suppression ruling as a matter of right.

We therefore granted the prosecution’s writ of certiorari to review the district judge’s ruling to suppress the narcotics, which is binding at trial. See La. C.Cr.P. art. 703 F.

II

Mr. Carter claims that his fundamental right to be secure in his person was violated when Officer Buckle of the New Orleans Police Department seized narcotics from inside his clothes while conducting a frisk of Mr. Carter for weapons. After hearing the argument of counsel and testimony on the matter, the district judge granted Mr. Carter’s motion to suppress. After our de novo review, we find the search to be unreasonable under the Fourth Amendment. Accordingly, the district judge did not abuse its discretion.

A

In this Part, we set forth the facts pertinent to our review. On July 11, 2013, Mr. Carter was charged by bill of information with possession with the intent to distribute cocaine, heroin, and marijuana, violations of La. R.S. 40:967 B(1); 966 A(1, 2). After Mr. Carter pled not guilty, his defense counsel filed a motion to Lsuppress. At the hearing conducted on that motion, the district judge granted Mr. Carter’s motion to suppress the evidence and found insufficient probable cause to substantiate the charges against Mr. Carter. The state timely filed this writ application.

On the evening of July 11, 2013, Mr. Carter was sitting inside the Sportsman’s Corner Bar, located at 2433 Dryades Street in New Orleans, an area known to the police to have a reputation for narcotics distribution, shootings, and other violent crimes. At that same time, police officers were dispatched to investigate a complaint that several men, two of whom were armed, were selling narcotics outside of that bar on the corner of Second Street and Dryades Street.

As the responding patrol vehicles approached the location, several of the men ran into the bar and were pursued by the police officers. Sergeant Eric Gillard observed one of the men, later identified as Mr. Carter’s co-defendant, Tyran Jones, clutching his waistband as he ran inside. This suggested to Sergeant Gillard that he was concealing a firearm. Upon entering the bar, Officer Troy Pichón observed Mr. Jones drop a loaded black 9 mm. handgun and a clear plastic bag containing fourteen pieces of crack cocaine into an empty mop bucket. Officer Pichón then arrested Mr. Jones, advised him of his Miranda rights, and escorted him out of the bar.

Mr. Jones told Sergeant Gillard that he was a convicted felon and could not go back to jail. In an attempt to curry favor, Mr. Jones then volunteered to Sergeant Gillard that Mr. Carter was a drug dealer and had illegal narcotics on him. | ¡¡Mr. Jones also described Mr. Carter’s clothing and where he was sitting at the bar. The police then went inside the bar and located Mr. Carter. No drugs or other incriminating evidence were in the officer’s plain view at that time. Mr. Carter was then advised of his Miranda rights and escorted out of the bar. All agree that Mr. Carter had done nothing suspicious at that point and that the sole basis for his detention was the suspicion aroused on account of Mr. Jones’s statement to the police.

Officer Buckle frisked Mr. Carter for weapons out of concern for his and the officers’ safety. He did not locate any weapon on Mr. Carter, but reached into Mr. Carter’s pants and removed a plastic bag containing cocaine, heroin, and marijuana. Officer Buckle did not testify at the motions hearing. There was no evidence presented that Officer Buckle believed that the narcotics were a weapon of any kind or that, solely by feeling, it was immediately apparent that the contents were narcotics.

B

In this Part, we set forth the legal precepts which guide our review. The Fourth Amendment to the United States Constitution and La. Const. art. I, § 5 protect persons against unreasonable searches and seizures. It is important to remember that “ ‘the Fourth Amendment protects people, not places.’” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoting Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In order for the Fourth Amendment to guard a citizen from unreasonable state action, | (¡however, that person must have a reasonable expectation of privacy at the time of the search or seizure. See Terry, 392 U.S. at 9, 88 S.Ct. 1868. See also State v. Clausen, 97-0885, p. 4 (La.App. 4 Cir. 7/2/97), 697 So.2d 1066, 1068. “ ‘Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.’ ” State v. Francis, 10-1149, pp. 4-5 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 (quoting State v. Bell, 09-0574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512).

Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless they fit within one of the narrow exceptions to the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). See also State v. Isidore, 00-2781, p. 3 (La.App. 4 Cir. 5/23/01), 789 So.2d 79, 82. The state has the burden of proving that a warrantless search is compatible with an exception, and, thus, that the evidence seized as a result of that search is admissible. See La.C.Cr.P. art. 703 D.

The relevant exception in this case is a Terry stop. Importantly, the prosecution does not seek to justify Officer Buckle’s actions as a search incident to a lawful arrest, which requires probable cause to justify the search. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”). Therefore, the merits of that exception will not be considered.

|7“ ‘[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ... ’ the officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). Furthermore, “ ‘[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may conduct a frisk ‘to determine whether the person is in fact carrying a weapon.’ ” Id. (quoting Terry, 392 U.S. at 24, 88 S.Ct. 1868). This exception is codified in Louisiana Code of Criminal Procedure article 215.1. This article complies with the standards established under the Fourth Amendment to the U.S. Constitution and La. Const. art. I, § 5. See State v. Denis, 96-0956, p. 3 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, 1296. Should the officer choose to frisk the person seized, we will review the seizure and search separately to determine whether each of the officer’s actions was reasonable. See Francis, 10-1149 at p. 9, 60 So.3d at 710.

1

In order to justify the investigatory stop, the officer must have reasonable suspicion that a person is committing, has committed, or is about to commit an offense. See La.C.Cr.P. art. 215.1 A. A person seized in this manner is protected by the Fourth Amendment. See Terry, 392 U.S. at 16, 88 S.Ct. 1868 (“[Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” for Fourth Amendment purposes).

RWe must determine “whether the officers had sufficient knowledge of the facts and circumstances to justify an infringement [of a particular] individual’s right to be free from governmental interference.” State v. Johnson, 94-1170, p. 5 (La.App. 4 Cir. 8/23/95), 660 So.2d 942, 947. Reasonable suspicion for an investigatory stop “is something less than probable cause for arrest.” State v. Fogan, 609 So.2d 1016, 1018 (La.App. 4th Cir.1992). See also Dickerson, 508 U.S. at 373, 113 S.Ct. 2130; Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). This review is “an objective inquiry into the totality of the circumstances surrounding the encounter,” State v. Dumas, 00-0862, p. 2 (La.5/4/01), 786 So.2d 80, 81 (citing State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881), and calls for consideration of whether “the facts available to the officer at the moment of the seizure ... warrant a man of reasonable cause in the belief that the action taken was appropriate.” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (internal quotations and punctuation omitted)(emphasis added).

“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. See also Francis, 10-1149 at p. 6, 60 So.3d at 709. “An inchoate, unpar-ticularized hunch is insufficient grounds for detention under [La.C.Cr.P. art.] 215.1[A].” Denis, 96-0956 at p. 4, 691 So.2d at 1297. It is less demanding, however, “not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the |3sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” White, 496 U.S. at 330, 110 S.Ct. 2412.

Officers can consider whether the person attempted to flee or appeared nervous at the sight of police officers. See Johnson, 94-1170 at p. 5, 660 So.2d at 947. Additionally, officers can weigh the reputation of the area being patrolled, see State v. Dappemont, 98-0446, p. 12 (La.App. 4 Cir. 3/17/99), 734 So.2d 736, 742, as well as other cumulative information available to the officer as a result of his training, experience, and common sense. See Terry, 392 U.S. at 27, 88 S.Ct. 1868; State v. Boyer, 07-0476, p. 17 (La.10/16/07), 967 So.2d 458, 469-470; Isidore, 00-2781 at p. 4, 789 So.2d at 83. Finally, an officer’s knowledge about the criminal history of the particular person being stopped can also be considered but may not be the only factor justifying the stop. See Dumas, 00-0862 at p. 4, 786 So.2d at 82.

We also examine the extent of a seizure and determine “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” See Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. “The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation.” Id. at 28-29, 88 S.Ct. 1868. An investigatory stop that transforms into a custodial arrest without the requisite probable cause is as violative of the Fourth Amendment as an investigatory stop lacking reasonable suspicion.

Iu>2

“When a law enforcement officer has stopped a person pursuant to [La. C.Cr.P. art. 215.1 A] and reasonably suspects that he is in danger, he may frisk the outer of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.” La.C.Cr.P. art. 215.1 B. The purpose of this search is to prevent harm to police officers by allowing action prior to a crisis stage. See State v. Wade, 390 So.2d 1309, 1312 (La.1980).

The Fourth Amendment demands an independent justification for an officer to have the authority to conduct a frisk because this type of search “constitutes a severe, though brief, intrusion upon cherished personal security.” Terry, 392 U.S. at 24-25, 88 S.Ct. 1868. A lawful detention for questioning does not automatically give the officer authority to conduct a frisk for weapons. See State v. Sims, 02-2208, p. 6 (La.6/27/03), 851 So.2d 1039, 1043 (emphasis added). See also State v. Denis, 96-0956 at p. 7, 691 So.2d at 1298-99.

In order to justify this war-rantless search, the prosecution must show that “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868 (emphasis added). Review of the reasonableness of this type of search is also objective. See Boyer, 07-0476 at p. 20, 967 So.2d at 471 (citing Dumas, 00-0862 at p. 2, 786 So.2d at 81). The subjective belief of officers that they are in danger is not relevant. See id.

Similar to the justification for an investigatory stop, an officer must also be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” this particular intrusion. Terry, 392 U.S. at 21, 88 S.Ct. 1868. “[C]riminality and weaponry are neither synonymous, nor mutually inclusive. However, because there is often overlap between the two, in many situations the circumstances that justify the stop [may] also warrant the frisk.” Wade, 390 So.2d at 1312. “The officer need not be absolutely certain that the individual is armed.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. See also State v. James, 07-1104, p. 6 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 754. The officer need only show a “ ‘substantial possibility’ of danger.” Francis, 10-1149 at p. 8, 60 So.3d at 710 (quoting Sims, 02-2208 at p. 3, 851 So.2d at 1043-1044).

Importantly for our purposes, “a search which is reasonable at its inception may [still] violate the Fourth Amendment by virtue of its intolerable intensity and scope.” Terry, 392 U.S. at 18, 88 S.Ct. 1868. This frisk must also be “ ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Francis, 10-1149 at p. 8, 60 So.3d at 710 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). Thus, the search “must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ ” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (citing Terry, 392 U.S. at 26, 88 S.Ct. 1868). This frisk is “not justified by any need to prevent the disappearance or destruction of evidence of crime.” Terry, 392 U.S. at 29, 88 S.Ct. 1868.

We are very “‘sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or exigency, into the equivalent of a general warrant to rummage and seize at will.’” Dickerson, 508 U.S. at 378, 113 S.Ct. 2130 (quoting Texas v. Brown, 460 U.S. 730, 748, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). Thus, this search is limited to patting down the outer clothing of the suspicious person. See Terry, 392 U.S. at 29, 88 S.Ct. 1868. The officer may not rummage through pockets or under the outer surface of garments until he or she feels and recognizes the weapon to be seized. See id. at 29-30, 88 S.Ct. 1868.

In Dickerson, the U.S. Supreme Court created a limited exception to this steadfast rule known as “plain feel” through analogy to the “plain view” doctrine. 508 U.S. at 374, 113 S.Ct. 2130. The Court stated: “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Id. at 375, 113 S.Ct. 2130. See also Boyer, 07-0476 at p. 22, 967 So.2d at 472. This exception allows officers to seize contraband, such as narcotics, during frisks pursuant to Terry stops, see Dappemont, 98-0446 at p. 12, 734 So.2d at 742, provided that the officer has probable cause to believe that the item is contraband prior to its seizure. See Boyer, 967 So.2d at 473. The officer may not, however, seize or examine further an object that is not a weapon or clearly contraband.

|13If the protective search exceeds its permissible scope, it is no longer a valid search and its fruits will be suppressed. See Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (citing Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). Examples of courts suppressing evidence due to officers exceeding the permissible boundaries of these searches are numerous. See State v. James, 99-3304 (La.12/8/00), 795 So.2d 1146 (per curiam) (film canister); State v. Rabon, 00-0935 (La.6/30/00), 764 So.2d 944 (per curiam) (opaque pill bottle); State v. Sheehan, 99-0725 (La.7/2/99), 767 So.2d 1 (per curiam) (cigarette box); Clausen, 97-0885, 697 So.2d 1066 (small wooden box); Dickerson, 508 U.S. 366, 113 S.Ct. 2130 (small lump in jacket pocket); Isidore, 00-2781, 789 So.2d 79 (shaking out baseball cap after removing from person’s head); Dappemont, 98-0446, 734 So.2d 736 (fast food bag protruding from zipper area of pants).

A trial court’s determination regarding a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. See Francis, 10-1149 at p. 5, 60 So.3d at 708. This deference stems from the trial court’s ability to observe witnesses and weigh the credibility of their testimony. See Isidore, 00-2781 at p. 3, 789 So.2d at 82. We only deviate from this deferential standard in our review of a trial judge’s finding of reasonableness under the Fourth Amendment, which requires a de novo review. See Francis, 10-1149 at p. 5, 60 So.3d at 708.

C

In this Part, we apply these guiding precepts to the facts of this case. When Mr. Carter was seized and frisked by the police that evening, he was entitled to the | protection of the Fourth Amendment. See, e.g., Terry, 392 U.S. at 9, 88 5.Ct. 1868. We note that both Mr. Carter and the prosecution agree that the information furnished to the police by Mr. Jones sufficed to establish reasonable suspicion to conduct an investigatory stop but did not establish probable cause for his arrest. Mr. Jones identified Mr. Carter by name and his clothing, and informed the police that Mr. Carter was a drug dealer. This information was sufficient to establish reasonable suspicion that Mr. Carter was committing a crime. Thus, the police were reasonable in briefly stopping Mr. Carter in order to make inquiries aimed at dispelling or confirming their suspicions.

We also note that Mr. Carter and the prosecution agree that the police had sufficient information to justify a limited weapons frisk after their seizure of Mr. Carter. The police were investigating narcotics dealing in an area of the city known for violent crime. Additionally, the police had just arrested another man, Mr. Jones, for possession of a firearm inside the same bar. A reasonably prudent officer in those circumstances would be warranted in his belief that there was a substantial possibility of danger. See Francis, 10-1149 at p. 8, 60 So.3d at 710 (quoting Sims, 02-2208 at p. 3, 851 So.2d at 1043-1044). Thus, the police were justified in frisking Mr. Carter for weapons. During that frisk, however, the police exceeded 11sthe permissible scope of that search. As previously stated, a frisk for weapons pursuant to a Terry stop must be strictly limited to the discovery of weapons and the patting of the outer clothing of the suspicious person.

During the frisk, the police discovered a plastic bag containing narcotics in Mr. Carter’s pants. As this constitutes evidence seized without a warrant, it is the State’s burden to prove its admissibility under La.C.Cr.P. art. 703 D. The officer that seized the evidence, Officer Buckle, did not testify at the hearing on the motions. The prosecution did not establish what he felt during the frisk, whether he construed the bag of drugs to be a weapon of some kind, or whether the bag’s illicit nature was immediately apparent. The state failed to meet its burden of proof by showing that this evidence should be admissible under the “plain feel” exception granted by Dickerson.

From the facts before us and viewing all of the evidence according to the totality of the circumstances, we find that the district judge did not abuse its discretion in granting Mr. Carter’s motion to suppress the evidence seized by Officer Buckle. While we find that the frisk performed by Officer Buckle was justified by an objectively reasonable belief that Mr. Carter posed a danger, the scope of that search exceeded the permissible boundaries of a limited weapons frisk. The frisk was an unreasonable search under the Fourth Amendment.

|1(iDECREE

Having granted a writ of certiorari, we now affirm the district court’s ruling which suppressed the evidence of the illegal narcotics for use at trial. We lift the stay previously issued by us. And we remand the matter to the trial court for further proceedings.

WRIT OF CERTIORARI GRANTED; STAY LIFTED; AFFIRMED AND REMANDED.

      . Notably, “[w]hen a conditioned plea is accepted reserving an assignment of error as to a pretrial ruling of this nature, we will assume that the evidence questioned is of this prejudicial nature and will be offered at the trial, unless the record of the plea demonstrates otherwise.” Crosby, 338 So.2d at 591.

      . We do not consider the prosecution’s later-filed objections which were first raised in their supplemental brief because such objections were not made at the time of the hearing and are thus not preserved for our review because the district judge was not afforded an opportunity to correct any error which could have been pointed out to him.

      . The Fourth Amendment applies to State prosecutions through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . The term "search” in this statute should be understood to only allow an intrusion " 'reasonably related in scope to the circumstances which justified the interference in the first place.' ” Francis, 10-1149 at p. 8, 60 So.3d at 710 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). We must "construe statutes so as to preserve their constitutionality, when it is reasonable to do so.” State v. Fleury, 2001-0871 (La.10/16/01), 799 So.2d 468, 472 (citing Moore v. Roemer, 567 So.2d 75, 78 (La.1990); State v. Newton, 328 So.2d 110, 117 (La.1976) (on rehearing)). Reasonable suspicion that a person possesses a dangerous weapon is not a sufficient justification for a full search of the person.

      . The prosecution also cites La. R.S. 14:95.4 in this writ application for the proposition that Mr. Carter consented to “a reasonable search of his person for any firearm” upon "entering an alcoholic beverage outlet.” As previously stated, the term "search” in this statute should be understood to only allow an intrusion " 'reasonably related in scope to the circumstances which justified the interference in the first place.’ " Francis, 10-1149 at p. 8, 60 So.3d at 710 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). As the officers in this case only had reasonable suspicion to stop Mr. Carter, their subsequent search could not exceed that permissible scope.

      . The trial judge appeared to base his ruling upon the belief that Officer Buckle had no reasonable suspicion to detain Mr. Carter because of the untested veracity of the informer. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).


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

text:
    I.F. v. ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 2013-CA-0696.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2013.

      Michael R. Allweiss, Melanie Lockett, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    James M. Garner, Dorothy S. Watkins Lawrence, Paul R. Trapani, III, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, Jr., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

11This is the second time this court has addressed an appeal in this case. By way of background, we quote from our original opinion, I.F. v. Administrators of the Tulane Educational Fund, 11-0308, pp. 1-3 (La.App. 4 Cir. 8/24/11), 72 So.3d 462, 462-65:

I.F., the plaintiff/appellant, appeals from a judgment dismissing his petition for preliminary and permanent injunction against the defendant/appellee, the Administrators of the Tulane Educational Fund (“Tulane”). For the reasons that follow, we reverse the judgment of the trial court and remand the matter to the court below for further proceedings consistent with this opinion.
I.F., a Tulane student, was accused of raping K.K., also a Tulane student, in the early morning hours of 18 September 2009. In addition to filing a complaint with Tulane, K.K. also contacted the New Orleans Police Department (“NOPD”), after which I.F. was arrested and charged with simple rape and false imprisonment. I.F. was acquitted on all charges by the criminal court without his putting on a defense.
After his acquittal, I.F. participated in ■a three-day disciplinary proceeding before the Tulane Joint Hearing Board for his alleged violation of the Code of Student Conduct (“the Code”). I.F. was charged with “Sexual Misconduct,” which is defined as “non-consensual sexual behavior which may occur as a result of force, threat, intimidation, or through the use of the victim’s mental or li>physical helplessness of which the accused was aware or should have been aware.”
After the August 2010 hearing, the Joint Hearing Board found that “clear and convincing” evidence existed that K.K., the victim, was intoxicated and that I.F. knew or should have known of this fact. On 7 September 2010, the Joint Hearing Board issued its decision finding that I.F. was responsible for sexual misconduct as charged.
On 27 September 2010, following the procedures outlined in the Code, I.F. filed an appeal of the Joint Hearing Board’s decision to Tulane’s Appellate Board. I.F. claimed that (a) new and significant evidence had appeared that he could not have discovered before or during the hearing; (b) procedural errors deprived him of a fair hearing; and (c) the decision by the Joint Hearing Board was arbitrary and capricious. The appeal was rejected on 7 October 2010.
On 25 October 2010, I.F. filed a petition for preliminary injunction and permanent injunction seeking to enjoin Tulane from imposing, enforcing, or recording the discipline related to the Joint Hearing Board’s decision and to reverse the decision. The trial court held a hearing on the petition on 17 November 2010, at which time it ruled that the scheduled hearing on affidavits was inappropriate because I.F. sought a mandatory injunction for affirmative relief;. thus an evidentiary hearing was required. The hearing was rescheduled for 5 January 2011. In the meantime, Tulane filed a motion to dismiss the petition based on the record, which included the transcript from the Joint Hearing Board hearing and various documents that were introduced therein. I.F. opposed the motion.
On 5 January 2010, prior to the scheduled evidentiary hearing, the trial court heard oral argument on Tulane’s motion to dismiss. The trial court granted the motion and dismissed I.F.’s petition with prejudice. The trial court requested that Tulane prepare the judgment and reasons for judgment. It did so; the reasons for judgment were over twenty pages in length. I.F. filed a competing judgment and objected to Tulane’s proposed reasons for judgment. In particular, I.F. objected to the continued reference to “evidence” because no “evidence” was introduced into the record. In addition, I.F. objected to many of the factual assertions that differed with the material previously submitted. In |3any event, the trial court signed the reasons for judgment prepared by Tulane without any revision.

Following a review of the record and applicable law, we found that the trial court erroneously dismissed I.F.’s petition for a mandatory injunction:

The petition in question raises many genuine issues of material fact such that both a judgment on the pleadings and a summary judgment would be inappropriate vehicles by which to dismiss the pleading. Therefore, we find that the trial court erred in granting the motion to dismiss before holding an evidentiary-hearing as required by law.
Because of the procedural error committed by the trial court, we do not reach the merits issues of whether I.F. was afforded due process and/or whether Tulane was arbitrary and capricious.
Based on the foregoing, we reverse the judgment granting the motion to dismiss filed by Tulane and remand the matter to the trial court for an eviden-tiary hearing on I.F.’s request for a mandatory injunction.

Id. at p. 8, 72 So.3d at 467. In doing so, we specifically found that I.F. had stated a cause of action against Tulane. Id. at p. 7, 72 So.3d at 467.

Notwithstanding our findings and mandate for an evidentiary hearing, one day after the reversal, Tulane re-urged its exception of no cause of action and alternatively motion for summary judgment and/or judgment on the pleadings. In response, I.F. filed a motion to strike and for sanctions. Tulane filed its own motion for sanctions as well. The re-urged exception and motions filed by the parties were denied by the trial court.

I/The required evidentiary hearing on I.F.’s petition for mandatory injunction, as amended, was held on 25-26 April and 12 December 2012. The trial court specifically stated that it was only hearing the issue of whether I.F. was accorded due process, declining to hear and decide the issues of whether the decision rendered by Tulane was arbitrary and capricious and whether 1.F. was entitled to the prayed-for mandatory injunction.

At the conclusion of the hearing, Tulane moved for an involuntary dismissal, which was granted by the trial court. The court requested that a judgment be prepared and circulated; Tulane’s counsel undertook the task. Notwithstanding the instruction to submit only an order (judgment), Tulane prepared and submitted reasons for judgment incorporated as a part of the judgment itself. Despite objections from I.F., the trial court adopted those reasons for judgment with minimal changes. In those reasons for judgment, the trial court found that I.F. received due process in connection with the Tulane proceedings and that Tulane was not arbitrary and capricious. This timely appeal followed.

I.F. has assigned four errors for review:

1. The trial court erred in limiting the review of Tulane’s disciplinary decision to whether I.F. received notice, an opportunity to be heard, and an opportunity to present evidence;
2. Tulane’s actions were arbitrary and capricious and violated I.F.’s due process safeguards;
3. The trial court erred in failing to issue a mandatory injunction; and
|54. The trial court erred in denying I.F.’s motion to strike and for sanctions.

At the close of the testimony and argument on 12 December 2012, the trial court stated:

Mickey [LF.’s counsel, Mickey All-weiss], look. I feel your pain and I admire your passion. I just don’t agree with your interpretation and the facts and the law.
If no other time on cross-examination he admitted over and over that he saw this document, he understood that, he understood the charge, I am convinced that he got minimal due process.
I’m going to grant the motion. Note your objection for the record. Y’all are going up, I know.
Somebody give me an Order, circulate it among yourselves first. I note your objection for the record so that it will be preserved.

Instead of creating an order (we presume the court meant a final judgment) granting the involuntary dismissal, counsel for Tulane drafted a 22-page document entitled, “Judgment and [incorporated] Reasons for Judgment,” which, Tulane admits, was not sent to opposing counsel before it was filed with the court on or about 16 January 2013. After protests by counsel for I.F., the trial judge contacted I.F.’s counsel that same afternoon and requested I.F.’s own proposed reasons for judgment. Stating that the trial court had ruled from the bench with only limited reasons, I.F.’s counsel opined that he did not have adequate insight into the basis for the ruling and could not, in good faith, provide detailed reasons. Instead, I.F.’s counsel submitted a proposed judgment. The trial court | (¡subsequently signed the document submitted by Tulane without any substantive changes on 22 February 2013.

We observe that the judgment and reasons for judgment were contained in the same document, contrary to the mandate of La. C.C.P. art.1918:

When written reasons for judgment are assigned, they shall be set out in an opinion separate from the judgment. [Emphasis supplied.]

Put otherwise, a judgment should not include reasons for judgment. Furthermore, an appeal lies only from the judgment, not from the reasons. Greater New Orleans Expressway Com’n v. Olivier, 02-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24. However, this error does not invalidate a judgment that is complete and valid except for the inclusion of reasons.

In examining reasons for judgment, we stated in Burkett v. Crescent City Connection Marine Division, 98-1237, pp. 10-11 (La.App. 4 Cir. 2/10/99), 730 So.2d 479, 484-85:

Courts may adopt those findings submitted by one party and reject those of the other. In re Las Colinas, Inc., 426 F.2d 1005 (1st Cir.1970). “[T]he integrity of the judicial process demands (1) close scrutiny by the district court for accuracy from the standpoint of fact and law, plus (2) that degree of clarity which is necessary for a review of what is essentially the work of counsel.” State of Florida v. Charley Toppino & Sons, Inc., 514 F.2d 700, 703, n. 7 (5th Cir. 1975).
Although a trial judge might adopt most or almost all of a party’s suggested reasons for judgment, the reasons and the judgment itself will stand as long as the record supports them. In Lancaster v. Petroleum Corp. of Delaware, 491 So.2d 768, 773 (La.App. 3[rd] Cir.1986), the court stated:
Though it is not a common practice in Louisiana for the trial court to allow counsel to prepare the Court’s reasons for judgment, it is an accepted practice. [See J. Lemmon’s dissent in Miller v. Smith, 402 So.2d 688 (La.1981)]. This procedure is also permitted in Federal courts, and the United States Supreme Court has stated that where counsel has prepared the Court’s reasons for judgment:
“Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.” United States v. El Paso Natural Gas Company, 376 U.S. 651, 656, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964).

Here, the judgment and reasons for judgment contain a fundamental error that requires reversal and remand. During the hearing, the trial court specifically limited admissible evidence to the issue of due process. It would not and did not consider any evidence going to the issue of whether Tulane’s decision was arbitrary and capricious pursuant to our jurisprudence and as we directed in our prior opinion. However, the judgment and incorporated reasons specifically discuss the sufficiency of the evidence in determining the issues of arbitrariness and capriciousness, going far beyond the evidence that was heard by the court.

|sIn the first opinion, we remanded the matter to the trial court for an evidentiary hearing on two issues: (1) due process and (2) arbitrariness and capriciousness. This, the trial court failed to do, instead requiring I.F. to proffer all testimony and corresponding evidence for our review. Without hearing the evidence, the trial court should not have issued reasons for judgment on the issues of arbitrariness and capriciousness.

The problem herein is that all the reasons for judgment are not supported by the evidence. Therefore, we are compelled to set them aside in their entirety along with the incorporated judgment and remand the case to the trial court for further proceedings.

We also find that the trial court erred by failing to examine the appellate process afforded by Tulane. We acknowledge that Tulane’s due process procedure may afford protections beyond that required by state law. However, Tulane must adhere to the standards it provides. It imposed upon itself the duty by its own policies and procedures and it is obligated contractually to follow through completely, meaningfully, and in good faith. We find that it did not do so in this matter, but only insofar as the limited evidence that appears before us presently; that is, the trial court granted Tulane’s motion for an involuntary dismissal and Tulane never put on its evidence to prove that it afforded I.F. appropriate due process. The Joint Hearing Board was concerned with the issue of whether K.K. made a phone call that she denied making. I.P. could not have known that this issue would be of importance until the hearing. When I.F. provided phone records on the issue of K.K.’s credibility to Tulane’s appellate panel, the panel failed to consider that evidence. In fact, the appellate panel, from what we can tell, did not | Review the entire record from the Joint Hearing Board. We find that even minimal due process, as well as the procedures Tulane adopted, requires more.

When students enter Tulane, they are presented with a manual entitled: “Student Conduct Policies and Procedures.” This manual provides in pertinent part:

B. Procedural Due Process Rights

1. Procedural Review:
The chief judicial affairs officer or designated representative reviews the charged student’s procedural due process rights. These rights include, but are not limited to: access to his/her case file; right to have an advisor of his/her choice at the hearing selected from faculty, staff, or students of the University (such an advis- or in no case shall be legal counsel or campus police officer): and, the right to bring witnesses to the hearing. [Emphasis supplied.]

As we stated in Babcock v. New Orleans Baptist Theological Seminary, 554 So.2d 90, 96-97 (La.App. 4th Cir.1989):

Thus, the Trial Court did not err in holding that this dispute was more in the nature of a contractual dispute than an ecclesiastical one, and neither did the Trial Court err in holding that school publications given to students were part of the terms of a “contract” between a school and its students. Courts in other jurisdictions have indicated that the relationship between a student and a private educational institution may be considered contractual in nature and school publications may serve as evidence of the “contract”. See, Lexington Theological Seminary v. Vance, 596 S.W.2d 11 (Ky.Ct.App.1979); Tedeschi v. Wagner College, [49 N.Y.2d 652, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980)] supra; Napolitano v. Princeton Univ. Trustees, 186 N.J.Super. 576, 453 A.2d 279 (1982). Likewise, we believe Babcock and the Seminary were in a type of contractual relationship during his matriculation at the Seminary.

| mApplying Babcock to the facts herein, we find that I.F. and Tulane were in a contractual relationship during I.F.’s attendance at Tulane.

In Flint v. St. Augustine High School, 323 So.2d 229, 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 271 (La.1976), this court stated that a private institution has almost complete autonomy in controlling its internal disciplinary procedures. Additionally, this court stated that “a private institution is entitled to a very strong but rebuttable presumption that its internal administrative actions are taken in absolute good faith and for the mutual best interest of the school and the student body.” Id. at 235, n. 1. [Emphasis supplied.]

In Ahlum v. Admin. of Tulane Educational Fund, 617 So.2d 96, 98-99 (La.App. 4th Cir.1993), we stated:

The judiciary has recognized that a private institution, as compared to a public institution, has the power to create, administer and implement its own rules and procedures concerning the qualifications and conduct of its students, staff and faculty. Absent some form of state action, the courts have refused to hear claims which allege that a private institution’s practices have violated constitutional guarantees. See Blouin v. Loyola University, 506 F.2d 20 (5th Cir.1975); Wahba v. New York University, 492 F.2d 96 (2nd Cir.1974).
The fact that the judiciary adheres to this policy of judicial restraint does not render the actions of a private institution inviolate. As the language in Flint recognizes, the power of a private institution is not absolute: “That is not to say that due process safeguards (in private institutions) can be cavalierly ignored or disregarded.” Id. at 235. The disciplinary decisions of a private school may be reviewed for arbitrary and capricious action. Babcock v. Baptist Theological Seminary, 554 So.2d 90, 97 (La.App. 4th Cir.1989); citing Lexington Theological Seminary v. Vance, 596 S.W.2d 11 (Ky.Ct.App.1979); Tedeschi v. Wagner College, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980); Coveney v. President & Trustees of Holy Cross College, 388 Mass. 16, 445 N.E.2d 136 (1983). Therefore, if the record indicates that Tulane’s actions in suspending Ahlum were arbitrary and capricious, then its decision may be reviewed by the judiciary.
The Louisiana Supreme Court has defined “capricious” as a “conclusion made without substantial evidence or a conclusion contrary to substantial evidence.” Coliseum Square Association v. New Orleans, 544 So.2d 351, 360 (La.1989). The word “arbitrary” “implies a disregard of evidence or of the proper weight thereof.” Id. (Citations omitted).

We have also examined the “Conduct Manual” for joint hearing boards, conduct officers, and conduct advisors. In addition to a more fully explained meaning of “clear and convincing evidence,” it also contains a three-page single-spaced explanation of sexual misconduct cases and the questions the joint hearing boards must answer in deciding whether to sustain such a charge. I.F. testified that he was not given or shown this manual in order to prepare for his hearing at which he was prohibited from having an attorney represent him; no evidence refutes his statement. What I.F. had was only the definition as set forth in the student conduct manual at III. A. 22:

Sexual Misconduct: defined as noncon-sensual sexual behavior which may occur as a result of force, threat, intimidation, or through the use of the victim’s mental or | ^physical helplessness of which the accused was aware or should have been aware.

I.F. was entitled to know the standards by which his evidence would be received, his burden of proof, and what the hearing panel would be considering when determining whether he was guilty of sexual misconduct. Based on the record before us, which does not contain the evidence that Tulane would have presented if the trial court had not granted the motion for involuntary dismissal, we find that I.F.’s procedural due process rights were ill-defined, ambiguously applied, and, as such, presumptively violated. Thus on the issue of whether Tulane afforded I.F. appropriate due process, we must vacate and reverse the trial court’s decision in order to afford the parties an opportunity to put on all relevant evidence.

Because we find that the trial court did not consider the issue of whether Tulane’s actions were arbitrary and capricious, we must, once again, reverse and set aside the judgment and remand the matter to the trial court for a full evidentiary hearing on this issue. Our previous order of remand did not limit review to due process considerations; we also required the court to consider whether Tulane was arbitrary and capricious. We find that the trial court did not consider the appropriateness of Tulane’s appellate process when determining whether I.F.’s due process rights were violated. This, too, is a matter to be considered upon remand.

Finally, we address the issue of whether the trial court erred in denying I.F.’s motion to strike and for sanctions. As stated earlier, we held in our first opinion that I.F.’s petition raised many genuine issues of material fact such that both a judgment on the pleadings and a summary judgment would be inappropriate | ^vehicles by which to dismiss the pleading. Id. at p. 8, 72 So.3d at 467. We also held that I.F. had stated a cause of action against Tulane. Id. at p. 7, 72 So.3d at 467.

Nevertheless, one day after the reversal, Tulane re-urged its exception of no cause of action and, alternatively, its motion for summary judgment and/or judgment on the pleadings. In response, I.F. filed a motion to strike and for sanctions, to which Tulane filed its own. The re-urged exception and motions filed by the parties were denied by the trial court.

We find that the trial court was not manifestly erroneous and did not abuse its discretion by denying I.F.’s motions, although the actions of Tulane may be the outer limit of how far counsel might go, especially in this case where we specifically held I.F. stated a cause of action and Tulane immediately urged that I.F. had not stated one. In doing so, the trial court stated:

Okay. As to the Motions for Sanctions, it’s clear that this case has become a little contentious among the parties. But I think sanctions is [sic] always a harsh remedy unless the conduct is very, very harsh. All I see before me so far is just zealous representation of your clients, which I would expect nothing less.
So as to both Motions for Sanctions, I’m going to deny, and note your objections for the record.

We decline to reverse the trial court on this issue, noting that a trial court has broad authority in the imposition of sanctions, which may range from monetary penalties to a milquetoast dressing down as a warning not to do the same again.

|14We reverse the judgment and remand the matter to the court below for further proceedings consistent with this opinion.

REVERSED; REMANDED.

      . Because of the sensitive nature of the facts of this case, we have chosen to use some witnesses' and parties’ initials in lieu of their names, although their names appear in the sealed record. See La. R.S. 46:1844 W.

      . Due to this limitation, I.F. proffered a substantial amount of testimony and evidence for this court’s review.

      . This court does not know exactly what changes were made, but I.F. alleges that no substantive changes were made by the trial judge, an assertion Tulane does not deny.

      . In a letter dated 22 January 2013, Tulane's counsel stated to I.F.'s counsel: "While we admit that we did not submit the proposed reasons to you for your approval in advance of submitting them to the Court, we believed that you would respond as you did in January 2011 and object to the content and admit that the proposed reasons for judgment reflected the Court's ruling.”

      . We note that Tulane’s counsel failed to circulate its proposed judgment and reasons for judgment to opposing counsel for review and comment prior to submitting the document to the court, a clear violation of Rule 9.5(b) of the Uniform Rules for Louisiana District Courts, which states as follows:
      If presented later, the responsible attorney or the self-represented party shall circulate the proposed judgment, order, or ruling to counsel for all parties and to self-represented parties and allow at least five (5) working days for comment before presentation to the court. When submitted, the proposed judgment, order, or ruling shall be accompanied by a certificate stating: the date of mailing; the method of delivery of the document to other counsel of record and to self-represented parties; whether any opposition was received; and the nature of the opposition. [Emphasis supplied.]

      . The manual calls into question Tulane’s continued insistence that the only due process rights to which I.F. was entitled were notice and an opportunity to present his version of the facts.

      . The Conduct Manual, on the issue of "Burden of Proof,” states:
      Tulane University uses clear and convincing as the standard for the burden of proof. Clear and convincing evidence means that a conduct officer or the conduct board must be persuaded by the evidence that is [sic] highly probable that the claim is true. The clear and convincing evidence stand [sic] is a heavier burden than the preponderance of the evidence but less than beyond a reasonable doubt. It is important to remember, however, that the student conduct process is designed to hold Tulane students accountable to the standards set by the University and the impact of the violation on the Tulane University community should also be considered.
      I.F. testified that he was not aware of the final sentence highlighted above, which is not disputed in the record presently before us.

      . The trial court stated: "If you got a faulty appeal process, it’s not relevant. As long as you have notice, an opportunity to be heard, and opportunity to put evidence in.”


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Melvin SCOTT, Darron D. Williams.
    No. 2012-KA-1603.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, Donna Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Abita Springs, LA, for Defendant/Appellant/Melvin Scott.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant/Darron D. Williams.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

|, Melvin Scott and Darron D. Williams appeal their convictions of and sentences for distribution of heroin. For the reasons that follow, we affirm the convictions and sentences of Mr. Scott and Mr. Williams.

STATEMENT OF THE CASE

On May 18, 2010, Mr. Scott and Mr. Williams were each charged by bill of information with one count of distribution of heroin. They each pled.not guilty to the charges at their arraignment on May 20, 2010. After a hearing on October 7, 2010, the trial court found probable cause as to both defendants and denied their motions to suppress evidence and identification. A jury trial was conducted, and the defendants were both found guilty as charged.

Both defendants filed motions for new trial. Mr. Williams’ motion was filed on March 1, 2011, and was denied after a hearing. Mr. Scott filed a combined motion for new trial and post judgment verdict of acquittal. His motions |2were considered and denied at the sentencing hearing on May 17, 2012. Both defendants waived delays.

Thereafter, the trial court sentenced each defendant to of five years at hard labor. Both defendants pled guilty to a multiple bill of information and waived delays. The trial court then vacated the prior sentences and sentenced each defendant to twenty-five years at hard labor. The trial court denied Mr. Scott’s motion for reconsideration of sentence; it also denied Mr. Williams’ motion to contest the constitutionality of the mandatory minimum sentence as applied.

This appeal follows.

FACTS

New Orleans Police Det. Jason Germann of the Sixth District Narcotics Unit testified that on May 10, 2010, he was conducting surveillance near the intersection of Washington Avenue and LaSalle Street. He observed Mr. Scott loitering in the 2700 block of LaSalle Street between Friendly’s Grocery and a vacant house. The officer stated that he observed four individuals approach Mr. Scott. Each person gave Mr. Scott currency of an indeterminate amount. Mr. Scott then started walking in an uptown direction towards Washington Avenue. Mr. Scott then approached the passenger of a white Chevy Malibu. The passenger gave Mr. Scott currency, and then Mr. Scott walked down the alleyway between Friendly’s Grocery and the vacant house. When Mr. Scott returned from the alley, he walked back to the Chevy Malibu and handed the passenger a silver foil object. Mr. Scott then returned to the four people who had approached him earlier and gave each person a silver foil object. Det. Germann obtained a partial license plate 1 ¡¡number of the Chevy Malibu and contacted his fellow officers to search for the vehicle.

Thereafter, Det. Germann observed the transaction between Mr. Scott and Mr. Williams. Det. Germann stated that he saw Mr. Williams exit a Buick and meet with Mr. Scott. Mr. Williams gave Mr. Scott money, and Mr. Scott reached into his waist and pulled out a small plastic bag with a silver object. Mr. Scott took the silver object out of the bag and gave it to Mr. Williams. Mr. Williams went back to his vehicle and handed the object to the passenger, who was later identified as Dru Lilly. Mr. Williams drove off in a downtown direction. At that point, Det. Ger-mann decided to terminate the surveillance and arrest Mr. Scott for distribution of narcotics.

Det. Kyle Hendricks testified that he was in a police vehicle by himself when he received information from Det. Germann about the surveillance and was asked to take down the two vehicles involved. Det. Hendricks was not able to locate the Chevy Malibu, but he did locate the Buick, which was travelling in a downtown direction on LaSalle Street towards Jackson Avenue. Det. Hendricks pulled behind the vehicle and activated his lights and sirens. The driver of the Buick, Mr. Williams, pulled into the parking lot of a grocery store on the corner of Jackson and La-Salle. Sgt. Castellón and Det. Hunter pulled their vehicle in front of the Buick.

As Det. Hunter got out of his vehicle and approached the passenger side of the Buick, he observed that the passenger, Mr. Lilly, was “nervous and wide-eyed.” Det. Hunter saw that Mr. Lilly had a small object in his hand and was reaching down to his right shoe area, as if to conceal the object in his right shoe. Det. Hunter ordered Mr. Lilly out of the vehicle. Once Mr. Lilly stepped out of the |4vehicle, Det. Hunter placed him in handcuffs. Det. Hunter then walked Mr. Lilly over to Det. Hendricks’ vehicle and informed Det. Hendricks that Mr. Lilly had made a movement down to his right shoe with an object.

Det. Hendricks advised Mr. Williams and Mr. Lilly that they were under investigation for narcotics violations. The detective conducted a pat down search of Mr. Lilly and retrieved a silver foil packet from the outer part of his right sock. The foil contained a powder that appeared to be consistent with heroin. After Mr. Williams and Mr. Lilly were arrested, Det. Hendricks relocated them to the 2700 block of LaSalle Street, where he assisted in Mr. Scott’s arrest. No narcotics were found on him, but Mr. Scott was in possession of currency in the amount of two hundred thirteen dollars.

John Palm, Jr., a criminalist with the New Orleans Police Department, was stipulated to be an expert in the identification of controlled dangerous substances. He testified that the powder contained in the foil wrap found on Mr. Lilly had tested positive for heroin.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENTS OF ERROR

On appeal, Mr. Scott raises three assignments of error: that the evidence was insufficient to support his conviction, that the trial court erred in denying his motion for new trial, and that the trial court erred when it considered and denied his motion for new trial without the presence of his counsel. Mr. Williams also raises three assignments of error: that the evidence was insufficient to support his conviction, that the trial court erred in denying his motion for new trial, and that |fithe trial court erred in limiting defense counsel’s cross-examination of Det. Germann at trial. We discuss each defendant’s assignments of error separately.

I. Mr. Scott’s Assignments Of Error

A. Sufficiency of the Evidence

Mr. Scott argues that the State failed to produce sufficient evidence, beyond a reasonable doubt, to support his conviction for distribution of heroin. In his argument, Mr. Scott suggests that Det. Germann’s testimony was not credible because it was not believable that the officer could have conducted surveillance in broad daylight without being noticed.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. Id. Ultimately, all evidence, both direct and circumstantial must be | (¡sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id.

Moreover, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact finder’s discretion only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Higgins, 2003-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232.

La. R.S. 40:966(A) provides, in pertinent part, “[ejxcept as authorized by this Part, it shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I.”

To support a conviction under La. R.S. 40:966(A), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I. Heroin is a Schedule I controlled dangerous substance. La. R.S. 40:961(11). The term “distribute” is defined as “to deliver a controlled dangerous substance ... by physical delivery.” La. R.S. 40:961(14). “Delivery” is defined as the “transfer of a controlled dangerous substance whether or not there exists an agency relationship.” La. R.S. 40:961(10).

A defendant may be guilty of distribution as a principal if he aids and abets in the distribution or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance. State v. Bartley, 00-1370, p. 5 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 31-32. To support a defendant’s conviction as a principal, the State must show that the defendant had the requisite mental state for the crime. State v. Saylor, 01-0451, p. 7 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, 941. Distribution of a controlled dangerous substance only requires general intent. State v. Banks, 307 So.2d 594, 596 (La.1975). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).

In the present case, Det. Germann testified that he saw Mr. Scott give Mr. Williams and the four pedestrians silver foil objects in exchange for currency. Det. Germann also stated that he observed Mr. Williams get into the Buick and hand Mr. Lilly the silver foil object. Det. Hendricks and Det. Hunter testified that the silver foil object, which turned out to be heroin, was found in Mr. Lilly’s shoe. This testimony was sufficient to establish, beyond a reasonable doubt, that Mr. Scott distributed heroin to Mr. Williams.

Further, Mr. Scott’s arguments about Det. Germann’s credibility are without merit. Credibility is an issue to be determined by the trier of fact. The jury heard the officer testify that he conducted surveillance for one and one half hours, using high-powered binoculars. The officer also stated that he had unobstructed view of the area. When questioned about his specific location on cross-examination, Det. Germann declined to give such information because there were ongoing surveillance and investigations in the area. While the officer would not give his specific location, the jury heard the officer’s testimony and determined that it was credible. Such discretion was within the purview of the trier of fact.

1 RThis assignment of error is without merit.

B. Trial Court’s Denial of Motion for New Trial

Mr. Scott argues that the trial court erred by denying his motion for new trial for two reasons: (1) prosecutorial misconduct by the State in preventing Mr. Lilly, the passenger in the Buick driven by Mr. Williams, from testifying; and (2) the ends of justice would have been served by the granting of a new trial because the State improperly required both defendants to agree to a potential plea deal.

La.C.Cr.P. article 851 sets forth the grounds for granting a new trial:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The trial judge has much discretion in ruling on a motion for a new trial and, upon review, the appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner. State v. Hammons, 597 So.2d 990, 994 (La.1992); State v. Lewis, 2005-0973, pp. 3M (La.App. 4 Cir. 5/24/06), 943 So.2d 1100, 1102. If the grant or denial of a new trial pursuant to La.C.Cr.P. art. 851(5) is a question of law, then the appellate or ^supervisory jurisdiction of the appellate courts and Supreme Court is properly invoked. A trial court’s ruling on a motion for a new trial to serve the ends of justice is reviewable under an abuse of discretion standard. State v. Randolph, 275 So.2d 174, 177 (La.1973); State v. Guillory, 2010-1231, p. 3 (La.10/8/10), 45 So.3d 612, 614.

Mr. Scott first argues that the State acted improperly to prevent the testimony of Mr. Lilly. Because Mr. Scott did not urge this prosecutorial misconduct as a ground for his motion in the trial court, we cannot consider it on appeal. However, Mr. Scott suggests that he should be allowed to argue this ground on appeal because it was asserted by his code-fendant, Mr. Williams, in his motion for new trial. We reject that argument.

Mr. Scott next argues that the State acted improperly and prejudicially when it required both defendants to agree to a potential plea deal. Specifically, Mr. Scott asserts that he was prejudiced because he was willing to accept a plea deal but his codefendant was not. This argument fails because the State has discretion to offer, or not to offer, any plea deal in a criminal matter. In the present case, the State made an offer conditioned upon the acceptance of both defendants, but apparently Mr. Williams was unwilling to accept the offer, and thus, the offer was -withdrawn. The State was under no obligation to offer Mr. Scott a separate plea deal. The trial court did not abuse its discretion in denying the motion for new trial on this basis.

This assignment of error is without merit.

hnC. Absence of Mr. Scott’s Counsel from Hearing on Motion for New Trial

Mr. Scott argues on appeal that the trial court should not have considered his motion for new trial without his counsel being present at the hearing. The record does not support Mr. Scott’s argument. Mr. Scott contends that the trial court considered his motion for new trial at the hearings on March 16, 2011, and June 17, 2011, when his trial counsel was not present. A review of the transcripts in the record reveals that the trial court was hearing evidence and testimony in relation to the motion for new trial filed by Mr. Williams on those dates. The trial court did not consider the merits of Mr. Scott’s motion for new trial until May 17, 2012, at which time, the record reflects, Mr. Scott’s trial counsel was present.

This assignment of error is without merit.

II. Mr. Williams’ Assignments Of Error

A. Sufficiency of the Evidence

Mr. Williams argues that the State failed to produce sufficient evidence, beyond a reasonable doubt, to support his conviction for distribution of heroin. He also questions Det. Germann’s credibility on the basis that there was no audio or video recordation of the officer’s surveillance. He contends that the officer’s testimony should not have been accepted because there was no corroboration of his testimony. Mr. Williams also suggests that the officer’s testimony was unbelievable because the officer did not give specific information as to where he was located during the surveillance.

As discussed previously, when reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, supra.

|nUnder that standard, it is not the function of the appellate court to reassess the credibility of witnesses or to reweigh the evidence; the reviewing court’s function is to determine the constitutional sufficiency of the evidence presented. State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4th Cir.1993). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th Cir.1989). Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Woods, 2000-2712, p. 6 (La.App. 4 Cir. 5/29/02), 828 So.2d 6, 10.

La. R.S. 40:966(A) provides, in pertinent part, “Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I.”

As discussed previously, to support a conviction under La. R.S. 40:966(A), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I, which includes heroin. La. R.S. 40:964(B)(11).

In the present case, Det. Germann testified that he saw Mr. Scott give Mr. Williams a silver foil object in exchange for currency. The detective also stated that he observed Mr. Williams hand Mr. Lilly the silver foil object when Mr. | ^Williams got into the vehicle. Dets. Hendricks and Hunter testified that the silver foil object was found in Mr. Lilly’s shoe. The silver foil object was found to contain heroin. The testimony presented was sufficient to establish, beyond a reasonable doubt, that Mr. Williams distributed heroin to Mr. Lilly.

This assignment of error is without merit.

B. Trial Court’s Denial of Motion for New Trial

Mr. Williams next argues that the trial court erred when it denied his motion for new trial. Mr. Williams filed a motion for new trial asserting two grounds: (1) the verdict was contrary to the law and evidence; and (2) the prosecutors engaged in prejudicial misconduct by preventing the defendant from examining Mr. Lilly as a witness. He re-urges those grounds on appeal.

As noted previously, the trial judge has much discretion in ruling on a motion for a new trial and, upon review; the appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner. State v. Lewis, supra, pp. 3-4 (La.App. 4 Cir. 5/24/06), 943 So.2d at 1102.

For the same reasons given in relation to Mr. Scott, we find that the State produced sufficient evidence to support Mr. Williams’ conviction for distribution of heroin. Thus, the trial court did not abuse its discretion in denying the motion for new trial on the basis that the verdict was contrary to the law and evidence.

Mr. Williams also alleges that the State committed prosecutorial misconduct when the prosecutors removed Mr. Lilly from the courtroom on the morning of trial. The trial court conducted a post-trial evidentiary hearing on this issue, at 11swhich Mr. Lilly, Mr. Roman Maney (one of the assistant district attorneys handling the trial) and Mr. Sandy Gavin (the district attorney’s investigator) testified.

Mr. Lilly stated at the hearing that if he had testified at trial, he would have testified that Mr. Williams did not provide him with any heroin. He stated that he would have testified that the heroin belonged to him. Mr. Lilly provided defense counsel with an affidavit reflecting such testimony. Mr. Lilly also stated that he was removed from the Diversion Program once he provided defense counsel with the affidavit, and that he had been told he would be removed from the Diversion Program if he did not cooperate. Mr. Lilly testified that, on the morning of trial, he was removed from the courtroom and taken to the district attorney’s office. Mr. Lilly further stated that, while at the district attorney’s office, he asked if he could go the courthouse but was told he could not leave.

Assistant district attorney Maney testified that he had Mr. Lilly removed from the courtroom because he (Mr. Maney) had observed defendant Williams trying to make eye contact with Mr. Lilly prior to trial. The assistant district attorney took Mr. Lilly to the district attorney’s office out of a concern that Mr. Lilly was potentially being intimidated by the defendants. Mr. Maney stated that, prior to that time, Mr. Lilly had told him only that the heroin belonged to him; Mr. Lilly had never denied having received the drugs from Mr. Williams and Mr. Scott. Mr. Maney stated that when the trial ended, and it was determined that Mr. Lilly’s testimony was not needed by the prosecution, he telephoned Mr. Gavin and instructed him to advise Mr. Lilly that he was not needed and could leave.

Investigator Gavin testified that when he arrived at the district attorney’s office on the morning of trial, Mr. Lilly and his girlfriend were sitting in the office lobby. Mr. Gavin denied that he had prevented Mr. Lilly from going to the | ucourthouse. He testified that he had occasionally checked on Mr. Lilly and his girlfriend while they were at the District Attorney’s office to see if they wanted something to eat or drink. He had not brought Mr. Lilly to the office in the first place and was not aware of why Mr. Lilly was there. Mr. Gavin stated that when the district attorney advised him that Mr. Lilly was not needed as a witness, Mr. Gavin told Mr. Lilly he could leave. Mr. Gavin further testified that he did not know Mr. Lilly was a potential defense witness and had never seen Mr. Lilly in the courtroom.

In denying the motion for new trial, the trial court noted that Mr. Lilly was not on the defendants’ witness lists and had not been subpoenaed by the defendants. The trial court recognized that the defendants knew of Mr. Lilly’s existence and his potential testimony. The trial court also recognized that it was not uncommon to keep witnesses out of the courtroom, especially when the defendants’ family members were in the courtroom.

The United States Supreme Court has recognized that the touchstone of due process analysis in cases of alleged prosecuto-rial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219-20, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). The prosecutor’s actions in the present case did not amount to misconduct and did not impact the fairness of the trial. The defendants were aware of Mr. Lilly’s potential testimony and could have subpoenaed him for trial. However, they chose not to do so.

Mr. Williams also suggests that the State’s removal of Mr. Lilly from the Diversion Program was an attempt to influence his testimony. Placement in the Diversion Program is similar to a plea agreement in that it is a form of contract between the defendant and the State. If the defendant fails to conform to the | ^requirements of the contract, the defendant may be removed from the program. Mr. Williams presented no evidence at the hearing to show that Mr. Lilly’s removal from the Diversion Program was an attempt by the State to influence his testimony. The trial court did not abuse its discretion when it denied the motion for new trial on this basis.

This assignment of error is without merit.

C. Trial Court’s Limiting of Defense Counsel’s Cross-Examination of Det. Germann

Mr. Williams argues that the trial court erred when it limited defense counsel’s cross examination of Det. Germann about his physical location during the surveillance.

Det. Germann testified that he conducted a surveillance of the area for one and one-half hours. He stated that he was approximately one hundred to one hundred-fifty feet from the surveillance area and had an unobstructed view. Det. Ger-mann testified that he was using high-range binoculars that allowed him to see the currency and the foil objects exchanged by the defendants. On cross-examination, defense counsel questioned Det. Germann on how he could see the small objects and asked him to reveal his specific location. Defense counsel attempted to get Det. Germann to testify as to whether he was in a vehicle and as to where the vehicle was parked. Det. Germann refused to answer those questions on the basis that answering them could jeopardize ongoing surveillance operations and investigations. The trial court declined to order Det. Germann to answer the questions. Defense counsel contends that the trial court’s ruling unconstitutionally limited his cross-examination of the witness.

In State v. Huckabay, 2000-1082, pp. 25-26 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1108, this Court discussed a defendant’s right to confront his accusers:

An accused is entitled to confront and cross examine the witnesses against him. La. Const. art. 1, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross examination of the State’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-202. The trial court has the discretionary power to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473.
However, evidence may be excluded if it is irrelevant. See State v. Casey, 99-0023, pp. 18-19 (La.1/26/00), 775 So.2d 1022, 1037. Further, confrontation errors are subject to the harmless error analysis so the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’s story to test the witness’s perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. State v. Nash, 475 So.2d 752, 754-755 (La.1985). The three main functions of cross-examination are: (1) to shed light on the credibility of the direct testimony; (2) to bring out additional facts related to those elicited on direct; and (3) to bring out additional facts which tend to elucidate any issue in the case. Id.

In the present case, the trial court did not abuse its discretion in limiting defense counsel’s questioning as to the officer’s specific location during the surveillance because defense counsel was allowed to extensively question the | ^officer on his ability to see the actual transactions and his observations of defendants’ movements.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the convictions and sentences of Mr. Scott and Mr. Williams.

AFFIRMED.

      . A co-defendant, Dru Lilly, was charged in the same bill of information with possession of heroin. Mr. Lilly pled not guilty at his arraignment on May 20, 2010. On June 29, 2010, Mr. Lilly was accepted into the pre-trial Diversion Program. He was removed from the program on April 12, 2011. Mr. Lilly subsequently pled guilty on April 19, 2011, and was sentenced to four years at hard labor. However, the sentence was suspended, and Mr. Lilly was placed on active probation for four years.

      . Also at the sentencing hearing, the trial court considered and denied Mr. Williams' motion to reconsider its prior denial of his motion for new trial.

      . Specifically, he argues that he is entitled to a new trial because of the State’s actions in not having Mr. Lilly testify at trial. Mr. Scott relies upon La.C.Cr.P. article 842. Article 842 provides that "[i]f an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all defendants.” However, in the present case, each defendant filed his own motion for new trial, asserting different grounds. Thus, La.C.Cr.P. article 842 is inapplicable.