text:
    STATE of Louisiana v. Frederick L. ROSS, Jr.
    No. 2012-KA-0109.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for the Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

Lin this criminal case, the defendant, Frederick Ross, appeals his conviction and sentence for three counts of attempted second degree murder and one count of discharging a firearm during a violent crime. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On July 23, 2010, Mr. Ross was charged by bill of information with one count of attempted second degree murder, two counts of aggravated battery, and one count of discharging a firearm during a violent crime. On July 28, 2010, he pled not guilty. On January 21, 2011, the district court found probable cause. On March 8, 2011, the defense filed a motion to quash on double jeopardy grounds, which the district court denied on April 18, 2011. On May 24, 2011, the State filed a motion in limine to prohibit Mr. Ross from applying makeup to his facial and neck tattoos. The State also amended counts two and three of the bill of information to reflect that Mr. Ross was charged with two additional counts of attempted second degree murder. Mr. Ross then re-entered a plea of not guilty. |2On June 6, 2011, the district court denied defense counsel’s motion to continue the trial. This court denied Mr. Ross’s writ application seeking review of that ruling. State v. Ross, 11-0740 (La.App. 4 Cir. 6/7/11) (unpub.). Mr. Ross’s trial began that same day and concluded on June 8, 2011. The jury found Mr. Ross guilty as charged. On July 11, 2011, the district court denied Mr. Ross’s motions for new trial and post-verdict judgment of acquittal. After waiving delays, Mr. Ross was sentenced to serve fifty years at hard labor on each of his convictions for attempted second degree murder and to serve twenty years at hard labor on his conviction for discharging a firearm. The sentences were ordered to run concurrently and to be served without benefit of parole, probation or suspension of sentence. This appeal followed.

STATEMENT OF THE FACTS

On the afternoon of May 20, 2010, Dijon Cloud, Shakara Peters, and Percy Newman (the “trio”) were standing on the corner of Pauger and North Roman Streets in New Orleans. Ms. Peters is Ms. Cloud’s cousin, and she was visiting from Texas. Ms. Cloud, then nineteen years old, was standing on the steps of a residence located at 2500 Pauger Street and talking on her cell phone. Ms. Peters and Mr. Newman were standing on the side of the residence and flirting with each other. As the trio was standing on the corner, Mr. Ross, driving a red or burgundy colored four-door sedan, circled the block four times. On his fourth pass, he looked directly at Ms. Cloud, pulled out a gun, and began shooting. Several shots were fired, and the trio suffered gunshot wounds to their legs. The gunshot wound that |sMs. Cloud suffered required three surgeries and a ten-day hospital stay. Her leg was badly injured because the bullet entered her thigh and exited in the area of her knee. Ms. Peters and Mr. Newman suffered superficial wounds. Only Ms. Cloud testified at trial; neither Ms. Peters nor Mr. Newman testified.

Ms. Cloud knew Mr. Ross personally; they shared mutual friends. Although Ms. Cloud did not date Mr. Ross, she acknowledged having sex with him on one occasion. Ms. Cloud denied ever meeting any of Mr. Ross’s relatives. She also testified that she had not seen Mr. Ross for several months before the shooting.

Ms. Cloud’s little brother, Justin Cloud (who was thirteen years old at the time of trial), testified that he was returning from the corner store when the shooting began. When he heard gunshots, he hid. Nonetheless, he was able to see the driver of a red car firing shots down Pauger Street. He also saw the driver back up and fire additional shots. After the shooting stopped, Justin Cloud ran to assist his sister, who had collapsed in the street.

Joseph Peters, Ms. Peters’ cousin, was sitting on the steps of his residence located at 2515 Pauger Street talking with some neighbors. When he heard shots being fired, he jumped from the steps, and hid near his pickup truck that was parked in front of his residence. Mr. Peters looked up briefly and saw that the shots were being fired from a burgundy colored car that backed up, firing more shots. After the shooting ended, he could see that possibly three people had been shot. His cousin, Ms. Peters, approached him. She had been shot in the leg, and she was terrified. Mr. Peters called 911, and he sat with Ms. Peters on the tailgate |4of his truck until the ambulances arrived. One of the bullets fired during the shooting entered the living room window of Mr. Peter’s residence, and it was found on his sofa. His residence was across the street and two doors down from the corner where the trio was standing just before the shooting.

Detective Nathan Gex was the lead detective on the case; he was the first officer to arrive on the scene. When he arrived, he observed Ms. Cloud on the ground in agony, and a large pool of blood. She told Detective Gex that “Fred” shot her and that he lived in the general vicinity on Elysian Fields Avenue.

Detective Gex found another victim, Ms. Peters, sitting near a pickup truck that was in front of 2515 Pauger Street; a relative was tending to her. Ms. Peters informed the detective that she saw the shooter but did not know his name. She also told the detective that she could identify the shooter from a photograph.

The third victim, Mr. Newman, ran to a nearby relative’s house after he was shot. He re-appeared on the scene, but was uncooperative when questioned by Detective Gex. Mr. Newman told the detective that he did not see who fired the shots and that a green vehicle was involved. The trio was transported to University Hospital.

Detective Gex observed that the residence on the corner of Pauger and North Roman Streets (at 2500 Pauger) had several bullet holes in the wall and a bullet hole in the front door. He also saw that a bullet traveled through the living room window at 2515 Pauger Street and landed on the sofa.

[ RWhile in the emergency room, Ms. Cloud provided Mr. Ross’s address as 1721 Elysian Fields Avenue. After receiving this information, Detective Gex developed a six-person photographic lineup. The lineup was shown separately to Ms. Cloud and Ms. Peters while they were still in the emergency room. Both victims immediately identified Mr. Ross as the person who shot them. Detective Gex then obtained an arrest warrant for Mr. Ross and a search warrant for the Elysian Fields Avenue address. The search warrant was executed the morning after the shootings. Mr. Ross’s grandmother was there; Mr. Ross was not present. An attempt to execute the arrest warrant at the Elysian Fields Avenue address was unsuccessful because Mr. Ross no longer lived there. On May 24, 2010, four days after the shooting, Mr. Ross turned himself in at Central Lockup.

Eight spent cartridges were recovered at the scene. These cartridges and six bullets were examined by Deputy Tommy Morse, who was qualified as an expert in the field of ballistics comparison and firearm examinations. Deputy Morse determined that all of the cartridges and three of the bullets came from the same forty caliber weapon. Three of the bullets were unsuitable for testing. No firearm was recovered.

At the close of the State’s case, the defense moved for a directed verdict as to counts two and three involving the attempted second degree murders of Ms. Peters and Mr. Newman. The motion was denied, and the defense presented its case.

|fiThe first defense witness to testify was Mr. Ross’s grandmother, Anna May Brown. She testified that Mr. Ross used to live with her at the Elysian Fields Avenue address; he moved out approximately four weeks before the shootings. Ms. Brown stated that she had met Ms. Cloud. She explained that Ms. Cloud would frequently come to the house, knock on the door, and ask for Mr. Ross. She specifically recalled that one night (around 11:00 p.m.) in December of 2009 she was leaving for work — she was a duty nurse — when she encountered Mr. Ross and Ms. Cloud on the front steps of her house. Before leaving, she warned Mr. Ross not to bring anyone into her house. Although she drove away, she returned to the house on a suspicion. She entered the house and found Mr. Ross and Ms. Cloud in her bedroom having sex. After Ms. Cloud was dressed, Ms. Brown threw her out of the house. Thereafter, Ms. Cloud still came to the house looking for Mr. Ross. Ms. Brown recalled the police busting into her house the morning after the shootings looking for Mr. Ross. She stated that she was never shown a search warrant even though she inquired whether the officers had one.

A private investigator, Eddie Guy, also testified for the defense. Mr. Guy testified that the gun strikes to the house located at the corner of Pauger and North Roman Streets were approximately knee high.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER ONE

17Mr. Ross contends that the evidence was insufficient to establish that he had the specific intent to kill with regard to counts two and three, which involved Ms. Peters and Mr. Newman. In reviewing a claim of insufficiency of evidence, courts must apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires the court to determine whether 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. Captville, 448 So.2d 676, 678 (La.1984); see also State v. Brown, 03-0897, p. 18 (La.4/12/05), 907 So.2d 1, 22; State v. Batiste, 06-0875, p. 7 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 814; State v. Sykes, 04-1199, 04-0947, p. 6 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 161. When the State uses circumstantial evidence to prove the elements 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.’ ” State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657.

A conviction for attempted second degree murder requires proof that the offender had the specific intent to kill. State v. Sullivan, 97-1037, p. 20 (La.App. 4 Cir. 2/24/99), 729 So.2d 1101, 1111; State v. Hongo, 96-2060, pp. 2-3 (La.12/2/97), 706 So.2d 419, 420-21. Specific criminal intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and |sthe conduct of the defendant. La. R.S. 14:10(1); State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437.

Mr. Ross argues that the State failed to show he had the requisite intent to kill Ms. Peters and Mr. Newman given that both suffered minimal injuries and that both were able to walk away from the scene. He emphasizes that neither Ms. Peters nor Mr. Newman testified at trial.

The State counters that Mr. Ross’s arguments lack merit because the evidence presented at trial proved that he had the requisite intent to kill Ms. Peters and Mr. Newman under the theory of transferred intent. The theory of transferred intent allows Mr. Ross’s state of mind towards his intended victim, Ms. Cloud, to be transferred to Ms. Peters and Mr. Newman. In this case, it is undisputed that Mr. Ross had the specific intent to kill Ms. Cloud when he pointed a gun directly at her at close range and began firing several shots. See State v. Cooks, 11-0342, p. 17 (La.App. 4 Cir. 12/4/11), 81 So.3d 932, 942, writ denied, 12-0112 (La.5/18/12), 89 So.3d 1189.

The doctrine of transferred intent provides that “[w]hen a person shoots at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kills or inflicts great bodily harm upon another person, if the killing or inflicting of great bodily harm would have been unlawful against the intended victim actually intended to be shot, then it would be unlawful against the person actually shot, even though that person was not the intended victim.” State v. Strogen, 35,871, p. 4 (La.App. 2 Cir. 4/3/02), 814 So.2d 725, 728 (citing State v. Jasper, 28,187, p. 18 (La.App. 2 Cir. 6/26/96), 677 So.2d 553, 566-67). This court applied the doctrine of transferred intent in State v. Norfleet, 96-2122 (La.App. 4 Cir. 10/21/98), 721 So.2d 506, a first degree murder case, in which the defendant intended to shoot a person, who had beaten up his sister, but accidentally shot someone walking with that person.

Applying the doctrine of transferred intent to the facts of this case, Mr. Ross’s specific intent to shoot Ms. Cloud was transferred when he accidentally also shot Ms. Peters and Mr. Newman. Despite the failure of Ms. Peters and Mr. Newman to testify at trial, the fact that they were injured by gunshots fired by Mr. Ross was established through the testimony of Detective Gex and Mr. Peters. Ms. Peters and Mr. Newman required medical attention and were transported to University Hospital. The extent of their injuries is inconsequential. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

By both of these assignments of error, Mr. Ross contends that Article I, § 17 of the Louisiana Constitution, which allows for non-unanimous jury verdicts, violates his constitutional rights. Louisiana Constitution Article I, § 17(A) provides that a case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” Additionally, La.C.Cr.P. art. 782(A) provides that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

|inMr. Ross was charged with three counts of attempted second degree murder and one count of discharging a firearm during a violent crime; both statutes mandate that a sentence of hard labor be imposed. La. R.S. 14:27 (attempt); La. R.S. 14:30.1; La. R.S. 14:94(F). A jury of twelve was empaneled in this case and rendered a unanimous verdict as to count one, and verdicts of ten to two as to counts two and three (attempted second degree murder). A unanimous verdict was rendered as to count four (discharging a firearm during a violent crime). Thus, the proper number of jurors concurred in all the verdicts.

In assignment of error number two, Mr. Ross argues that non-unanimous jury verdicts violate the 14th Amendment Equal Protection Clause because the enactment of the provision was motivated by an express and overt desire to discriminate against African-Americans on account of race. In assignment of error number three, Mr. Ross argues that the allowance of non-unanimous jury verdicts violates his right to a jury trial under the 6th and 14th Amendments. Neither assignment of error number two nor number three was raised in the trial court. “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.C.Cr.P. art. 841(A). Thus, these assignments of error were not preserved for appellate review.

ASSIGNMENT OF ERROR NUMBER FOUR

By this assignment of error, Mr. Ross asserts that the district court erred in granting the State’s motion in limine preventing him from covering his facial teardrop tattoos with makeup during the trial. The record reflects that the State |nfiled its motion in limine on May 24, 2011. Defense counsel acknowledged that he planned to cover Mr. Ross’s facial tattoos with makeup during trial. Although defense counsel noted his intent to present an argument against the State’s motion in limine, the district court moved on to other matters that day, and the motion in limine was not brought up again by either the State or defense counsel. No ruling was ever rendered on the motion in limine, and defense counsel lodged no objection to the district court’s failure to rule on the motion. Thus, this issue was not been preserved for appellate review. La. C.Cr.P. art. 841.

Regardless, even if the issue was properly preserved for review, this assignment of error is without merit. Mr. Ross specifically urges that the State sought to have the tattoos remain uncovered by makeup during trial as evidence of his bad character, evidence of other crimes that he may have committed, or both. Citing Wikipedia, Mr. Ross notes that the teardrop tattoos under his eye can indicate the number of killings he perpetrated, the number of years that he served in prison, or the loss of a loved one or fellow gang member.

The introduction of other crimes evidence is regulated by La. C.E. art. 404(A), which provides (with exceptions) that “[e]vidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Likewise, La. C.E. art. 404(B) prohibits evidence of other crimes, wrongs or acts to prove the character of a person. Other crimes evidence generally is inadmissible because of the risk that the trier of fact will convict the defendant of 112the immediate charge based on his other criminal acts. State v. Jones, 99-0861, p. 17 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 40. The erroneous admission of other crimes evidence is subject to the harmless error rule. State v. Robertson, 06-1537, pp. 8-9 (La.1/16/08), 988 So.2d 166, 171-72 (citing State v. Johnson, 94-1379, p. 17 (La.11/27/95), 664 So.2d 94, 102); State v. Shaw, 07-1427, p. 25 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 412. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely not attributable to that error. Robertson, 06-1537 at p. 9, 988 So.2d at 172.

Mr. Ross cited to no jurisprudence that would support his argument that he was unduly prejudiced by the exposure of his tattoos to the jury. The only jurisprudence he cited was Justice Johnson’s dissent from the denial of rehearing in State v. Wells, 09-2595 (La.12/3/09), 24 So.3d 187. In her dissent, Justice Johnson found the State’s action in seeking to introduce a recorded phone conversation between the defendant and an unidentified female referencing a tattoo on his head to be an attempt to introduce impermissible character evidence. In the phone conversation, the defendant declined to say over the phone what the tattoo that he had acquired while in prison said. The defendant, however, stated that it was similar to the charges filed against him. The tattoo read “assassin,” and he was charged with first degree murder.

In the instant case, the State’s motion in limine sought to have Mr. Ross’s tattoos exposed at trial. In support, the State urged that the tattoos were distinctive to Mr. Ross and relevant to the issue of identification. The only reference to Mr. LkRoss’s tattoos during trial was when Ms. Cloud identified him in court; she pointed him out in the courtroom by noting the red tie that he wore and the tattoos on his face. This case thus is clearly distinguishable from Wells. No testimony was elicited as to the meaning of the teardrop tattoos on Mr. Ross’s face. Cf. State v. Williams, 06-1327, pp. 35-37 (La.App. 4 Cir. 1/23/08), 977 So.2d 160, 180 (finding harmless repeated references by the State as to what the teardrop tattoos on the defendant’s face meant). Furthermore, Mr. Ross was unequivocally identified as the person who fired the gunshots that struck the trio. It is unreasonable to suggest that the jury was inclined to convict Mr. Ross of attempted second degree murder because he had teardrop tattoos on his face. Thus, even had the district court erroneously granted the State’s motion in limine, it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was not attributable to that error. This assignment of error is without merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge. BAGNERIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Vincent GUILLOT.
    No. 2012-KA-0726.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, New Orleans, LA, for Appellee/State of Louisiana.
    John T. Fuller, IV, John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

hThe State charged the defendant, Vincent Guillot, with one count of possession with the intent to distribute heroin, a violation of La. R.S. 40:966(A)(1); one count of possession with intent to distribute diazep-am, a violation of La. R.S. 40:969(B); and one count of possession of marijuana (fourth felony offense), a violation of La. R.S. 40:966(D)(4). Guillot pled not guilty, and later filed a motion to suppress, which the trial court denied.

Thereafter, the State amended the bill of information to add a fourth count, possession of cocaine, a violation of La. R.S. 40:967(C)(2), and to change the charge of possession of heroin with the intent to distribute to simple possession of heroin. Guillot withdrew his previous plea and pled guilty to all charges, as amended, under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of his motion to suppress. The trial court sentenced Guillot to ten years on counts one through three and five years on count four; the sentences were to run concurrently. The trial court also suspended the sentences for each count, placed Guillot on active probation for five years, and ordered him to pay $191.50 in court costs.

Guillot timely appealed.

12At the motion hearing, Sergeant Kevin Imbraguglio (“Sgt. Imbraguglio”), a sixteen-year veteran of the New Orleans Police Department assigned to the First District Narcotics Division, testified that on October 20, 2010, he received information from a concerned citizen that a subject named “Vinny” or “V,” driving a gray Chevrolet Monte Carlo automobile, later identified as Guillot, was selling narcotics in the area of St. Ann and Rocheblave Streets. The concern citizen stated the subject was wearing a red hat and a red shirt and described the subject as a light skinned black male with a beard and long dreadlocks. The citizen informant said the subject lived in the area and stored the narcotics in the Monte Carlo because his grandparents did not allow drugs in their residence.

After receiving this information, Sgt. Imbraguglio set up surveillance that same day on the corner of Rocheblave and St. Ann. During the surveillance, he observed a gray Monte Carlo pull up and a subject fitting Guillot’s description and wearing a red hat and red shirt, exit the driver’s side of the vehicle. He further observed another black male exit the passenger side, while a female juvenile remained in the vehicle. Sgt. Imbraguglio testified that he then observed Guillot and the other man approach a group of individuals loitering at the corner of St. Ann and Rocheblave Streets. Subsequently, Sgt. Imbraguglio advised the officers assisting him in the investigation to move in and “stop” the subjects. Sgt. Imbraguglio approached Guillot, informed him that he was conducting a narcotics investigation and advised him of his Miranda rights. Sgt. Imbra-guglio stated after he informed Guillot of this, Guillot appeared “nervous” and “looked a little |ashaken.” At this point, Guillot advised Sgt. Imbraguglio that his name was Vincent Guillot, but that he also went by “Vinny” or “V.”

Sgt. Imbraguglio further testified that within minutes he called for a narcotics dog to the scene to further corroborate the information he had received from the concerned citizen. When the canine unit, Officer Shaw and a narcotics dog named Rush, arrived, the dog indicated the presence of drugs on the driver’s side of vehicle. Sgt. Imbraguglio then inspected the vehicle and found a pill bottle, displaying Guillot’s name, inside the door frame of the driver’s side that contained marijuana, some heroin, and about six diazepam pills. The officers also recovered twenty-five smaller bags of heroin, amounting to one-half ounce. After discovering the narcotics, Sgt. Imbraguglio placed Guillot under arrest, searched him and found $858.00 on his person. Field tests confirmed that the substances found in the Monte Carlo were marijuana and heroin. Sgt. Imbraguglio also testified that at some point Guillot’s grandparents arrived on the scene. Guil-lot’s grandfather stated the he owned the Monte Carlo, but had allowed Guillot to use it. Guillot’s grandfather also consented to a search of his house because he did not want any contraband in his residence. However, no contraband was found in the residence.

A review of the record reveals no errors patent.

Guillot’s sole assignment of error is that the trial court abused its discretion by denying his motion to suppress. Specifically, Guillot claims the trial court erred in finding that the officer had reasonable suspicion to conduct the investigatory stop and the search of his car.

14At a hearing on a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 708(D).

The trial court is vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The trial court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 01-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218; U.S. v. Seals, 987 F.2d 1102, 1106 (5 Cir.1993).

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. I, § 5; State v. Francis, 10-1149, 10-1150, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 writ denied, 11-0571 (La.10/7/11), 71 So.3d 311. However, a law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him, his name, address, and an explanation of his actions. La.C.Cr.P. art. 215.1(A); see also, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983).

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Dank, 99-0390, p. 4 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, 155 recitations omitted). Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. Id. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. Id. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. Id. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. Id. at p. 5, 764 So.2d at 155. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. Id. Deference should be given to the experience of the officers who were present at the time of the incident. Id.

Guillot argues that the anonymous tip combined with the officer’s observations were insufficient to justify an investigatory stop. He claims that the only information corroborated by the surveillance was that a subject matching the anonymous tipster’s description was driving a gray Monte Carlo. Guillot emphasizes that the officers only observed his talking with individuals at the corner and not any illegal activity prior to initiating the stop. Guillot further argues that subsequent confrontation and search was unlawful and, thus, the evidence seized should be suppressed. In support of his argument, Guillot relies on State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268.

The State, on the other hand, argues that Sgt. Imbraguglio had reasonable suspicion to stop Guillot because the officer’s independent observations corroborated the details of the tip provided by the concerned citizen, including: the physical description of Guillot, his clothing, and the car he was driving; the | ^location where he could be found; the crime he was engaged in; the details of his personal life; and his nickname.

Generally, for an anonymous tip to provide reasonable suspicion there must be some corroboration of the anonymous tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Robertson, 97-2960 at p. 5, 721 So.2d at 1270. Whether an anonymous tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Dank, 99-0390 at p. 4, 764 So.2d at 155. The sufficiency of an anonymous tip under Terry v. Ohio is determined by the reliability of its assertion of illegality and not just its tendency to identify a determinate person. Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000); State v. Johnson, 01-2436, p. 2 (La.1/25/02), 806 So.2d 647, 648.

The anonymous caller’s ability to predict the suspect’s future behavior goes towards reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. Robertson, 97-2960 at pp. 7-8, 721 So.2d at 1270; see also, State v. Wilson, 99-2334, pp. 6-7 (La.App. 4 Cir. 3/15/00), 758 So.2d 356, 359 (citing Alabama v. White, 496 U.S. at 332, 110 S.Ct. at 2417). Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect. Robertson, 97-2960 at pp. 7-8, 721 So.2d at 1270.

In Robertson, the police officers received an anonymous tip from a concerned citizen that the defendant, who was named and described, was selling |7drugs within the Magnolia Housing Development. The tip also described the defendant’s vehicle and provided an address where the vehicle would be parked when the defendant was not using it to sell drugs. After going to the location, the officers saw the vehicle being driven away and followed the vehicle. When the defendant parked and exited the vehicle, the officers detained him and called for a canine. When the dog indicated that an odor of narcotics was coming from inside the vehicle, police entered the vehicle and discovered a large plastic bag filled with crack cocaine underneath the ashtray. Thereafter, the defendant was placed under arrest. The trial court denied the defendant’s motion to suppress the evidence, and this Court denied the defendant’s writ application. The Louisiana Supreme Court reversed, finding that, although the officers corroborated certain aspects of the tip, such as the defendant’s name, physical description, and the location of the vehicle, the tip contained no predictive information and, therefore, there was no reasonable suspicion to stop defendant. Robertson, 97-2960 at pp. 5-7, 721 So.2d at 1270-1271.

It is well-settled “thát the determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer’s subjective beliefs or attitudes but turns on a completely objective evaluation of all circumstances known to the officer at the time of his challenged action.” State v. Kalie, 96-2650, p. 1 (La.9/19/97), 699 So.2d 879, 880, citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Based on our review of the record, we find the instant case is distinguishable from Robertson. Here, Sgt. Imbraguglio, an experienced narcotics detective, received a tip from a concerned citizen that he was able to corroborate as completely accurate through his surveillance. He observed Guillot and another |8man exit the vehicle, leaving a female child alone in the vehicle, and approach a group of individuals loitering at the street corner. Although Sgt. Imbraguglio never observed Guillot exchange drugs with another person at the corner, we find, based on the officer’s training and experience and his corroboration of the tip, he had the reasonable suspicion needed to conduct an investigatory stop once the young child was left unattended in the vehicle that the officer believed contained illegal drugs. At that point, the officer was objectively justified in pursuing a means of investigation that would quickly confirm or dispel his suspicions. La. C. Cr. P. art. 215.1(A); see State v. Terrence Turner, 12-0180, p. 3 (La.3/01/13), 108 So.3d 753 (per curiam), citing State. v. Miller, 00-1657, p. 3 (La.10/26/01), 798 So.2d 947, 949. Moreover, only a few minutes passed between the time the officers stopped Guillot, Sgt. Imbraguglio advised him of his Miranda rights and verified his identity, and the canine unit appeared at the scene and alerted to drugs in the vehicle. At that point, the officers had probable cause to arrest Guillot and search the vehicle. Under these circumstances, we find the trial court did not abuse its discretion in denying Guillot’s motion to suppress.

Accordingly, we affirm Guillot’s conviction and sentence.

AFFIRMED

BAGNERIS, J., dissents.

BAGNERIS, J.,

Dissents.

| [Although the tip provided by the concerned citizen may have provided accurate information with regard to Defendant’s clothing and physical location, as noted in State v. Robertson, 97-2960, p. 5 (La.10/20/98), 721 So.2d 1268 at 1270, 1271, this tip did not have the additional corroboration and predictiveness to provide reasonable suspicion that Defendant was engaged in criminal activity. I disagree with the majority’s finding that the officer’s observation that Defendant had left a minor child in his vehicle amounted to the additional corroboration required to justify this investigatory stop. Therefore, because the officers lacked reasonable suspicion to conduct the investigatory stop, the evidence subsequently seized pursuant to this unlawful stop should be suppressed. Accordingly, I would reverse the trial court and grant Defendant’s motion to suppress.

      . The police report indicates the female juvenile turned 11 years of age a week before the incident.

      . Sgt. Imbraguglio specifically testified that the contraband tested positive for marijuana and heroin. The police report also provides that diazepam pills were identified through internet software.


author: MADELEINE M. LANDRIEU, Judge.

text:
    BEEBE’S ON THE LAKE, LLC, Christopher Macaluso and Brenda Macaluso Newman v. Kyle Walker and David J. SKANSI.
    No. 2012-CA-0672.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2013.

      James E. Shields, Shields & Shields, APLC, Gretna, LA, for Plaintiff/Appellant.
    Walter Woodruff, Jr., Eric A. Bopp, Edward S. Bopp, A Law Corporation, Mande-ville, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

| plaintiffs, Beebe’s on the Lake, LLC, [“Beebe’s”] Christopher Macaluso and Brenda Macaluso Newman, appeal the trial court’s judgment dismissing their claims with prejudice after trial on the merits. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On June 30, 2007, Christopher Macaluso, on behalf of his limited liability company Beebe’s, entered into a written agreement with David Skansi to lease the ground floor of Mr. Skansi’s building at 7224 Pontchartrain Boulevard for the purpose of operating a jazz club and restaurant. In August of 2007, Mr. Macaluso opened his club/restaurant, Beebe’s on the Lake. Sometime in early January, 2009, after operating Beebe’s for approximately a year and a half, Mr. Macaluso posted a sign on the door informing his patrons that Beebe’s would be closed for a two-week vacation. The parties dispute what happened thereafter. It is undisputed that Beebe’s never reopened. On or about February 5, 2009, Mr. Skansi tacked a notice of eviction to the door of Beebe’s, which was followed by formal eviction 12three weeks later. On February 10, 2009, Mr. Macaluso, his mother Brenda Macaluso Newman, and Beebe’s filed suit against Mr. Skansi alleging wrongful eviction, breach of the lease, trespass, conversion and various intentional torts. Mr. Skansi filed a reconventional demand claiming the plaintiffs had abandoned the leased premises while owing him rent and other expenses. Mr. Skansi asserted his right to exercise a lessor’s lien over certain movables left on the premises, and prayed for judgment against the plaintiffs “in an amount to be determined by” the trial court.

The matter was tried by the district court on July 20-21, 2011. On December 15, 2011, the trial court rendered judgment dismissing with prejudice all the plaintiffs’ claims against Mr. Skansi; denying Mr. Skansi’s reconventional demand insofar as it sought any amount beyond what he had already retained pursuant to his lessor’s lien; and denying both parties’ requests for attorney’s fees. The trial court also issued written Reasons for Judgment. The trial court found that the evidence, specifically Mr. Macaluso’s behavior and the email communications between him and Mr. Skansi, belied Mr. Macaluso’s attempt to prove that he did not owe any rent arrearages but had actually overpaid. The trial court also found that the evidence failed to support Mr. Macaluso’s claim that he had been wrongfully evicted. Finally, the trial court found that there was insufficient | .¡evidence to support the plaintiffs’ claims that Mr. Skansi had violated the lease or had intentionally converted the leased property to his own use.

The plaintiffs appeal the judgment. Mr. Skansi filed an answer to the appeal challenging the trial court’s denial of his recon-ventional demand and the denial of his request for attorney’s fees. Because the answer to the appeal was not filed timely, the issues raised by Mr. Skansi are not properly before this court and therefore have not been considered.

ISSUES

Plaintiffs assert nine assignments of error. For the following reasons, we address only four of those assignments.

The primary issue on appeal is whether the trial court erred by concluding that the termination of the lease and the eviction of Beebe’s was proper under the law. The plaintiffs’ first three assignments of error challenge that conclusion of the trial court by questioning the factual findings upon which the conclusion was based, namely: (1) that Mr. Macaluso violated the terms of the lease by failing to timely pay rent and utilities; (2) that Mr. Skansi did not breach the lease by denying entry to Mr. Macaluso or locking him out; and (3) that Mr. Macaluso abandoned the lease, and therefore, Mr. Skansi did not breach the lease by failing to provide thirty days written notice by certified mail of Mr. Macalu-so’s default prior to eviction. In addition to these assignments, we also address the plaintiffs’ |4fifth assignment of error, by which they contend that the trial court wrongfully failed to award damages to Brenda Newman for the loss of her equipment that was left on the leased premises.

We do not address the plaintiffs’ fourth assignment of error, which raises an issue regarding the propriety of Mr. Skan-si’s acting on behalf of his ex-wife Laura Skansi. At the time in question, Ms. Skansi co-owned the building but did not sign the lease. That issue cannot be considered by this court because the trial court did not address it, and because the only party that would have standing to raise the issue is Laura Skansi, who is not a party to the district court suit or the appeal.

The remaining assignments of error (Nos. 6, 7, 8 and 9) relate to damages, costs and attorney fees to which the appellants contend they are entitled in the event this court reverses the trial court’s judgment on the merits. Our affirmation of the judgment moots those issues.

STANDARD OF REVIEW

The lease agreement in this case is not ambiguous, nor is its interpretation at issue. The trial court reached its conclusion by applying the terms of the lease to the facts that it found were supported by the preponderance of the evidence. Because the appellants assign error to these factual findings, the appropriate appellate standard of review is manifest error. See Jerome v. Dep’t of Police, 2008-0916 (La.App. 4 Cir. 1/28/09), 4 So.3d 896, 897.

|,DISCUSSION

I. Breach of Lease/ Wrongful Eviction (Assignments of Error 1-3)

The primary witnesses at trial on these issues were Mr. Macaluso and Mr. Skansi, whose versions of the facts differed substantially. As reflected in the Reasons for Judgment, the trial court found Mr. Skan-si’s version of the facts to be more credible largely because it was supported by the objective evidence of the emails and telephone messages exchanged by the parties.

Mr. Skansi testified that in 2007, he met with Mr. Macaluso four or five times to negotiate the lease. Then, prior to signing the lease, he and Mr. Macaluso had lunch with Mr. Skansi’s ex-wife, Laura, who orally agreed to lease the property to Mr. Macaluso. By December of 2008, Mr. Macaluso had missed three of four rent payments, as reflected by the email communications between him and Mr. Skansi. As a result, Mr. Macaluso suggested that Mr. Skansi select some of the valuable art work owned by Mr. Macaluso to hold as security for the unpaid rent. On December 15, Mr. Skansi selected two paintings and took them for this purpose. Mr. Skansi testified that on January 6, 2009, he was in his office working when the electricity was turned off in the building. Mr. Skansi immediately called Mr. Macaluso. Mr. Macaluso, who was out of town but did not reveal this fact, had no explanation for the electricity being off, but he asked Mr. Skanski for permission for two female employees of Beebe’s to come in the next Ifiday to remove perishable food stored in the freezer. Mr. Skansi did not realize until the next day, when he first noticed a sign to this effect on Beebe’s front door, that Beebe’s had closed for a two-week vacation beginning January 3rd.

After speaking with Mr. Macaluso, Mr. Skansi had his secretary contact the utility company, Entergy. Entergy informed her that the power had been disconnected due to nonpayment of the bill, and it would cost approximately $1,100 to have it reconnected. Mr. Skansi had the electricity changed back to his name and paid to have the power reinstated. He let the two females into the building the next day at about 5:30 p.m., and left with them still on the premises. When he returned to the building at 8:30 a.m. the following morning, he could not get inside because the locks had been changed. Mr. Skansi immediately called Mr. Macaluso and expressed his fear that an unauthorized person, perhaps one of the two females who had come in earlier, had changed the locks. Mr. Skansi informed Mr. Macaluso that, for security purposes, he was going to have the locks changed again and the restaurant boarded up, which he proceeded to do.

Mr. Skansi testified that he next heard from Mr. Macaluso on January 10, when he received the following email message, which was introduced into evidence:

David:

Thanks for talking with me today. To recap our conversation, I’ve had it with Beebe’s and I need to close in order to avert bankruptcy and/ or a coronary. As you stated, the monies I owe you are around Ilk and it is my intent to pay this debt. I understand Melissa [Melissa Gehring, Mr. Skansi’s secretary] will send me an itemized hard number via email this week on what I owe you. Also, as we discussed I will get an appraiser in |7their [sic] this week to declare a value on the equipment I own. At that point, I am willing to either sell the equipment or leave it in the building if it makes it easier for you to rent the space and have the equipment bought by the new leaser. I will need to get in the building this week to have the video poker machines removed. I need to do this or face uncomfortable consequences from the state. I will stay in touch with you and let you know how things are progressing. Once again, thanks for the opportunity and I wish it had worked out.

Mac

Mr. Skansi further testified that Mr. Ma-caluso never requested another key or attempted to get back into the building after that. He stated that when he changed the locks, he had no intent to lock Mr. Macalu-so out; in fact, he continued to let delivery people into Beebe’s. Mr. Skansi also testified that he owned all the equipment in the building and leased it, along with the premises, to Mr. Macaluso, as was detailed in Exhibit A attached to the lease. He testified that he leased the equipment without charge because he felt sorry for Mr. Macaluso in the wake of Hurricane Katrina. Mr. Skansi stated that he viewed Mr. Macaluso’s January 10th email as notice that Mr. Macaluso was abandoning the lease. He testified that Beebe’s had been losing money every month, but that he had agreed in late 2008 to give Mr. Macaluso another shot at least until after the Christmas season, even though he was behind in the rent. In view of Mr. Macaluso’s decision to terminate the lease on January 10th, Mr. Skansi did not believe it was necessary to provide Mr. Macaluso with a notice of default. Mr. Skansi did not respond to the January 10th email.

According to Mr. Skansi, on January 15, 2009, Mr. Macaluso asked if he and a potential new partner, Ray Newman, could meet with Mr. Skansi | ^regarding confect-ing a new lease. Mr. Skansi agreed, and the meeting occurred at Mr. Skansi’s office on Wednesday, January 21. At that meeting, Mr. Skansi’s secretary produced a computer printout showing that the total amount of rent arrearages and other expenses owed by Mr. Macaluso to Mr. Skansi was $14,500. Mr. Macaluso and Mr. Newman proposed to pay this amount and to put the electricity back in Mr. Macaluso’s name in exchange for signing a new lease. Mr. Skansi testified that he told them he would have to think about their proposal and consult his former wife, Laura, before making a decision.

However, that same afternoon Mr. Ma-caluso left a voicemail message on the answering machine of Mr. Skansi’s secretary informing her that he and Mr. Newman had already gone to Entergy and found out that the name on the account could be changed as soon as Friday (two days from the date of the meeting), which would prevent Mr. Macaluso from having to remove the video poker machines. Mr. Macaluso also sent Mr. Skansi an email the next day, Thursday, begging him to accept the new proposal. That email reads, in pertinent part: “i don’t mind signing a new agreement, but please don’t kick me when i’m down trying to recover [sic].” Mr. Skansi immediately responded with an email saying he was “still not getting the warm fuzzy feeling about a new arrangement,” but he was thinking about some additional things he would require if he were to agree to a new lease.

Later that day, however, Mr. Skansi became angry when he learned of the telephone message that had been left for his secretary the day before. At 5:80 p.m. on that Thursday, January 22, Mr. Skansi sent another email, [9which expressed his displeasure that Mr. Macaluso and Mr. Newman had already inquired about having the name changed on the electrical service account. That email reads, in pertinent part: “I told you guys not to count on anything until I thought about it and talked to my former wife.... But, based upon the above and looking at how much work this lease arrangement creates for me, I am not interested in starting over with you guys.... Let this be your notice of termination.”

On February 5, 2009, Mr. Skansi sent Mr. Macaluso an email informing him he was beginning the formal eviction process. That same day, he had a notice of eviction attached to the door of Beebe’s, followed by formal eviction 8 weeks later. Mr. Skansi testified that he never received a check for $14,500 signed by Mr. Newman. He farther testified that he still held two paintings he had accepted from Mr. Macaluso in December, 2008, as security for his debt, and that he was willing to keep those in exchange for the $14,500 Mr. Macaluso owed him. He stated that neither Chris Macaluso nor his mother, Brenda Newman, had ever asked to get into the building to retrieve any equipment, although he had allowed other Beebe’s em-ployeés who had asked to go in and get various items that belonged to them.

Mr. Macaluso’s testimony varies significantly from that of Mr. Skansi. According to Mr. Macaluso, he first learned that the electricity to the building had been turned off when he received a phone call from the 110manager of Beebe’s, Mark D’Amico, a day or so before Mr. Skansi called to tell him about the power being off. Mr. Maca-luso further testified that he told Mr. Skansi that he would call Entergy himself, which he did. He stated that the Entergy representative told him Beebe’s owed $4,000.00. When Mr. Macaluso called Mr. Skansi back and gave him that information, Mr. Skansi demanded the whole amount, which Mr. Macaluso did not have. Mr. Macaluso denied that he asked permission from Mr. Skansi for two female employees to enter the building, stating that he did not need such permission. He testified that the two employees who went in only took perishable food; they did not change the locks.

Mr. Macaluso denied at trial that Mr. Skansi had told him he was having the locks changed again for security purposes. However, this statement was contradicted by Mr. Macaluso’s deposition testimony. Mr. Macaluso introduced various cancelled cheeks in an effort to prove that he was not behind on his rent payments, but had actually paid more rent than he owed. He indicated that many of his payments, both cash and check, weren’t credited because he made the payments to Laura Skansi under an arrangement she had with David Skansi. He also testified that Laura Skan-si had held a luncheon at Beebe’s during the Christmas holidays and that David Skansi had hosted a New Year’s Eve party there, the tabs for which ($1750 and $600, respectively) were supposed to be deducted from his rental obligation. Despite claiming he was not in arrears, however, Mr. Macaluso acknowledged that in December of 2008 he had offered Mr. Skansi some valuable artwork to hold as security for his debt, and that Mr. Skansi had [1Taccepted that offer and had taken two paintings on December 15th. Mr. Macalu-so also acknowledged that the equipment located on the premises was already there when he took over the lease. Mr. Macalu-so did not produce any profit or loss statements relating to Beebe’s.

Mr. Macaluso was unable to explain his January 10th email, in which he acknowledged that he owed Mr. Skansi at least $11,000 and stated that he was “giving up” on Beebe’s, other than to say he was “stressed out” when he sent the email. Regarding the January 15, 2009 letter to Mr. Skansi written on Mr. Macaluso’s behalf by his attorney, which similarly acknowledged that Mr. Macaluso owed at least $11,000 in back rent and asked for a meeting to discuss a new deal, Mr. Macalu-so testified that the purpose of that letter was simply to get back into the building. He further testified that at the January 21st meeting, he heard Mr. Skansi say he would have to consult Laura Skansi before he could agree to anything, but he nevertheless assumed the deal was done because he believed Laura Skansi would consent to the new arrangement.

Additional witnesses who testified concerning the events that preceded the eviction were Mr. Skansi’s ex-wife, Laura; his secretary, Melissa Gehring; Ray Newman; and Beebe’s manager Mark D’Amico. Laura Skansi confirmed her ex-husband’s testimony that she had agreed to lease the co-owned property to Mr. Macaluso. She further testified that she thought she had signed the lease but could not prove it. She testified that she often accepted rent payments from Mr. Macaluso, some in the form of checks and some cash. She did not testify that Mr. Macaluso had overpaid 112his rent. In fact, she stated that she knew the rent was in arrears in January of 2009, but could not say by how much. She stated that she would not have evicted Beebe’s.

Ms. Gehring corroborated Mr. Skansi’s testimony as to the events that occurred. She testified that when the power was turned off in early January, she had arranged with Entergy to have the name on the account switched from Beebe’s to Mr. Skansi and had paid approximately $1100 to have the electrical power restored to the building. She stated that she kept monthly records of the rent payments, and that beginning in March of 2008, Beebe’s was frequently behind in paying its rent. When Beebe’s missed a payment, she would call and email Mr. Macaluso. She would then record when he paid and the amounts paid, including when those payments were made to Laura Skansi. Ms. Gehring testified that, according to her recollection, Beebe’s was in arrears by $11,000 in December, 2008, and by approximately $14,000 in January, 2009. Ms. Gehring stated that the printout of the spreadsheet she distributed at the January 21st meeting had not been created by her that day, but was a running tally that reflected the information she had entered over the course of the lease. She confirmed that the parties had not reached an agreement by the conclusion of that meeting. She also identified the voicemail left on her telephone answering machine that same afternoon from Mr. Macaluso informing her that he and Mr. Newman had gone to Entergy and inquired about how soon the account could be switched back into Beebe’s name. Ms. Gehring stated that she specifically remembered Mr. Skansi having told Mr. Macaluso and Mr. 11sNewman at the meeting that they were not to do anything at all with Entergy.

Ray Newman testified that he was present at the January 21st meeting and that he heard Mr. Skansi say he had to speak to Laura before deciding whether to accept the proposed new deal. He confirmed that he and Chris Macaluso believed Ms. Skan-si would approve the deal, so they proceeded accordingly. He further testified that after the meeting, he wrote a check to Mr. Skansi for $14,500 in order “to help Chris” and delivered it to Mr. Skansi’s attorney on January 22, but the check was never cashed.

In view of the evidence, we find no manifest error in the trial court’s ruling that Mr. Skansi was entitled to evict Mr. Macaluso. First, there clearly was sufficient evidence for a reasonable trier of fact to have concluded that in early January, 2009, Beebe’s was not only in arrears as to its rent but also had failed to pay the utilities timely as it was obligated to do under the lease.

According to the lease, the tenant’s failure to meet either of these obligations is a default sufficient for the landlord to terminate the lease if proper notice is given. The lease states that in the event the tenant defaults and:

Tenant fails to cure any of said defaults within thirty (30) calendar days after giving of notice thereof by Landlord to Tenant, then in said events or any of them, Landlord may, at Landlord’s option exercise any of the following rights and remedies: (1) Landlord may terminate this lease by giving notice of such election to Tenant, and Tenant waives any and all rights it may have to receive notice to vacate the Premises....

| ^Another provision of the lease specifies:

All notices hereunder shall be in writing. All notices to Tenant shall be sent by hand or by certified mail addressed to Tenant at 7224 Pontchartrain Boulevard, New Orleans, LA 70124.

Mr. Skansi admits that he did not provide Mr. Macaluso with notice of default by certified mail as stipulated in the lease. For this reason, the plaintiffs argue that Mr. Skansi had no right to evict Beebe’s. This argument ignores the January 10, 2009 email from Mr. Macaluso to Mr. Skansi in which Mr. Macaluso clearly states he is giving up on the lease. It constitutes a default under the lease if the tenant “abandons, vacates or illegally uses the Premises ...” However, the lease does not specifically address the consequences of the tenant’s abandoning the lease itself. In the January 10th email, Mr. Macaluso not only acknowledges that he is in default under the lease, but also expresses his desire to give up on the lease because of his inability to cure the default. In view of this email, we find that Mr. Macaluso himself terminated the lease. We therefore conclude that the trial court did not err by concluding that the lease was terminated and there was no wrongful eviction.

II. Claim of Brenda Macaluso Newman (Assignment of Error 5)

The plaintiffs argue that the trial court erred by failing to award Brenda Newman damages for the loss of her musical equipment that she left on the leased premises. However, the lease provides that the landlord has a lien on all movables “belonging to Tenant and or located on or in the Premises” (emphasis added) for the payment of rent and all other charges due under the lease. This language |1Bclearly indicates that the landlord’s lien can extend to movables that do not belong to the tenant if those movables were left on the premises. The trial court specifically found that Mr. Skansi was adequately compensated for the tenant’s arrearages by his lessor’s privilege and his retaining of the two paintings he held as security. Therefore, we find no manifest error in the trial court’s denial of Ms. Newman’s claim.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

      . Mr. Skansi leased the premises to a third party in June of 2009.

      . Ms. Newman, a musician who regularly performed at Beebe’s, sought damages for Mr. Skansi's alleged conversion of musical equipment belonging to her that she had left on the leased premises.

      .A second named defendant, Kyle Walker, an employee of Mr. Skansi, was voluntarily dismissed by the plaintiffs just prior to trial.

      . La. C.C.P. art. 2133 provides, in pertinent part, that an appellee who desires to have the judgment modified, revised or reversed in part, or who seeks damages beyond those awarded by the trial court, "must file an answer to the appeal, stating the relief demanded, not later than fifteen days after ... the lodging of the record.” The record was lodged in this case on May 7, 2012. The answer was filed on June 15, 2012. The answer is therefore untimely.

      . The only copy of the lease produced by the parties lacked Laura Skansi's signature. Laura Skansi testified that she thought she had signed the lease, but did not really remember, she also testified that she had agreed with Mr. Skansi to lease the premises to Beebe’s.

      . Mr. Skansi explained that although he and Laura had separated, the community property between them, which included the property at issue, had not been partitioned. He testified that he did not know why Laura had not signed the lease that was admitted into evidence.

      . Mr. Skansi operated his shipping business out of an office located on the second floor of the building; Beebe’s leased the remainder of the building, with the restaurant being located on the first floor. According to the lease, the lessee, Beebe's, was responsible for paying the electricity bill because there was only one meter for the building.

      . The evidence demonstrated that this notice was a 5-day notice to vacate. Five days later, on February 10, Mr. Macaluso filed the instant lawsuit.

      . We note, however, that Mr. Skansi’s January 22, 2009 email stating that the tenant should consider it his formal notice of termination occurred more than thirty days prior to the formal eviction.


author:
JOY COSSICH LOBRANO, Judge.
      LOVE, J.,

text:
    Irma REGIS v. DEPARTMENT OF POLICE.
    No. 2012-CA-1692.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2013.

      C. Theodore Alpaugh, III, Claude A. Schlesinger, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Shawn Lindsay, Elizabeth Robins, Assistant City Attorneys, Sharonda R. Williams, Chief of Litigation, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

h Sergeant Irma Regis, an employee of the New Orleans Police Department (NOPD) assigned to the Eighth District, seeks review of the decision of the Civil Service Commission (Commission), denying her appeal of the discipline imposed by the appointing authority, the NOPD. For the reasons that follow, we reverse the Commission’s decision.

The NOPD issued a disciplinary letter to Sgt. Regis, finding that she violated La. R.S. 32:361.1(B) by operating her personal vehicle with window tint without an authorized state exemption. The NOPD found that Sgt. Regis violated NOPD Operations Manual Rule 2: Moral Conduct, paragraph 1 — Adherence to Law, which provides:

Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans, but when in another jurisdiction shall obey the applicable laws. Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirements of this rule.

|2The NOPD determined that the appropriate discipline was a letter of reprimand. After receiving the disciplinary letter, Sgt. Regis filed an appeal with the Commission.

The Commission appointed a hearing officer to receive testimony. At the hearing, NOPD Sgt. Gregory Torregano testified that he was appointed to investigate an incident in which the police stopped Sgt. Regis for driving her-personal vehicle with tinted windows in violation of state law. Sgt. Torregano testified that he utilized a tint meter to determine whether the tint on Sgt. Regis’ personal vehicle violated La. R.S. 32:861.1, which it did. He noted that he attempted to determine whether Sgt. Regis had received a security exemption from the Louisiana State Police as provided in La. R.S. 82:361.3, but found no proof that she had.

Sgt. Regis admitted that she violated La. R.S. 32:361.1 by having tint on her vehicle’s windows without the authorized security exemption. She testified that she had applied for the security exemption provided in La. R.S. 32:361.3, and identified a blank security exemption affidavit like the one she had completed. Upon completing the affidavit, Sgt. Regis submitted it to Lt. Derek Frick, the Integrity Control Officer in the Eighth District, who forwarded it to the Louisiana State Police. She then had the tint applied to her vehicle. Sgt. Regis assumed her application for a security exemption was received, and granted, by the Louisiana State Police. However, she denied knowing that the state police would issue her a security exemption sticker to place on her vehicle’s window.

The hearing officer forwarded the matter to the Commission. After reviewing the testimony and evidence, the Commission denied Sgt. Regis’ appeal. |sThe Commission found Sgt. Regis’ assumption that the state police had granted her a security exemption to be unreasonable and concluded she should have confirmed that she had received the exemption prior to tinting her vehicle’s windows. Sgt. Regis timely appealed.

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

“The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority.” Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziate v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. “The protection of civil service employees is only against firmg (or other discipline) without cause.” Cornelius v. Dept. of Police, 2007-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact 14using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id., p. 2, 964 So.2d at 1094-95. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

In her sole assignment of error, Sgt. Regis argues that the Commission erred in denying her appeal because the NOPD failed to prove her actions bore a real and substantial relationship to the efficient operation of the NOPD. Specifically, she argues that Sgt. Torregano failed to testify that her actions impaired the efficient operation of the NOPD, citing Fihlman, 2000-2360, supra.

In Fihlman, Officer Fihlman received a suspension following an accident with another police vehicle. Id., p. 2, 797 So.2d at 785. At the hearing, Officer Fihlman was the only witness called by the NOPD to testify. Id. This Court affirmed the Commission’s decision granting Officer Fihlman’s appeal, noting:

the NOPD offered no evidence of how Officer Fihlman’s actions impaired the efficient operation of the public service other than the conclusory statement in Superintendent Pennington’s disciplinary letter that Officer Fihlman had disregarded laws and policies governing traffic laws and safe driving practices.

Id., p. 9, 797 So.2d at 789.

In response, the NOPD argues that Sgt. Regis’ actions impaired the efficient operation of the NOPD because she violated the public’s trust in the NOPD as a guardian of its safety. The NOPD asserted that “ ‘the public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing | .¡authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust,’ ” quoting Whitaker v. New Orleans Police Dept., 2003-0512, p. 6 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 576. However, the NOPD fails to present testimony or evidence supporting its conclusion that Sgt. Regis’ actions violated the public’s trust in the NOPD as a guardian of its safety.

The NOPD further argues that Sgt. Re-gis’ disregard of the law and the NOPD internal rule had a substantial relationship to the efficient operation of the department because her actions reflected poorly on the department and compromised the safety of her colleagues, citing State v. Dillon, 95-00884 (La.App. 3 Cir. 1/31/96), 670 So.2d 278.

In Dillon, the defendant challenged the constitutionality of La. R.S. 32:361.1, arguing that the statute posed an undue burden on interstate commerce because tint laws varied from state to state and, therefore, could not be used as the basis for a lawful stop, search and arrest. The court found that La. R.S. 32:361.1 was constitutional because the state had a legitimate interest in passing the law, public safety. The court noted that La. R.S. 32:361.1 protects police officers by insuring their safety while pulling over a vehicle, as the officers are able to view the occupants. Id., p. 3, 670 So.2d at 281. Although the state was justified in enacting La. R.S. 32:361.1 for public safety reasons, that alone does not prove Sgt. Regis’ actions bore a real and substantial relationship to the efficient operation of the NOPD.

Lastly, the NOPD contends that Sgt. Regis’ actions provided an obvious impairment to the efficient operation of the NOPD, and testimony on the issue was not necessary. In support of the argument, the NOPD cites Thornabar v. Dept. of Police, 2008-0464 (La.App. 4 Cir. 10/15/08), 997 So.2d 75, and Regis v. Dept. of Police, 2009-1013 (La.App. 4 Cir. 1/27/10), 30 So.3d 261.

In Thomabar, Officer Thornabar admitted that he received a subpoena to appear in court, and that he failed to appear in court. Thornabar, 2008-0464, p. 1, 997 So.2d at 76-77. After the NOPD imposed discipline, Officer Thornabar appealed the discipline to the Commission. Id. The Commission denied the appeal. Id. This Court affirmed the decision of the Commission. Although there was no testimony that Officer Thornabar’s actions impaired the efficient operation of the NOPD, this Court found impairment of the efficient operation of the NOPD as “[t]he failure to honor the subpoena in this case demonstrates an apparent lack of concern for guarding the public’s safety.” Id., p. 6, 997 So.2d at 79. An officer failing to appear for court may result in charges being dismissed, and dangerous defendants being released from jail. This Court distinguished Fihlman, noting that it was not readily apparent how an accident between two police vehicles impaired the efficient operation of the NOPD. Id., p. 5, 997 So.2d at 79.

In Regis, the NOPD disciplined Sgt. Re-gis after several officers consistently stated that Sgt. Regis told a fellow sergeant, “ "You gonna (sic) kill him,’ referring to [an] arrested individual; ‘I’m not gonna (sic) lose my stripes over you; you gonna (sic) cause these officers to lose their jobs;’ and ‘I’m gonna (sic) f— him, he wants to be stupid.’” Regis, 2009-1013, p. 2, 30 So.3d at 262. During the Commission proceedings, the NOPD failed to present specific testimony that Sgt. Regis’ actions on that day impaired the efficient operation of the NOPD. Id., p. 6, 30 So.3d at 264. The Commission found that Sgt. Regis acted unprofessionally |7towards a fellow officer during a lawful arrest, in front of subordinate officers and the general public. Id. After reviewing the record, this Court upheld the Commission’s finding. Id., p. 7, 30 So.3d at 265.

We find Thomabar and Regis distinguishable from the instant case. In both Thomabar and Regis, members of the general public were present during the actions of the involved officers. In this case, the NOPD failed to present testimony that members of the general public were present and observed Sgt. Regis being pulled over in her personal vehicle. Also, there was no evidence that Sgt. Re-gis received a citation requiring an appearance in open court.

In summary, we find the NOPD failed to prove that Sgt. Regis’ dereliction impaired the efficient operation of the NOPD. In the absence of a blatantly obvious impairment such as that found in Thomabar and Re-gis, the NOPD must present evidence that an officer’s dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. We find the Commission’s decision to uphold the letter of reprimand issued to Sgt. Re-gis to be arbitrary and capricious, as the record lacks evidence that her dereliction bore a real and substantial relationship to the efficient operation of the NOPD.

Accordingly, the decision of the Commission is reversed.

REVERSED

LOVE, J., dissents with reasons.

LOVE, J.,

dissents with reasons.

Li respectfully dissent in the decision to reverse the Commission’s denial of Sgt. Regis’ appeal of the discipline imposed by the appointing authority. The Commission’s decision is subject to review on any questions of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12(B); Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094.

The appellant argues that the Commission committed manifest error in dismissing her appeal because the appointing authority failed to demonstrate that appellant’s actions impaired the efficient operation of the NOPD. In the present matter, Sgt. Regis acknowledged a dereliction occurred, namely that the window tint on her personal vehicle was in violation of La. R.S. 32:361.1(B) and that she did not have an exemption sticker from the Louisiana State Police. Her violation of the statute ipso facto impairs the efficiency of the NOPD and is grounds for discipline. See Thornabar v. Dept. of Police, 08-0464 p. 4 (La.App. 4 Cir. 10/15/08), 997 So.2d 75, 78. See also Cittadino v. Dept. of Police, 558 So.2d 1311 (La.App. 4 Cir.1990).

| Jn distinguishing Thomabar, the majority suggests the appointing authority need not demonstrate the impairment to the efficient operation of the NOPD when the general public witnesses a police officer’s violation of the law or receives a citation for the same. Because neither of these circumstances are present in this case, the majority concludes the appointing authority must show evidence of the impairment to the efficient operation of the NOPD. However, police officers are “sworn to uphold the law, and [the NOPD] has the right to expect its officers to conduct themselves in a manner beyond reproach.” Cittadino, 558 So.2d 1311 at 1314. To accept less, only devalues the laws in place.

Furthermore, “the protection of civil service employees is only against firing (or other discipline) without cause.” La. Const, art. X, § 12(B); Cornelius v. Dept. of Police, 07-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724. After review of the record, I find that the appellant’s violation of La. R.S. 32:361.1(B) demonstrates an apparent lack of concern for the efficient operation of the NOPD, providing the appointing authority just cause for disciplining the appellant. Accordingly, I find that the Commission was not manifestly erroneous or clearly wrong in affirming the discipline imposed on the appellant.

      . La. R.S. 32:361.1(B) provides:
      Except as provided by R.S. 32:361.1(C), no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver’s clear view through the front windshield or front side windows, nor place on or affix to the front windshield or the front side windows of a motor vehicle, any transparent material if the material alters the color or reduces the light transmission of the windshield or front side windows.

      . The Sgt. Regis in that case is the same Sgt. Regis in the instant case.


author: MADELEINE M. LANDRIEU, Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Lloyd E. JONES. State of Louisiana v. Lloyd E. Jones.
    Nos. 2012-KA-0565, 2012-KM-0350.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

_JjThe State appeals the district court’s granting of Lloyd Jones’ motion to quash the bill of information based on double jeopardy. Mr. Jones was charged with aggravated flight from an officer, a violation of La. R.S. 14:108(C). For the reasons stated herein, we reverse and remand.

Statement of the Case

Mr. Jones was charged with aggravated flight from an officer, a violation of La. R.S. 14:108.1(C). On August 2, 2011, Mr. Jones filed a motion to quash the bill of information based upon grounds of double jeopardy. In the motion, Mr. Jones asserted that prosecuting him for the aggravated flight charge subjected him to double jeopardy because he had already been prosecuted for the following traffic violations: (1) moving a parked vehicle, a violation of La. R.S. 32:103; (2) improper lane usage, a violation of La. R.S. 32:79; (3) failure to use a turn signal, a violation of La. R.S. 32:105; and (4) failure to obey signs, a violation of La. R.S. 32:56(B). He further asserted that he had pled guilty to all of these traffic charges on November 30, 2010, and had paid fines. Mr. Jones argued that these charges arose out of the same facts, occurring on November 29, 2010, which led to the ^aggravated flight charge, so that double jeopardy attached to his guilty pleas, prohibiting the instant prosecution.

The trial court heard Mr. Jones’s motion on September 22, 2011, and later granted it in open court on November 17, 2011. The State took the instant appeal.

Facts

According to testimony adduced at the June 27, 2011 motions hearing, Officer Paige Brouillette saw a white pickup truck accelerating across the intersection of St. Bernard Avenue and North Derbigny Street on November 29, 2010. According to Officer Brouillette, the white truck was “squealing its tires and pealing out once the light turned green.” The pickup truck continued moving erratically through the streets, and a chase ensued until the pickup truck came to a stop in a driveway and Mr. Jones exited the vehicle. When Mr. Jones got out of the vehicle, Officer Brouil-lette commanded him to “get down in a prone position,” at which time, according to Officer Brouillette, Mr. Jones began to “pick up his shirt.” At that point, Officer Brouillette was not sure what Mr. Jones was doing. A backup officer arrived and used an electronic control device on Mr. Jones, who then complied and was cuffed. Officer Brouillette testified that she did not know how fast Mr. Jones had been driving and that his speed had not been recorded on radar.

The State produced a copy of the police report to the trial court. According to the police report narrative, the following occurred:

On Monday, November 29, 2010 at 2:51 A.M. Officer Paige Brouillette, manning unit 105C, of the First District was on proactive patrol in a fully marked police unit in the area of St. Bernard and |,sNorth Robertson Street, when she observed a White 2007 Chevrolet pickup truck bearing license plate # X775863 at the intersection of St. Bernard Avenue and North Derbigny Street squealing the tires and accelerating at a high rate of speed.
As the truck crossed paths with the police unit he slowed down. The officer activated her head light bar and got behind the vehicle. At this time the driver of the vehicle later identified as Lloyd Jones accelerated to a high rate of speed in an attempt to evade the officer.
Jones turned South onto North Villere Street, West onto Laharpe. As the vehicle turned North onto North Robertson Street, a vehicle traveling the correct way on the road had to swerve onto the shoulder to narrowly avoid getting into a head on collision with the White pick up truck.
The officer observed Jones turn West onto St. Bernard Avenue, then down the wrong way onto North Robertson. Jones veered West onto Annette Street before making a turn onto North Claiborne Avenue. The subject turned onto St. Anthony Street into oncoming traffic before getting back to North Robertson Street. Finally the vehicle came to a stop in a driveway at 2121 Pauger Street after Jones made the wrong way up the one way street.
Officer Brouillette observed Jones exit the vehicle and command him to a prone position multiple times. Jones was hesitant to comply and raised his shirt two times instead of complying to the commands. At which time assisting Officer Melford, Unit 107C, deployed his electronic control device to gain compliance from Jones.
The subject began to comply after the electronic control device was used at which time Officer Brouillette placed Jones in handcuffs that were checked for proper fit and double locked. Officer Brouillette advised Jones of his rights per Miranda, which he acknowledged that he understood.
The vehicle was released to the owner. Jones was transported to University Hospital by Officer Brouillette and was granted medical clearance by the emergency room doctor. The subject was then transported to central lock up w[h]ere custody was transferred to the Orleans Parish Criminal Sheriffs Office and booked accordingly.

Jurisdictional Issue

Mr. Jones has filed a motion to dismiss the appeal as untimely.

14At the November 17th hearing, the State orally noted its “intent to seek an appeal.” However, a December 7, 2011 minute entry reflects that the State filed a “Notice of Intent to File a Writ,” which was granted and given a December 17, 2011 return date. A December 14, 2011 minute entry notes that the State was granted an extension of time to file the writ, and that the trial court assigned a January 4, 2012 return date. On January 5, 2012, the State filed a “Motion and Order to Convert Notice of Intent to Seek a Writ into a Motion for Appeal and Designation of Record.” The trial court granted the motion on January 5, 2012. On that same day, the motion was filed in this court and given case number 2012-KM-0017. On January 6, 2012, the State filed under the same case number a “Notice of Trial Court’s Granting of State’s Motion,” and a “Motion and Order to Supplement State’s Motion to Convert Writ Application to an Appeal.” We subsequently consolidated those motions with the instant appeal under case number 2012-KA-0565.

La.C.Cr.P. art. 914 provides, in pertinent part:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk.
B. The motion for appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence....

In the interest of justice, we find, and the record supports, that when the State orally proclaimed, “[yjour Honor, note the State’s intent to seek an appeal” at the November 17, 2011 ruling, the statement constituted an oral motion for appeal that was made on the same day as the ruling, and therefore was timely for purposes of article 914. La.C.Cr. P. art. 915 provides, in pertinent part:

|sA. When a motion for an appeal is made ... the trial court shall grant or deny the motion within seventy-two hours, exclusive of legal holidays, after the motion is made. The return date shall be seventy-five days from the date the motion for appeal is granted, unless the trial judge fixes a lesser period. When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court.
B. The minute clerk for each section of the trial court shall forward a copy of the notice of appeal to the clerk of the trial court and to the court reporters responsible for preparing the necessary transcripts, within twenty-four hours, exclusive of legal holidays, of the date the appeal is ordered. The clerk of the trial court shall forward a copy of the notice of appeal to the sheriff having custody of the defendant, to the appropriate appellate court, and to each party, within seven days of the date the appeal is ordered. The party moving for the appeal must forward notice that a motion for appeal has been made to the appropriate appellate court within seven days of the date the motion is made. Failure of the minute clerk, the clerk of court, or the party moving for the appeal, to provide notice shall not affect the validity of the appeal.

We acknowledge that in the instant case, the State and the trial court proceeded as if the State had given notice of its intent to file a writ application (rather than an appeal) until January 5, 2012, at which time the trial court granted the State’s motion to convert the notice of intent into a motion for appeal. From that point forward, the proper procedure for taking an appeal was followed. Considering that an oral motion for appeal is permitted and that the State timely made such a motion, under the circumstances presented here we conclude that the appeal was timely filed. We therefore deny the motion to dismiss the appeal.

Assignment of Error

The State asserts that the trial court abused its discretion by granting Mr. Jones’s motion to quash because there was no double jeopardy violation. Mr. Jones argues that the instant prosecution violates his protection against double jeopardy because the evidence needed to convict him of the instant charge was the same as that used in prior prosecutions of him for traffic violations.

I. Standard of Review

We review trial court rulings on motions to quash under an abuse-of-discretion standard. See State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245; State v. Dillon, 2011-0188 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475.

II. Applicable law

The Fifth Amendment to the U.S. Constitution and La. Const. Art. 1, § 15 guaranty that no person shall be twice placed in jeopardy for the same offense. This guaranty protects against 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068, 1069.

La.C.Cr.P. art. 596 provides:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Louisiana courts apply two tests to analyze double jeopardy claims: 1) the Blockburger test, see Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and 2) the “same evidence” test. State v. Steele, 387 So.2d 1175 (La.1980). Under the Blockburger test:

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.-

|7Under the broader “same evidence” test:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of another, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence adduced at trial.

State v. Steele, 387 So.2d 1175, 1177 (La.1980) (Citation omitted).

The same evidence test “considers the actual physical and testimonial evidence necessary to secure a conviction, and concerns its self [sic] with the ‘eviden-tiary focus’ of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence satisfies the prosecution’s burden of proof.” State v. Williams, 2007-0931, p. 5 (La.2/26/08), 978 So.2d 895, 897.

III. Analysis

Mr. Jones asserts that his having pled guilty to four traffic violations—moving a parked vehicle, improper lane usage, failure to use a turn signal and failure to obey signs—precludes his prosecution for aggravated flight from an officer because it subjects him to double jeopardy. La. R.S. 14:108.1, in pertinent part, defines aggravated flight from an officer as follows:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
|⅜(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.
E. Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than two years and may be fined not more than two thousand dollars.

Emphasis added (Sections A, B, and F omitted).

The Louisiana Supreme Court addressed a double jeopardy attack on La. R.S. 14:108.1 in State v. Williams, 2007-0931 (La.2/26/08), 978 So.2d 895. Mr. Williams pled guilty to reckless operation, speeding, failure to wear a seat belt, failure to use a child restraint, and five counts of running a stop sign after being chased by the police. Id., 2007-0931, p. 3, 978 So.2d at 896. The appellate court reversed the denial of a motion to quash the charge of violating La. R.S. 14:108.1, reasoning that the State could not satisfy its burden of proving at least two aggravating acts, see La. R.S. 14:108.1(D), without using the speeding, for which the defendant had already been prosecuted. Id. However, the Supreme Court reversed the appellate court, stating:

[T]he court of appeal erred in analogizing the present case to one in which the state prosecutes a defendant for both felony murder and the underlying felony offense. Speeding is not a lesser and included offense of aggravated flight from an officer; nor is it an element of that offense, as opposed to a statutorily prescribed circumstance from which a trier of fact may find the aggravating element of risk to human life enhancing the offense from a misdemeanor to a felony. Thus, the state was not required to prove that offense as one of the circumstances giving rise to a risk to human life for purposes of aggravated flight from an officer if it could establish that element of |3the offense by other evidence. The police report introduced at the hearing on the motion to quash established that defendant forced other vehicles off the roadway during the chase, a point conceded by the court of appeal, [State v.] Williams, 06-1898 at 6 [(La.App. 5 Cir. 2/27/07), 952 So.2d 823,] and that he may have traveled against the flow of traffic by backing away from Officer McCartney as she approached and nearly collided with the patrol unit occupied by Officers Hill and Matthews. The court of appeal did not concede the latter point, id., but the state correctly notes that by pleading guilty defendant avoided a trial at which it would have the burden of proving beyond a reasonable doubt the required combination of acts in support of the aggravated circumstances of danger to human life to the satisfaction of a trier of fact. In the present case, the information contained in the police report held open the possibility that a rational trier of fact, considering all of the evidence presented at trial, could have found that defendant engaged in conduct giving rise to a risk to human life by first traveling against the flow of traffic however briefly when he backed away from Officer McCartney and nearly collided with the patrol unit occupied by Officers Hill and Matthews and then forced other vehicles from the road in the ensuing high-speed chase with the officers. Thus, from a functional perspective offered by the information contained in the police report, defendant’s guilty plea to aggravated flight from an officer did not necessarily subject him to a second prosecution for conduct as to which he had already been prosecuted.

State v. Williams, 2007-0931, pp. 7-8, 978 So.2d at 898-899.

In the instant case, according to Officer Brouillette’s testimony and the police report, Mr. Jones sped off in an attempt to evade the officer’s lawful stop, a violation of La. R.S. 14:108.1(C). The police report reflects that, during the ensuing chase, Mr. Jones drove the wrong way on more than one roadway and forced another car off the road onto the shoulder to avoid a collision. These two acts fulfill La. R.S. 14:108.1(D), which provides that the human life endangerment component of the offense is satisfied where there are two of the enumerated acts, which include forcing another vehicle to leave the roadway, La. R.S. 14:108.1(D)(1), and traveling against the flow of traffic. La. R.S. 14:108.1(D)(4). However, none of the traffic violations to which Mr. Jones pled guilty involved any of those |10facts. Moving a parked vehicle, improper lane usage, failing to use a turn signal, and failure to obey signs are not mentioned anywhere in La. R.S. 14:108.1.

In State v. Williams, supra, the Court held that a defendant’s guilty plea(s) to one or more of the aggravating circumstances listed in La. R.S. 14:108(D) did not necessarily mean that his subsequent prosecution for aggravated flight from an officer subjected him to double jeopardy, reasoning that those aggravating circumstances are not lesser included offenses of the crime of aggravated flight from an officer. The instant case presents an even weaker argument for double jeopardy because the traffic violations to which Mr. Jones pled guilty are not even listed in La. R.S. 14:108.1(D). Moreover, the facts to which Mr. Jones pled guilty are completely different from those necessary to prove the instant charge. We therefore conclude that there is no double jeopardy violation, and that the trial court abused its discretion by quashing the charges against Mr. Jones.

Decree

For the reasons stated, Mr. Jones’s motion to dismiss the appeal is denied, the trial court’s decision granting the motion to quash is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOMBARD, J., concurs in results with reasons.

LOMBARD, J.,

concurs in results with reasons.

|! This case is problematic. First, I am unconvinced that State v. Williams, 2007-0931 (La.2/26/08), 978 So.2d 895, is necessarily dispositive. The procedural posture of Williams is contrary to the instant ease-this appeal is from a judgment granting the motion to quash whereas the trial court in Williams denied the motion to quash but this court reversed, finding an abuse of discretion, and the Louisiana Supreme Court reversed, finding that this court erred in finding the trial court abused its discretion because “from a functional perspective offered by the information contained in the police report, defendant’s guilty plea to aggravated flight from an officer did not necessarily subject him to a second prosecution for conduct as to which he had already been prosecuted.” Williams, 2007-0931, p. 8, 978 So.2d at 899. Thus, the language of Williams is specific to information contained in the police report in that case and equivocal as to establishment of a general jurisprudential rule beyond that specific case.

Moreover, according to the transcript of the motion hearing on September 22, 2011, the trial judge stated at the end of the hearing:

liJ’ve taken a look at this motion to quash which was originally filed by the public defender’s office, and that motion is, while it may be in proper form, does not meet with good practice, and given the significant nature of the issues involve, I think the Court should allow Mr. Carter on behalf of his client the opportunity to submit a more comprehensive presentation and to -submit any transcripts of any hearings or to conduct hearing is necessary in connection with said motion. So to that extent, this is going to be recessed and reset....

Notably, there is no indication in the record before us whether the defense counsel responded to this invitation and, if so, what he presented to the trial court. Rather, on November 17, 2011, the trial judge summarily granted the motion to quash in open court without reasons based on the “briefs and motion.” Thus, it is not clear whether the trial court based its decision on additional information not in the record. See Uniform Rules-Court of Appeal 2-1.17 (parties may designate portions of the record to constitute record in Court of Appeal). However, because the record before us appears to support the majority, I respectfully concur in the results.

      . During the September 22, 2011 hearing, the assistant district attorney noted, "I have also presented a copy of the complete police report to Your Honor for this hearing.” A copy of the police report is in the record. No objection was made to the State's assertion, and nothing in the record contradicts a finding that a copy of the police report was presented to the trial court for the motion to quash hearing.