author:
PER CURIAM.
     WEIMER, J.,

text:
    In re Robert E. CLARK.
    No. 2009-B-1631.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      Charles Bennett Plattsmier, Baton Rouge, Eric Reiley McClendon, Roseland, for applicant.
    Schiff Law Corporation, Leslie J. Schiff, Opelousas, Robert Elisha Clark, Vidalia, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I t This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert E. Clark, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On January 13, 2007, Dennis Roberts was arrested in Natchez, Mississippi and booked on charges of possession of cocaine. Mr. Roberts, a longtime friend and client of respondent’s, subsequently told law enforcement officers in Concordia Parish that, in return for leniency on his cocaine charge, he could arrange to obtain marijuana from respondent. The officers allowed Mr. Roberts to make telephone contact with respondent, and then followed Mr. Roberts to respondent’s home in Vida-lia, where respondent gave Mr. Roberts a small bag of marijuana. No money exchanged hands.

Thereafter, police officers handcuffed respondent and held him in the front yard while they made a safety sweep of his home. The officers then' obtained a search warrant for the residence, but they did not tell the judge who signed the warrant about the “safety sweep.” The search of respondent’s home turned up 7½ ounces of |2marijuana packaged in various amounts and stored in Ziploc bags. A variety of drug paraphernalia, some with residual amounts of cocaine and marijuana, was also found, as were a bottle containing the prescription drug Xanax, three doses of a muscle relaxant in an unmarked bottle, and a small amount of white powder, which field-tested positive for cocaine.

Respondent was arrested and charged with possession with intent to distribute marijuana, distribution of marijuana, possession of cocaine, and possession of drug paraphernalia. At the time of his arrest, respondent tested positive for marijuana but no other drugs. On January 14, 2007, respondent was released on a $40,000 bond.

In March 2007, respondent self-reported his arrest to the ODC. In June 2007, the ODC filed a petition for interim suspension for threat of harm based on respondent’s arrest. On June 22, 2007, this court placed respondent on interim suspension and ordered him to show cause before a hearing committee why the court should not maintain the interim suspension. In re: Clark, 07-1221 (La.6/22/07), 958 So.2d 675.

Following the hearing on the interim suspension, the hearing committee filed its report with this court, recommending that the interim suspension order be dissolved. On August 13, 2007, respondent entered into a five-year contract with the Lawyers Assistance Program (“LAP”). On August 29, 2007, we ordered respondent to undergo a substance abuse evaluation, the results of which were filed with the court in December 2007. The evaluation revealed no “neuropsychological reason [respondent] could not return to work and continue his practice as a trial attorney.” |sOn January 9, 2008, we dissolved the interim suspension. In re: Clark, 07-1221 (La.1/9/08), 972 So.2d 323.

In the meantime, most of the evidence against respondent in the criminal case was suppressed, including all of the drugs and paraphernalia seized in the search of respondent’s home. Accordingly, by letter dated March 11, 2008, the district attorney for Concordia Parish informed the ODC that there is “no evidence in which to prosecute” respondent on criminal charges and that the matter “was therefore not accepted for prosecution.”

DISCIPLINARY PROCEEDINGS

In March 2008, the ODC filed one count of formal charges against respondent, alleging that his use of marijuana violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

Respondent, through counsel, answered the formal charges, admitting that he began using marijuana in 1994 shortly after being diagnosed with glaucoma. Respondent further maintained that his marijuana use was “personal and limited to weekend use for medicinal purposes only.” He claimed that he stopped using marijuana in January 2007. Respondent also claimed that as a result of an illegal entrapment, he gave a ]4 ounce bag of marijuana to Mr. Roberts, with whom he had been friends for eighteen years, and who also happened to be his client. Respondent admitted he should be sanctioned for this conduct but argued that any sanction [4beyond the six months and seventeen days he served on interim suspension would be “extreme, too severe, and inappropriate.”

Hearing Committee Repent

This matter proceeded to a hearing on the merit s, following which the hearing committee submitted its report. At the outset, the committee addressed the following evidentiary issues raised by respondent:

Entrapment — The committee found that this defense has a limited place in disciplinary proceedings, and any evidence obtained as a result of the alleged entrapment (relevant only as to respondent’s giving marijuana to Mr. Roberts) would be allowed. The committee noted, however, that respondent failed to prove the elements of entrapment. The fact that respondent provided marijuana to Mr. Roberts at Mr. Roberts’ request does not mean that respondent was entrapped. Respondent readily assented and did not need to be persuaded to share his marijuana “to help his friend obtain possibly non-eonsensual sexual favors.”

Suppression — The committee determined that the exclusionary rule does not apply to disciplinary matters, and the evidence that had previously been suppressed would be allowed. The information excluded from the criminal proceeding was allowed into evidence at the hearing because the ultimate goal of the hearing ^committee is to have as complete a record as possible. The committee also noted that because respondent had admitted to marijuana use and to giving Mr. Roberts marijuana, the effect of excluding the evidence obtained through the search warrant would be almost nil as to the result in these proceedings.

Motion by respondent to exclude the deposition of Mr. Roberts — The deposition of Mr. Roberts was taken after the hearing. During cross-examination, respondent’s counsel asked Mr. Roberts about his guilty plea to a charge of contributing to the delinquency of a minor. At that point, Mr. Roberts refused to answer any more questions and left the deposition prior to the completion of the cross-examination. Respondent then filed a motion with the hearing committee seeking to exclude the deposition. However, the committee allowed the deposition into evidence, reasoning that respondent’s objection goes to the weight of the evidence, not its admissibility.

Turning to the merits of the formal charges, after considering the testimony and evidence presented at the hearing, the committee made factual findings consistent with the underlying facts as set forth above. Respondent also testified that the marijuana found in his home belonged to him. He was aware that marijuana is illegal and stated that he used it to ease the symptoms of his glaucoma. He further testified that he willingly and voluntarily gave Mr. Roberts marijuana because Mr. Roberts was his best friend. He also admitted to using marijuana the night he was arrested, which was confirmed by the drug screen.

Based on these findings, the committee determined that respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. The committee ^determined that the applicable baseline sanction ranges from suspension to disbarment.

In aggravation, the committee found that respondent has substantial experience in the practice of law (admitted 1983). The committee also considered respondent’s rationale for giving Mr. Roberts marijuana (so Mr. Roberts could have sex with a girl) to be an aggravating factor, reasoning that respondent knowingly assisted his friend in taking advantage of another person while she was under the influence of an illicit substance. In mitigation, the committee found the following: absence of a prior disciplinary record and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day, with no credit for the time he served on interim suspension. The committee also recommended that respondent maintain compliance with his five-year LAP contract, and pay all costs of these proceedings.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation. Respondent argued that the sanction recommended by the committee is excessive and should be reduced to the time he spent on interim suspension. The ODC argued that the sanction recommended by the committee is too lenient and that a three-year suspension, with credit for the time respondent served on interim suspension, is appropriate in this matter.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous. Contrary to |7Louisiana law, respondent routinely purchased, possessed, and used marijuana from 1994 until January 2007. Further contrary to Louisiana law, respondent delivered a bag of marijuana to Mr. Roberts, resulting in respondent’s January 13, 2007 arrest. At that time, 7½ ounces of marijuana, drug paraphernalia, chlorzoxazone (a muscle relaxant), Xanax, and a small amount of cocaine were found in respondent’s home. The board also determined that the committee correctly decided the evidentiary issues raised by respondent and correctly found that respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.

Based on these findings, the board determined that respondent intentionally violated duties owed to the public and the legal profession. His conduct caused actual harm to the profession. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction ranges from suspension to disbarment.

The board found the following aggravating factors: a pattern of misconduct (use of marijuana from 1994 to 2007), multiple offenses, substantial experience in the practice of law, and illegal conduct. The board agreed with the committee that respondent’s rationale for providing marijuana to Mr. Roberts should also be considered an aggravating factor. The board found the following mitigating factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board, and character and reputation.

Reviewing this court’s prior jurisprudence involving the use and possession of illegal drugs, the board determined that this case is similar to In re: Bertucci, 08-1349 (La.9/26/08), 990 So.2d 1275. In Ber-tucci, the respondent was detained after a traffic stop and found to be in unlawful possession of various drugs and drug | ^paraphernalia. He was released at the scene and taken to a hospital, where he sought substance abuse treatment. Thereafter, Bertucci was charged in federal court with one misdemeanor count of unlawful possession of controlled substances. He was not charged in state court. Bertucci subsequently successfully completed a pre-trial diversion program, and the federal charge was dismissed. This court then imposed a fully deferred two-year suspension upon Bertucci, subject to probation.

The board noted that what differs this matter from Bertucci, however, is that respondent distributed marijuana to Mr. Roberts, while Bertucci was not involved in the distribution of drugs. Cases involving the distribution of drugs show that an actual period of suspension has been imposed, with no time deferred. In Louisiana State Bar Ass’n v. Tilly, 507 So.2d 182 (La.1987), the respondent was arrested after he sold one ounce of marijuana for $100 to an acquaintance who was cooperating with the authorities. A search of Tilly’s grandmother’s residence revealed one-fourth pound of marijuana, drug paraphernalia, and a scale which Tilly claimed to have borrowed from a friend. Tilly pleaded guilty to a charge of distribution of marijuana and was sentenced to three years at hard labor, suspended, and placed on supervised probation with conditions. This court subsequently ordered that Tilly be suspended from the practice of law for two years.

Given the facts of this case, and with particular emphasis upon Bertucci and Tilly, the board recommended that respondent be suspended from the practice of law for two years, with credit for the time he served during his interim suspension. The board also recommended that, following the suspension, respondent be placed on probation to run concurrently with his LAP contract, which is in effect through August 2012.

^Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent has admitted to possessing and using marijuana from 1994 until January 2007. He has also admitted to giving ⅜ ounce of marijuana to Mr. Roberts on the night of his arrest, which under the law is sufficient to constitute the distribution of marijuana. Moreover, at the time respondent was arrested, marijuana and other drugs, as well as drug paraphernalia, were found in his home, all in violation of state law. The fact that this evidence was suppressed in the criminal proceeding against respondent does not require that we exclude it from evidence for | ,npurposes of this disciplinary matter. Accordingly, by his conduct, respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties owed to the public and the legal profession, causing harm to the legal profession. Under the ABA’s Standards for Imposing Laioyer Sanctions, the applicable baseline sanction ranges from a suspension to disbarment.

The aggravating factors consist of a pattern of misconduct, substantial experience in the practice of law, and illegal conduct, including that involving the use of controlled substances. The following mitigating factors are present: absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character and reputation, and remorse.

Considering the record in its entirety, we find the two-year suspension recommended by the disciplinary board is an appropriate sanction for respondent’s ^possession and distribution of an illegal drug. Accordingly, we will suspend respondent from the practice of law for two years, with credit for the time he served on interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Robert E. Clark, Louisiana Bar Roll number 1766, be and he hereby is suspended from the practice of law for a period of two years, with credit for the time served on interim suspension from June 22, 2007 through January 9, 2008. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, J., concurs in part and dissents in part.

WEIMER, J.,

concurring in part; dissenting in part.

|¾1 in no way condone the conduct for which Respondent is being disciplined and concur in the finding that he should be suspended. I dissent regarding the severity of the discipline imposed, noting the hearing committee recommended respondent should be suspended for a year and a day.

To address his marijuana use, Respondent has enrolled in the Lawyers Assistance Program (LAP) and his participation in the program has been termed “exemplary.”

Character witnesses, including two judges before whom Respondent practiced, testified Respondent is a competent professional who does not pose a threat of harm to his clients or the public. The witnesses indicated Respondent’s clients seem to appreciate the work he does and have not complained about him; the witnesses would not hesitate to hire Respondent as their attorney or to refer clients to Respondent. There has been no allegation or evidence any client of Respondent was ever harmed. There was no evidence Respondent was impaired while practicing law.

In mitigation, the Hearing Committee noted the fact Respondent has never been previously disciplined; he self-reported, making a full and complete disclosure; and he had a cooperative attitude. The Disciplinary Board found his good character and reputation were mitigating factors. Respondent was never convicted of any crime. Following his arrest, there was an interim suspension for a period of approximately |2six and a half months. However, following a hearing committee recommendation, this court ordered the interim suspension dissolved.

Based on the unique facts and circumstances related to Respondent’s medical condition, I believe a more limited period of suspension, coupled with probation and conditions, would adequately serve the disciplinary system. See In re: Bertucci, 08-1349 (La.9/26/08), 990 So.2d 1275.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . Respondent is also admitted to the practice of law in Mississippi and was previously admitted in Tennessee, where his license is currently inactive.

      . One committee member dissented, stating that the interim suspension should be maintained.

      . Attorney Steven Everett is monitoring respondent's performance under the contract on a monthly basis. In a June 5, 2008 letter, Mr. Everett indicated that respondent’s compliance with the contract has been “exemplary.” He also indicated that respondent has been quite active with the Narcotics Anonymous Group with which he is affiliated.

      .Among other reasons for granting respondent's motion to quash and motion to suppress, the trial judge stated that “the so-called sweep was a warrantless search and ... all of the evidence was not stated, especially the evidence of the sweep, was not stated in the affidavit on which the search warrant was based."

      . In State v. Brand, 520 So.2d 114 (La.1988), this court held that it is the defendant's burden to prove the affirmative defense of entrapment, i.e., that a law enforcement official or an undercover agent acting in cooperation with such an official, for tire purpose of obtaining evidence of a crime, originates the idea of the crime and then induces another person to engage in conduct constituting the crime, when the other person is not otherwise disposed to do so. The court emphasized that “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.... Thus, the focus in determining an entrapment defense is on the conduct and predisposition of the defendant, as well as the conduct of the government agent.” Id. at 117.

      . Respondent testified that when Mr. Roberts called him and asked him for the marijuana, Mr. Roberts told him he wanted to "get a girl high and have sex.” Respondent admitted that he knew it was wrong to give the marijuana to Mr. Roberts, but did so because Mr. Roberts was his best friend.

      . The committee noted that no evidence of marijuana's medicinal benefit was offered, nor was there evidence that respondent's doctors had prescribed marijuana use as treatment for glaucoma.

      . Although respondent testified at the hearing that he had prescriptions for the Xanax and the muscle relaxant, the board noted that he did not offer the prescriptions into evidence.

      . While respondent argues that he was entrapped into giving the marijuana to Mr. Roberts, we agree with the hearing committee that the defense of entrapment has a limited place in disciplinary proceedings, and that in any event, respondent failed to prove the elements of entrapment in this case.

      . See, e.g., The Florida Bar v. Lancaster, 448 So.2d 1019 (Fla.1984); People v. Harfmann, 638 P.2d 745 (Colo.1981); and Emslie v. State Bar, 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991 (1974), all holding that the exclusionary rule does not apply to attorney disciplinary proceedings.

      . The board recommended that following his suspension, respondent be placed on probation to run concurrently with his LAP contract. Because the active portion of respondent’s suspension exceeds one year and will therefore require a formal application for reinstatement under Supreme Court Rule XIX, § 24, we decline to impose any conditions at this time. If and when respondent applies for reinstatement, the board may consider recommending appropriate conditions for reinstatement, including conditions for probation and continued compliance with a LAP contract.

      . During the interim suspension hearing, expert medical testimony acknowledged there were therapeutic uses of cannabis for the treatment of glaucoma because it lowers in-traocular pressure. Respondent testified without contradiction that a lower intraocular pressure corresponded with his marijuana use.


source: Caselaw Access Project

author: WEIMER, J.

license: Public Domain

text:
    Michael X. ST. MARTIN, Louis Roussel, III, William A. Neison, et al. v. STATE of Louisiana and Cynthia Bridges, in her Capacity as Secretary of the Louisiana Department of Revenue.
    No. 2009-C-0935.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      Ajubita, Leftwieh & Salzer, LLC, Adolph Albert Ajubita; Deborah Maria Sulzer, New Orleans; St. Martin & Bou-arque, Michael X. St. Martin, Joseph G. Jevic, III, Houma, for applicant.
    James D. Caldwell, Attorney General; Louisiana Department of Revenue, Elroy Anthony James, Monica Doss Washington, Shone Therese Pierre, Nykeba R. Walker, David Michael Hansen, Florence Bonac-corso-Saenz, Kimberly K. Smith, Joe Floyd Stevenson, for respondent.
   WEIMER, J.

hWe granted the plaintiffs’ application for writ of certiorari to resolve whether the Louisiana Board of Tax Appeals (Board) has jurisdiction to certify and hear a class action seeking the payment of statutorily mandated interest due as a result of tax refunds or credits. We find the Board has such jurisdiction and remand the matter to the Board for consideration of the petition for certification.

FACTS AND PROCEDURAL HISTORY

The history of the instant litigation is relatively simple, although it encompasses several years. On January 9, 2004, Michael X. St. Martin, Louis Roussel, III, and William A. Neilson filed a “Class Action Petition for Damages” with the Board. The petition, as amended, alleged that the Louisiana Department of Revenue (DOR) had failed to pay and/or underpaid the interest due on petitioners’ tax refunds, as well as on those of other Louisiana taxpayers entitled to refunds. The first | gsupplemental and amending class action petition for damages sought to proceed on behalf of a class of Louisiana taxpayers similarly situated, as follows: “All persons and entities who are or were entitled to refunds and/or credits for overpayment of Louisiana State taxes and were not paid interest as allowed by LA. R.S. 47:1624, including but not limited to, income, excise, franchise, sales and use and inheritance taxes.”

The Board dismissed petitioners’ request for class certification, stating that the Board lacks the “expressed or implied authority ... to certify or hear a class action or class of claims.” Apparently, this ruling by the Board declines any class action in a tax case, regardless of the nature of the taxpayers’ claims.

Petitioners thereafter filed a petition for appeal in the Thirty-Second Judicial District Court for the Parish of Terrebonne. On December 21, 2007, the district court rendered judgment reversing the Board’s dismissal of the petition and holding the Board did have authority to hear class actions.

The DOR took a suspensive appeal to the Court of Appeal, First Circuit. A three-judge panel rendered a split decision , the result of which is a ruling that this matter cannot proceed as a class action before the Board. Each judge assigned reasons. Although the author of the opinion, Judge Welch, agreed with the district |;¡eourt that the Board had jurisdiction to hear class actions, he concluded the Board’s dismissal of this class action petition should be affirmed on the basis that the petitioners do not have a cause of action before the Board to seek recovery of interest on tax overpayments on behalf of other taxpayers. Judge Welch explained that because the Board has not formally promulgated or adopted rules authorizing taxpayers to assert claims on behalf of other taxpayers, petitioners do not have a cause of action to represent other taxpayers in proceedings before the Board.

The other two judges concurred in the result and assigned reasons. Judge Parro was of the opinion that because the use of a class action procedure is not specifically granted to the Board, the Board has no authority to use this procedure and may not expand its authority by choosing to use this procedure. Such expansion, according to Judge Parro, would run afoul of the separation of powers doctrine provided in La. Const. Art. II, § 2. Judge Parro further observed that there is nothing in the statutory provisions relating to the Board that authorizes a taxpayer to assert grievances on behalf of himself and others.

Judge McClendon also concurred. Both Judge McClendon and Judge Parro interpreted the language of LSA-R.S. 47:1401 as clearly limiting the authority of the Board to decide questions of law and fact arising from disputes between the collector of revenue and “a taxpayer,” not a class of taxpayers.

Petitioners applied to this court for a writ, which we granted. St. Martin v. State, 09-0935 (La.6/26/09), 11 So.3d 495.

DISCUSSION

Article VII, § 1 of the Louisiana Constitution vests the power of taxation in the legislature, and Article VII, § 3(A) mandates the legislature to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” |4To fulfill its latter obligation, the legislature has provided three remedies: (1) the Claims Against the State procedure, LSA-R.S. 47:1481, et seq.; (2) the Payment Under Protest procedure, LSA-R.S. 47:1576, et seq.; and (3) the Overpayment Refund procedure, LSA-R.S. 47:1621, et seq. Further, the legislature created the Board to “act as an appeal board to hear and decide ... disputes ... between a taxpayer and the collector of revenue.” LSA-R.S. 47:1401.

In the instant matter, plaintiffs’ claims are brought pursuant to the Overpayment Refund procedure. The term “overpayment” is defined as a “payment of tax ... when none was due, [or] the excess of the amount of tax ... paid over the amount due.” LSA-R.S. 47:1621(A). The putative class asserted by petitioners consist of taxpayers who have received refunds of over-payments within the contemplation of LSA-R.S. 47:1621, et seq, but allegedly have been denied or underpaid the interest thereon pursuant to LSA-R.S. 47:1624 (quoted at footnote 1). According to LSA-R.S. 47:1621, et seq., including in particular LSA-R.S. 47:1625, the Board is authorized to “render judgment” ordering the refund of a tax overpayment, which judgment in turn is subject to judicial review pursuant to LSA-R.S. 47:1434-36. Thus, LSA-R.S. 47:1621, et seq., afford a procedure specifically directed toward the refund of tax overpayments paid voluntarily and without protest.

The parties herein do not dispute that the three plaintiffs may pursue their individual claims pursuant to the tax laws, which laws are sui generis and constitute a system to which the general provisions of the Louisiana Civil Code have little, if any, application. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708-9 (La.1993). Instead, the dispute here is whether petitioners may proceed by class action.

In addition to the constitutional provisions and statutes which vest authority in the Board, and which do not expressly exclude jurisdiction over class actions, the Board’s own rules and its previous actions in adjudicating class actions for refunds of overpayments militate in favor of jurisdiction. Specifically, Rule 10, as adopted by the Board, provides in pertinent part:

The rules of evidence and trial procedure generally followed by the district courts of the state will be followed in hearings before the Board.

Obviously, the trial procedure generally followed by district courts in civil matters is contained primarily in the Louisiana Code of Civil Procedure, the provisions of which include the procedure for class actions. See LSA-C.C.P. art. 591, et seq. Thus, it is reasonable to conclude that the Board has allowed for class actions by its own Rule 10.

Further support for the use of the class action procedure can be found in the Board’s own actions. In 1989, the Board certified a class action in Ponthier v. State of Louisiana, BTA Docket No. 3396, which was a claim for refund of income taxes wrongfully paid by recipients of federal civil service or military retirement annuities. Although the DOR attempted at oral argument to distinguish that case from the present one, that attempt was a distinction without a difference. In Ponthier, the | (¡Board found that “[e]ach member stands in an identical position notwithstanding that the amount of each claim or the taxable years involved may vary among class members.” As noted by Judge Welch, “[t]he fact that the Board has utilized the class action procedure in the past to resolve a taxpayer refund dispute is a strong indication that the Board’s rules and its adjudicative capabilities are in fact consistent with the class action procedural device.” St. Martin, 08-1403 at 3, 5 So.3d 1060 (Table). Thus, the Board, as a governmental agency, has exhibited the authority to handle a class action under the tax laws and the Board’s own rules.

We note that we have recently reiterated that the Board acts as a trial court in finding facts and applying the law. See International Paper, Inc. v. Bridges, 07-1151, pp. 9-10 (La.1/16/08), 972 So.2d 1121, 1127-1128 (quoting St. Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295, 1298 (La.1986)). We further noted that if the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed absent a clearly erroneous finding of fact. St. Pierre’s Fabrication and Welding, Inc., 495 So.2d at 1298.

A corollary to this concept is that the district courts’ jurisdiction in judicial review of decisions or judgments of the Board is appellate in nature. See LSA-R.S. 47:1435. In Clark v. State, 02-1936, p. 8 (LaApp. 1 Cir. 1/28/04), 873 So.2d 32, writ denied, 04-0452 (La.4/23/04), 870 So.2d 300, the appellate court noted that LSA-R.S. 47:1407, et seq., delineating the jurisdiction of the Board, its factfinding authority, and its administrative procedures, clearly fall within the power of taxation vested in the legislature by La. Const, art. VII, § 1 and the mandate to the legislature in La. Const, art. VII, § 3 to provide an adequate remedy for the prompt refund of an illegal tax payment. Thus, for the purpose of judicial review of administrative actions, district courts are courts of limited jurisdiction and have only appellate jurisdiction to review administrative decisions as provided by the legislature or constitution. Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987). Additionally, the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies. Id. In Clark, the first circuit specifically held that the trial court lacked original jurisdiction to consider the merits of the taxpayers’ claims in a class action proceeding, as distinguished from consideration of the legality or constitutionality of the procedural mechanisms for assertion of those claims; that ruling specifically applied to claims for overpayment of taxes brought pursuant to LSA-R.S. 47:1621, et seq. In the instant case, Judge Welch’s conclusion that the Board’s jurisdiction extends to class actions is consistent with the analysis in Clark that illustrates the Board sits as a trial court and the district court as an appeals court when reviewing the Board’s decisions.

In the instant case we reject DOR’s argument that the findings of jurisdiction were erroneous, we vacate the judgment of the appellate court reinstating the decision of the Board, and we reinstate the district court’s holding.

Although only one of the three appellate court judges based his dismissal of the petition for class action certification on a failure to state a cause of action, we feel | sconstrained to address that portion of the opinion. As we have previously stated, Judge Welch held that because the Board has not formally promulgated or adopted rules authorizing taxpayers to assert claims on behalf of other taxpayers, petitioners do not have a cause of action before the Board to seek interest on tax refunds due to or paid by other taxpayers. We disagree. As we have previously pointed out, there is no prohibition of the use of a class action in a tax dispute before the Board in the constitution, the legislation, or the Board’s Rule 10.

A class action is simply a procedural device. Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360, p. 7 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 723. As nothing more than a procedural mechanism, a class action affords a method of efficiently and economically managing a large number of claims in which common issues predominate over individual claims.

CONCLUSION

In sum, jurisdiction to resolve tax related disputes is constitutionally and statutorily granted to the Board which is authorized to hear and decide disputes and render judgments. A class action is a procedural device which can be used to resolve certain disputes which meet the statutory prerequisites. There is no statutory prohibition against the use of the class action procedure by the Board. A rule of the Board contemplates the use of the procedures of the district courts which include class actions. The Board has previously used the class action procedure to resolve a matter.

| ^Consequently, we hold that the Board has the authority to proceed with a class certification hearing and, if appropriate, with a class action in this particular case.

Thus, we vacate the appellate court judgment that reinstated the Board’s dismissal of plaintiffs’ petition for class certification; we reinstate the district court ruling that found the Board had jurisdiction over a class action proceeding; and we remand this matter to the Board for a determination of the class certification issue pursuant to the provisions of LSA-C.C.P. art. 591, et seq.

JUDGMENT VACATED; DISTRICT COURT JUDGMENT REINSTATED; CASE REMANDED TO THE BOARD OF TAX APPEALS.

      . Judge Benjamin Jones, of the Fourth Judicial District, assigned as Justice Pro Tempore, participating in the decision.

      . LSA-R.S.47:1624, entitled "Interest on refunds or credits” provides, in pertinent part:
      A. Notwithstanding any other provision of law to the contrary, on all refunds or credits the secretary shall compute and allow as part of the refund or credit, interest at the annual rate established in R.S. 13:4202 from the date the return was due, the date the first return for that tax period was filed, or the date the tax was paid, whichever is later. An overpayment shall bear no interest if it is credited to the taxpayer’s account. No interest on refunds or credits shall be allowed if, the secretary proves by clear and convincing evidence that a person has deliberately overpaid a tax in order to derive the benefit of the interest allowed by this Section. Payments of interest authorized by this Section shall be made from funds derived from current collections of the tax to be refunded or credited.

      . St. Martin v. State, 08-1403 (La.App. 1 Cir. 3/27/09), 5 So.3d 1060 (Table).

      . In one argument to this court, DOR asserts that because applicable statutory provisions, such as LSA-R.S. 47:1401, use the singular "a taxpayer,” the legislation must be read as excluding a class of "taxpayers.” This argument is untenable. LSA-R.S. 1:7 provides, relative to interpretation of the revised statutes, that ”[w]ords used in the singular number include the plural and the plural includes the singular.”

      . Attempts to assert refund claims against a taxing authority pursuant to LSA-C.C. arts. 2299, et seq., which address payment of a thing not due, have consistently been rejected by our courts. Atlantic Pacific Marine Corporation v. State, 94-0243, pp. 3-4 (La.App. 1 Cir. 12/22/94), 648 So.2d 1069, 1070-71; Convent Marine Companies, Inc. v. State, 603 So.2d 790, 794-95 (La.App. 1 Cir.1992). The Board's jurisdiction is not circumscribed by La. Const, art. V, § 16(A), which provides the district courts with original jurisdiction in all civil and criminal matters, because the district court's jurisdiction vis-a-vis the Board is properly governed by La. Const, art. V, § 16(B), stating that a "district court shall have appellate jurisdiction as provided by law.” Clark v. State, 02-1936, p. 7 (La.App. 1 Cir. 1/28/04), 873 So.2d 32, 36, writ denied, 04-0452 (La.4/23/04), 870 So.2d 300.

      . LSA-R.S. 47:1435 is entitled "Jurisdiction of district courts to review decisions of the board" and provides:
      The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
      Upon such review, such courts shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.

      . Additionally, we note that Title 47 of the Revised Statutes, entitled "REVENUE AND TAXATION,” provides a "Taxpayer's Bill of Rights,” LSA-R.S. 47:15. Paragraph 13 of that statute grants taxpayers the right to represent themselves or to authorize another person to represent them “when dealing with the Department of Revenue.” Although distinguishable from the Code of Civil Procedure's provisions for class actions, this provision is similar from the standpoint that it allows for representation. In a class action, the class representative represents the members of the class.

      . We do not address whether this matter should be certified because no hearing was held and that issue is not before us.


author: PER CURIAM.

text:
    Theodore E. FILIPSKI, III v. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, et al.
    No. 2009-CC-1013.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      Richie, Richie & Oberle, LLP, Byron Andrew Richie, Paul Douglas Oberle, Jr., Charles Vernon Richie, Shreveport, for applicant.
    Matthew D. Henrich, APLC, Matthew Dwight Henrich, for respondent.
   PER CURIAM.

| jWe granted certiorari in this matter to consider whether the statutory provision allowing for exclusion of a driver from liability coverage under an insurance policy also bars that driver from recovering under the policy’s uninsured motorist coverage. For the reasons that follow, we conclude that a driver who is excluded from an insurance policy’s liability coverage is also precluded from recovering under the policy’s uninsured motorist coverage.

FACTS AND PROCEDURAL HISTORY

This case arises from an automobile accident in which a 1997 Chevrolet pick-up truck driven by plaintiff, Theodore Filip-ski, III, was struck by an uninsured drunk driver. As a result of the accident, plaintiff filed the instant suit against his uninsured motorist (“UM”) earner, Imperial Fire & Casualty Insurance Company (“Imperial”).

In response to plaintiffs action, Imperial filed a motion for summary judgment, arguing that plaintiff was an “excluded driver” under the policy. According to |2Imperial, the parties, in accordance with La. R.S. 32:900(L), signed an “Exclusion of Named Driver Endorsement” agreeing that “no coverage shall be afforded while the insured vehicle is being driven by” plaintiff. Imperial further states that plaintiff agreed to enter the agreement in exchange for a reduced premium due to his poor driving record.

Plaintiff opposed Imperial’s motion for summary judgment. He argued the endorsement only applied to liability coverage, not UM coverage. In addition, plaintiff denies that Imperial reduced his premium in exchange for the waiver.

| ¡¡After a hearing, the district court denied Imperial’s motion “as it pertains to the uninsured/underinsured motorist claim which may be asserted by Theodore Filip-ski.”

Imperial sought supervisory review of the district court’s judgment denying summary judgment as to UM coverage. The court of appeal denied the writ. Imperial then applied to this court. We unanimously granted the writ, and remanded it to the court of appeal for briefing, argument and opinion. Filipski v. Imperial Fire & Cas. Ins. Co., 08-1494 (La.10/10/08), 993 So.2d 1271.

On remand, the court of appeal again denied the writ in a split decision. Filipski v. Imperial Fire & Cas. Ins. Co., 08-431 (La.App. 3rd Cir. 4/8/09), 9 So.3d 1065. The majority explained that Louisiana has historically maintained a strong public policy in favor of UM coverage. It found that although plaintiff rejected liability coverage, there was no evidence in the record demonstrating that he specifically rejected UM coverage. Accordingly, the court determined that because Imperial did not obtain a statutorily-mandated rejection of UM coverage from plaintiff, it was required to provide such coverage.

One judge dissented. Relying on jurisprudence from this court, the dissenting judge found that any determination of whether plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage. Because plaintiff was not covered under the liability portion of the subject policy, the dissenting judge concluded plaintiff was not entitled to UM coverage.

Upon Imperial’s application, we granted certiorari. Filipski v. Imperial Fire & Cas. Ins. Co., 09-1013 (La.6/26/09), 11 So.3d 495.

J4DISCUSSION

La. R.S. 32:900(L) is an exception to the general rule of omnibus coverage as provided in La. R.S. 32:861 and La. R.S. 32:900. The purpose of this provision is to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by the excluded driver. Joseph v. Dickerson, 99-1046 at p. 9 (La.1/19/00), 754 So.2d 912, 917.

Plaintiff does not dispute Imperial’s contention that he was excluded from coverage for liability purposes. Nonetheless, plaintiff urges us to find that UM coverage should attach unless specifically rejected in the statutorily-mandated form.

We disagree. In Magnon v. Collins, 98-2822 at pp. 5-6 (La.7/7/99), 739 So.2d 191, 195-196, we explained that a person must be an “insured” for liability purposes in order to be entitled to UM coverage:

Under Louisiana’s UM statute, La. R.S. § 22:1406, automobile liability insurance delivered or issued for delivery in Louisiana and arising out of ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways must provide UM motorist coverage equal to the liability provided for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. The requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly address the subject matter, as UM coverage will be read into the policy unless validly rejected. Although Louisiana’s public policy strongly favors UM coverage and a liberal construction of the UM statute, it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy. In other words, a plaintiff must be an “insured” under auto liability coverage to be entitled to UM coverage, [citations omitted; emphasis added].

Similarly, in Howell v. Balboa Ins. Co., 564 So.2d 298, 301-302 (La.1990), we reasoned that because UM insurance follows the person rather than the vehicle, |sthe court must determine whether a plaintiff is an insured for liability purposes in order to determine whether he is entitled to UM coverage:

We expressly hold that UM coverage attaches to the person of the insured, not the vehicle, and that any provision of UM coverage purporting to limit insured status to instances involving a relationship to an insured vehicle contravenes LSA-R.S. 22:1406(D). In other words, any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist, [emphasis added].

This jurisprudence leads to the inescapable conclusion that a person who is not insured for liability purposes cannot be considered an insured for UM purposes. In the instant case, it is undisputed that plaintiff is not an insured for purposes of liability coverage as a result of the named driver exclusion; therefore, he cannot be an insured for UM purposes. Any other interpretation would fail to recognize the validity of the exclusion provided for in La. R.S. 32:900(L), thereby imposing on the insurer a coverage obligation that is not commensurate with the premium paid. See Williams v. Watson, 01-0495 (La.10/16/01), 798 So.2d 55.

Accordingly, the district court erred in failing to grant Imperial’s motion with regard to UM coverage.

DECREE

For the reasons assigned, the judgment of the district court, insofar as it denied the motion for summary judgment filed by Imperial Fire & Casualty Insurance Company on the issue of uninsured motorist coverage, is reversed. The motion for summary judgment is hereby granted in its entirety, and plaintiffs suit against Imperial Fire & Casualty Insurance Company is dismissed with prejudice. All costs in this court are assessed against plaintiff.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . La. R.S. 32:900(L) provides:
      L. (1) Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term "named insured” means the applicant for the policy of insurance issued by the insurer.
      (2) The form signed by the insured or his legal representative which excludes a named person from coverage shall remain valid for the life of the policy and shall not require the completion of a new driver exclusion form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. Any changes to an existing policy, including but not limited to the addition of vehicles or insured drivers to said policy, regardless of whether these changes create new coverage, do not create a new policy and do not require the completion of a new agreement excluding a named person from coverage. For the purpose of this Subsection, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

      . The "Exclusion of Named Driver Endorsement” provides, in pertinent part:
      It is agreed that as of the effective date, this policy is amended as follows: in consideration of the premium charged, it is hereby agreed and understood that no coverage shall be afforded while the insured vehicle is driven by Theodore Filipski, III (01/30/61).

      . The district court granted the motion insofar as it pertained to the liability portion of plaintiff’s policy. Neither party has sought review of this portion of the district court's judgment.


author: GUIDRY, Justice.

text:
    STATE of Louisiana v. Milton HUNT.
    No. 2009-KK-1589.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, for applicant.
    Orleans Public Defender, W. Keith Hurtt, Jr., for respondent.
   GUIDRY, Justice.

_JjBy bill of information, the defendant, Milton Hunt, is charged with illegal possession of a stolen firearm in violation of Louisiana Revised Statute 14:69.1. The defendant entered a plea of not guilty and, subsequently, moved to suppress both the physical evidence and his custodial statement. After conducting a hearing, the trial court granted the motion upon finding the testimony of the only witness, the arresting officer, was not credible. The State of Louisiana (hereafter, the “State”) sought review in the court of appeal, which found no error in the trial court’s ruling. We granted certiorari in this matter to address whether the trial court erred in suppressing the evidence based solely on its credibility determination.

Upon review, the trial court’s credibility determination was not premised on a global rejection of the arresting officer’s testimony. Rather, the court’s credibility assessment was based on factual findings regarding the seizure of the firearm and circumstances surrounding the custodial statement that are not supported by the record. Moreover, the court’s credibility determination is irrelevant insofar as the record and controlling law establish the State sustained its burden of proving sufficient probable cause to support the admissibility of the physical evidence and | gcustodial statement. Therefore, for the reasons that follow, we vacate the district court’s ruling granting the motion to suppress and remand the case to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The instant criminal proceedings stem from a routine traffic stop conducted by Officer Corey Himel of the New Orleans Police Department (hereafter, “NOPD”). Officer Himel, the only witness at the motion to suppress hearing, testified regarding the facts surrounding the traffic stop that ultimately led to the defendant’s arrest and his alleged custodial statement. Specifically, Officer Himel’s testimony revealed that, at approximately 10:00 p.m. on the night of November 12, 2008, he was operating a marked police unit on West End Boulevard when he observed the windows on the vehicle traveling directly in front of him had “very heavy tint.” He described the tint as so dark that a person “couldn’t even see the driver’s silhouette through the window.” Officer Himel decided to execute a traffic stop based on his belief that the tint was in excess of the legal limitations set forth in Louisiana Revised Statute 32:361.1.

| sAfter signaling for the vehicle to pull over, Officer Himel noticed the defendant, the driver of the vehicle, make some movements toward the front floorboard. He observed this through the rear window. Officer Himel was questioned by the trial court as to how he could see the defendant’s movement through the allegedly excessive tint. He explained that he stopped the defendant’s vehicle due to an illegal tint on the side windows, not the rear window. He stated he first saw the tint on the side windows when the defendant turned the corner onto a side street. Officer Himel further clarified that he observed the defendant’s suspicious movements through the rear window when he was approximately one to two car lengths away and his headlights shining in the defendant’s car as it pulled over. He elaborated that, while the rear window was tinted, it was not as dark as the side windows.

Officer Himel also testified about the warrantless search subject of the motion to suppress. According to his testimony, upon pulling the defendant’s vehicle over, Officer Himel got out of his patrol car, approached the defendant’s driver’s side, and asked the defendant to roll down his window. When the defendant complied, the officer noticed that he was not wearing a seatbelt. The officer asked the defendant to step out of the vehicle. After the defendant exited his vehicle, Officer Himel shined a flashlight on the floorboard of the driver’s seat to see if the defendant “had thrown something down there.” The light revealed the butt of a 40-caliber semiautomatic handgun sticking out from underneath the driver’s seat. Officer Himel retrieved the weapon and discovered by its insignia that it was an NOPD issued service weapon. He confirmed through radio transmission that the weapon was reported stolen by an NOPD employee. Officer Himel informed the defendant that |4he was under arrest for possession of stolen property and handcuffed him. The defendant was advised of his Miranda rights, which the officer attested at the hearing the defendant acknowledged he understood.

In addition to issuing a traffic ticket for the seatbelt violation, Officer Himel also issued the defendant a citation for the illegal tinting. Officer Himel testified the light transmission device he used on the side windows of the defendant’s vehicle registered the driver’s window with a light transmission of only five-percent, indicating the window was virtually opaque. See La. R.S. 32:361.1(C)(1), note 1, supra.

Last, Officer Himel testified regarding the circumstances surrounding the defendant’s custodial statement. Within minutes of arriving at the police station for booking and while writing his report, Officer Himel casually asked the defendant where he had acquired the gun. He testified he did not anticipate a response, and was surprised when the defendant replied that he purchased the gun for $100 from an individual named Tyrone Claiborne and that Claiborne had other weapons available for sale. The officer neither recorded the defendant’s statement, nor obtained the defendant’s signature on a waiver of Miranda rights form.

At the close of the hearing, the trial court granted the motion to suppress the physical evidence and the custodial statement based on the absence of probable cause. |fiThe only reasons cited by the court were those taken from her remarks when she openly addressed Officer Himel regarding his testimony:

Officer Himel, I do not find your testimony credible in this hearing. I do not 1-mow how you can see movement in a car with a tint so dark, you could not see the outline of the person in the car. I’m sure you’re a fine officer. But that is my ruling. The fact that you took someone further to a police station and didn’t get them to write a statement down, you didn’t record them, and you didn’t use the documentation, none of this passes the smell test to this Court.

The trial court granted the State time to seek supervisory relief from its ruling, but denied the State’s request for a stay order pending the resolution of its writ application. Subsequently, the court of appeal issued an order denying the State’s writ application and motion to stay the proceedings. This Court granted certiorari to review the correctness of the trial court’s action relative to the motion to suppress, and granted a stay pending further orders. State v. Hunt, 09-1589 (La.7/14/09), 11 So.3d 501.

LAW AND DISCUSSION

The State urges the trial court erred in suppressing the weapon and the custodial statement based solely on its credibility determination when the record overwhelmingly favors the admission of the evidence. The State argues, irrespective of the trial court’s credibility assessment, Officer Hi-mel’s uncontradicted testimony and the pertinent law indicates his actions relating to the traffic stop, seizure of evidence, and the defendant’s custodial statement were objectively reasonable, citing State v. Kelley, 05-1905, p. 5 (La.7/10/06), 934 So.2d 51, 54 (“[T]he determinative question in the present case is not whether the police were right or wrong in claiming that they had probable cause ..., but whether their conduct up to that point was objectively reasonable under the Fourth Amendment.”). In contrast, the defense asserts, regardless of the reasonableness of Officer Himel’s actions, it was within the ksound discretion of the trial court to find his testimony not credible based on the internal inconsistencies and inaccuracies.

As a general rule, this Court reviews trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. State v. Bourque, 622 So.2d 198, 222 (La. 1993) (A “trial judge’s ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling.”).

In the motion to suppress which is the subject of these proceedings, the defense contests the constitutionality of the warrantless search, seizure of physical evidence, and the custodial statement subject of these proceedings. The Constitutions of the United States and Louisiana protect individuals from unreasonable searches and seizures. U.S. Const. Amend. IV; LSA-Const. Art. 1, § 5. The exclusionary rule bars physical and verbal evidence obtained either during or as a direct result of an unlawful search or seizure. Wong Sun v. United States, 371 U.S. 471, 484, 835 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Lee, 05-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122.

The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a 17motion to suppress evidence. La.Code Crim. Proc. art. 703(D). A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Lee, 05-2098 at 14, 976 So.2d at 122. We now address separately the trial court’s suppression of the physical evidence and custodial statement.

Suppression of the Physical Evidence

Credibility Determination

As an initial matter, the trial court did not reject the totality of Officer Hi-mel’s testimony relative to the traffic stop, warrantless search of the defendant’s vehicle, and seizure of the firearm. Instead, the court’s remarks at the conclusion of the hearing reflect the court’s concern regarding Officer Himel’s credibility stemmed solely from the discrepancy in his direct examination testimony as to how he could observe furtive movements in the vehicle, but could not see the silhouette of the driver. The trial court simply disregarded Officer Himel’s explanation for the discrepancy and determined his testimony as a whole lacked credibility. However, the trial court’s remarks at the conclusion of the hearing reflect the court’s erroneous assumption that all of the windows in the defendant’s vehicle were tinted similarly and that the tint was so dark as to prevent the arresting officer from seeking into the vehicle. The hearing transcript indicates the officer clarified on cross examination that he made the observation through the rear window of the vehicle, which he characterized as having a lighter tint than the front and side windows. This lighter tint, when subjected to the headlights of the officer’s vehicle as it followed behind the defendant, allowed the officer to see the defendant’s vehicle at the time of the stop. In light of the manner in which questions were posed to him during his examination, | sOfficer Himel provided an internally consistent and objectively reasonable accounting of the circumstances regarding the traffic stop. His statements were not challenged by any other testimony or documentary evidence. Therefore, it appears that the trial court’s credibility determination was based on a factual conclusion that is not supported by the record.

Moreover, the trial court’s credibility determination was based on a factual determination that ultimately proves to be irrelevant to the fundamental issue presented in this case: whether the officer lawfully arrested the defendant and lawfully seized the stolen weapon from the vehicle. The trial court rejected as incredible the officer’s testimony that he could observe the defendant’s movements through the rear window of the car. However, the stop and ensuing arrest were permissible even absent an observation of such allegedly furtive movements.

Traffic Stop and Seizure

It is undisputed than an individual’s constitutional protections from unreasonable searches and seizures are triggered during an investigative traffic stop. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). The law provides the stopping of a vehicle and its occupants constitute a seizure under the law. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). In determining the legality of a traffic stop, a reviewing court must decide “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity occurred or is about to occur, before stopping the vehicle. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s subjective motivation. Whren v. United States, 517 U.S. 806, 810, 813, 116 S.Ct. 1769, 1772, 1774, 135 L.Ed.2d 89 (1996); State v. Waters, 00-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056; State v. Landry, 98-0188, p. 2 (La.01/20/99), 729 So.2d 1019, 1020.

After reviewing the record in its entirety, we conclude Officer Himel did not violate the defendant’s constitutional rights by virtue of the traffic stop. At the inception of the stop, Officer Himel had a reasonable suspicion that the tint on the windows on the defendant’s vehicle was in violation of the statutory limitations set forth in Louisiana Revised Statute 32:361.1(0(1). The officer testified that, while he believed the tint on each "window violated the law, he only measured the light transmission of the front side windows, the darkest windows, and determined they did not comply with the statutory guidelines. His testimony relative to the violation is corroborated by documentary evidence, namely, the traffic citation issued to the defendant for the illegal tint, as well as by the fact that the defendant does not contest the tinting did not comply with the legal limitations.

After validly stopping the defendant’s vehicle, Officer Himel discovered the defendant was not wearing his seat-belt. This violation of Louisiana Revised Statute 32:295.1 is also uncontested by the defendant and substantiated by the issuance of a traffic citation. While the violation was not immediately apparent at the time the defendant’s car was pulled over, the law is clear that a driver’s failure to wear a seatbelt constitutes reasonable cause for an investigatory traffic stop. Id.

As to the propriety of the search, the defendant’s removal from the vehicle, which ultimately led to the discovery of the weapon, was authorized by virtue of the | mtraffic stop. Both the United States Supreme Court and this Court have recognized that, for the safety of the officer making a traffic stop, the occupants may be ordered out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997); State v. Benoit, 01-2712, p. 6, (La.5/14/02), 817 So.2d 11, 15. The defendant’s exit from his car was further justified given the time of day, coupled with the officer’s lack of a full range of visibility into the vehicle.

Moreover, Officer Himel’s use of a flashlight to conduct the warrantless search, which allowed him to observe the butt of the gun sticking out from underneath the driver’s seat, did not violate the defendant’s protections afforded under the Fourth Amendment. Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (“[T]he use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.”). Whatever is discovered by shining a flashlight into a vehicle is considered to be in “plain view,” if there is prior justification for the intrusion and it is immediately apparent that the discovery is contraband. State v. Edsall, 385 So.2d 207, 210 (La.1980). Officer Himel testified he shined his flashlight toward the floorboard because it was the area the defendant had made the movements which concerned him. However, the illumination would have been proper in the absence of the defendant’s actions by virtue of the validity of the traffic stop and the defendant’s removal from his vehicle.

Therefore, once the defendant’s vehicle was lawfully stopped for the traffic violation and the defendant removed from the vehicle, the weapon was in plain view upon illumination. After the officer observed the NOPD markings on the gun, probable cause existed to arrest the defendant for the possession of the stolen firearm pursuant to Louisiana Revised Statute 14:69.1. Accordingly, Officer Himel’s actions were objectively reasonable under the law. See Kelley, 05-1905 at 5, 934 So.2d at 54. This finding, coupled with the fact the trial court’s credibility determination has no bearing on the validity of the admissibility of the evidence, we conclude the trial court erred in suppressing the weapon found in the defendant’s vehicle prior to his arrest.

Suppression of the Custodial Statement

It is well-settled the ruling in Miranda v. Arizona, supra, “protects an individual’s Fifth Amendment privilege during incommunicado interrogation in a police-controlled atmosphere.” State v. Leger, 05-0011, p. 13 (La.7/10/06), 936 So.2d 108, 124, citing State v. Taylor, 01-1638, p. 6 (La.1/14/03), 838 So.2d 729, 739. In Miranda, the Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id., 384 U.S. at 444, 86 S.Ct. at 1602. Thus, before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. La.Code Crim. Proc. art. 703(D); La. R.S. 15:451; Lee, 05-2098 at 15, 976 So.2d at 122. The admissibility of a confession is a question for the trial court. Id. As with the testimony relative to the physical evidence, the trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant’s confession are accorded great weight and will not be disturbed unless they are not supported by the evidence. State v. Benoit, 440 So.2d 129, 131 (La.1983). Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and 112circumstances of each situation. Id. We now apply these legal principles to the evidence.

As stated, the State relies exclusively on the hearing testimony of Officer Himel for the admissibility of the defendant’s custodial statement. His testimony alleges he legally arrested the defendant for two traffic violations and for possession of a stolen weapon, and then lawfully obtained the defendant’s custodial statement after he advised the defendant of his Miranda rights on the scene. The defense did not present any witness testimony or documentary evidence in contravention of the officer’s statements. Specifically, the defendant does not dispute that he was read his Miranda rights and understood them. Nor does he contest that he knowingly and voluntarily waived his right to not speak.

Nonetheless, the trial court dismissed as incredulous Officer Himel’s testimony relative to the incriminating statement. Again, the court did not articulate any specific factual findings connecting its perception of Officer Himel’s lack of credibility to its legal conclusion that the State failed to carry its burden of proving the defendant’s statement was voluntarily and freely given in the absence of any intimidation or inducement. Specifically, the trial court did not reject the totality of the officer’s testimony relative to the custodial statement. Rather, its only reason cited in support of the suppression was the officer’s failure to have the defendant execute a waiver of Miranda rights form and/or failure to record the statement. Undeniably, an executed waiver of rights form and a recorded statement would be compelling evidence corroborating the existence of an incriminatory statement. However, as correctly noted by both parties, the execution of a waiver form or failure to record a custodial statement is not a requisite under the law for the admissibility of a confession or incriminating statement. State v. Navarre, 302 So.2d 273, 275 (La.1974) (“The lack of a signed, written waiver of rights form is not determinative of the issue of the voluntariness of a confession.”).

The testimony of an interviewing police officer alone may be sufficient to prove that inculpatory statement was given freely and voluntarily. La.Code Crim. Proc. art. 703(D); La. R.S. 15:451. Based on our review, Officer Himel’s testimony supports the validity of the arrest and the legality of the custodial statement. There is no evidence to contravene the State’s assertion that the defendant’s custodial statement was a product of his knowing and voluntary waiver of his constitutional rights. State v. Anderson, 06-2987, p. 24-25 (La.9/9/08) 996 So.2d 993, 995. Again, while we afford deference to the trial court’s determination regarding the general veracity of Officer Himel’s testimony, the court’s articulated basis for rejecting the testimony does not constitute in and of itself a sufficient legal ground to maintain the suppression. The suppression of the incriminating statement is unsupported by the record and controlling law. See, State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 281 (“[A]s we have often stated in the past, because the evaluation of witness credibility often plays such a large part in the context of a motion to suppress a confession, reviewing courts should defer to the finding of the trial judge unless his finding is not adequately supported by reliable evidence.”).

Accordingly, we find the trial court erred in granting the defendant’s motion to suppress the custodial statement.

CONCLUSION

This Court is ever mindful of the vast discretion to be afforded to a trial court’s credibility determination. In the instant matter, the trial court’s credibility determination was not premised on a total rejection of Officer Himel’s testimony. Instead, the court’s credibility assessment in this matter was based on factual findings | ^regarding the seizure of the firearm and circumstances surrounding the custodial statement that are unsupported by the record. Significantly, the court’s credibility determination is also irrelevant to the fundamental issue of the admissibility of the weapon and custodial statement under the facts presented. The evidence establishes that Officer Himel conducted a valid investigatory stop and search of the defendant’s vehicle, and that the seizure of the weapon and ensuing arrest were legal. The record has no indication the circumstances surrounding the defendant’s incriminating statement violated his constitutional rights. Thus, we conclude the trial court erred in granting the defendant’s motion to suppress the physical evidence and custodial statement.

DECREE

For the reasons stated herein, the judgment of the district court granting the defendant’s motion to suppress is vacated and the case is remanded to the district court for further proceedings.

DISTRICT COURT JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT COURT.

JOHNSON, J., dissents.

VICTORY, J., concurs.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . Louisiana Revised Statute 32:361.1, entitled "View outward or inward through windshield or windows; obscuring prohibited," provides in pertinent part:
      A. As used in this Section and regulations applicable thereto, the following terms shall have the following meanings, unless the context of use clearly indicates otherwise:
      (1) "Sun screening device” means a film material or device that is designed to be used in conjunction with motor vehicle safety glazing materials for reducing the effects of the sun.
      (2) "Light transmission” means the ratio of the amount of total light to pass through the product or material, including any glazing material, to the amount of total light falling on the product or material and the glazing.
      ⅜ *6 ⅜ ⅜ ⅜
      C. The provisions of this Section do not apply to any of the following:
      (1) A sun screening device when used in conjunction with automotive safety glazing materials on the front side window, with a light transmission of at least forty percent, all tolerances included, side window behind the driver with a light transmission of at least twenty-five percent, all tolerances included, and rearmost windows with a light transmission of at least twelve percent, all tolerances included. All sun screening devices shall not have a luminous reflectance of more than twenty percent.

      . In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court set forth the doctrine that the prosecution may not use a statement, whether exculpatory or inculpato-ry, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These safeguards, commonly known as the “Miranda warnings," are as follows: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Id.

      . Officer Himel explained that he did not have a light transmission figure for the rear window because the measuring device in his possession required that the sensors be placed on both the interior and exterior sides of the window, limiting its use to windows that could be rolled down.

      . La. R.S. 32:361.1 recognizes different degrees of tint for the front side windows, the side windows behind the driver, and the rear window.


author:
PER CURIAM.
     JONES, Justice,

text:
    STATE of Louisiana v. Mason GODFREY.
    No. 2009-K-0630.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      James D. Caldwell, Attorney General, James David Caldwell, Jr., Harrel L. Wilson, Jr., Terri Russo Lacy, Assistant Attorneys General, for applicant.
    Louisiana Appellate Project, Peggy J. Sullivan, for respondent.
   PER CURIAM.

| following an incident in the 14th Judicial District Court involving Assistant District Attorney Paul Reggie, the state charged defendant with the felony offense of public intimidation and retaliation. In pertinent part, the offense requires proof that the accused used violence or threats against any public officer or public employee “with the intent to influence his conduct in relation to his position, employment, or dutjC’ La. R.S. 14:122(A). After trial by jury, defendant was found guilty as charged. The trial court initially sentenced him to three years imprisonment at hard labor. However, after the state instituted habitual offender proceedings, the trial court vacated its original sentence and resentenced defendant as a fourth or subsequent felony offender to 25 years imprisonment at hard labor without benefit of probation or suspension of sentence.

| ¡.Defendant appealed and in a split panel decision, the Third Circuit agreed with him that the evidence at trial did not support his conviction for public intimidation. Specifically, while concluding that the evidence supported a finding that defendant had threatened Reggie, the majority found no evidence “to suggest that the defendant sought to have his case continued, the charges dropped, or sought to influence Mr. Reggie in his position, employment, or duties.” State v. Godfrey, 08-0828, p. 6 (La.App. 3rd Cir.2/18/09), 4 So.3d 265, 269 (citation omitted)(Saunders, J., dissenting). After reviewing defendant’s remaining assignments of error and finding that they lacked merit, the court of appeal vacated his conviction for public intimidation, entered a judgment of guilty for threatening a public official, a six-month misdemeanor in violation of La. R.S. 14:122.2, and remanded for resentencing. The Third Circuit thereby pretermitted defendant’s assignments of error relating to his habitual offender adjudication. State v. Godfrey, 08-1231 (La.App. 3rd Cir.2/18/09), 4 So.3d 272. We granted the state’s application to reverse the decision below and to reinstate defendant’s conviction and habitual offender sentence for public intimidation because the trial transcript reveals that when defendant took the stand to offer the jury an exculpatory account of his encounter with Assistant District Attorney Reggie, he also provided jurors with an articulable and rational basis for convicting him of the charged offense.

The evidence at trial showed that on October 17, 2005, as Reggie worked his way through the morning docket in Division B of the 14th Judicial District Court, he had several encounters with an increasingly agitated defendant, who was scheduled for trial that day on an unrelated charge. Reggie testified that on the first occasion, he informed defendant that ethical constraints prohibited him from discussing his case with him because he knew defendant had an attorney who |sapparently was running late and not present in court at that time. Reggie testified that he was aware that defendant had arrived on time at 9:00 a.m. for court and that he never considered issuing a bench warrant for him while they waited for his errant counsel, who evidently never appeared in court on that day. Shortly after the first encounter, defendant again approached Reggie, who once more instructed him to wait for his attorney to arrive. During this second encounter, Reggie noticed that defendant was becoming agitated, although he turned and walked out of the courtroom into the hallway.

After completing the morning docket, Reggie and his investigator, Cinnamon Salvador, walked out of the courtroom for lunch. Defendant was standing in the hallway against the opposite wall and he approached Reggie for a third time. Reggie recalled that when he again refused to speak with him, defendant became so agitated that Salvador maneuvered a dolly loaded with case files in between the two men to separate them. Deputy Gene Thi-bodeaux of the Calcasieu Parish Sheriffs Office also intervened to keep the men apart as Reggie walked toward the elevator. The deputy advised defendant to leave the building.

Accounts of what happened next varied among the state’s witnesses. Reggie testified that after he reached the elevator and pushed the call button, Deputy Thibodeaux moved to block the advancing defendant, who shouted at the assistant district attorney that he was “making this personal with him.” After the elevator door opened and Reggie stepped inside, he turned and observed defendant reach around the deputy and make a hand gesture as if he were pointing a gun at him. Defendant looked Reggie in the eyes and told him, “I’m going to pop-pop you.”

On the other hand, Ms. Salvador testified that she was the first out of the courtroom into the hallway with the cart load of files and thus found herself Rcaught between Reggie and defendant as he approached staring at the assistant district attorney and demanding, “I want to talk to you. I need to talk to you.” With Reggie again declining, Salvador noticed Deputy Thibodeaux approach to take control of the situation. She extricated herself from between the two men and walked over to the elevator. Salvador pressed the call button and had her back turned when she heard defendant yell at Reggie that he had “something for you.” She stepped into the elevator and observed Deputy Thibodeaux take hold of defendant to escort him downstairs. Reggie then joined her in the elevator. However, concerned that the deputy and defendant were alone in the hallway, she stepped back out and followed them downstairs as the officer walked defendant out of the courthouse. Salvador met Reggie on the first floor and the assistant district attorney used a telephone to call the sheriffs office to report the incident and to make a complaint. As they left the courthouse and headed for the District Attorney’s Office, they saw defendant standing across the street glaring at them. However, he let them pass without further incident.

Deputy Thibodeaux testified that after defendant exchanged words with Reggie over why the assistant district attorney would not speak with him, he reached around the officer with his hand in a gesture imitating a gun and informed Reggie that, “You know me enough to where you know I will pow-pow-pow you.” The deputy then escorted defendant from the building.

Defendant took the stand against his attorney’s advice and informed jurors that he had arrived late at court that morning and had been concerned that a bench warrant had issued for his arrest. He therefore approached Reggie to explain his late arrival and to inquire about any bench warrants. Thus, defendant maintained that he merely sought information about whether his case had been called that | f,morning. According to defendant, he did not threaten the assistant district attorney at any point or make any menacing hand gestures. In fact, his first contact with state officials that morning occurred when he approached Ms. Salvador and began “flirting with her.” Defendant testified that he then had two confrontations with Reggie. The first occurred in the courtroom after it had emptied for the lunch break, when he was restrained not by Ms. Salvador but by a public defender after Reggie responded to his polite inquiries about any bench warrants by screaming at him. The second encounter then took place in the hallway outside, where Reggie again yelled that he would not speak to him, and where Deputy Thibodeaux grabbed him around his neck and led him away. Defendant explained that “I approached Mr. Paul Reggie ... because I was scared of going to jail .... [that] he might have called my name. I wasn’t trying to talk to him about my case.” However, defendant acknowledged that he had four prior felony convictions dating back 40 years and that he had thus spent virtually his entire adult life in prison. He also acknowledged that when they saw each other outside the courthouse as Reggie and Salvador walked back to the District Attorney’s Office, Reggie “got scared, all right, and .... actually he should have been scared, you know. You don’t do people that.”

At one point in his testimony, as the assistant district attorney described the critical encounter in the hallway outside the courtroom over the lunchtime recess, Reggie gave his “impression” that defendant wanted to talk to him about his case. Defense counsel did not object to that testimony but on cross-examination, he challenged Reggie to explain exactly what he thought defendant had wanted to speak to him about. Reggie conceded, “I have no idea.” Reggie also conceded under cross-examination that his ethical duties would not have prevented him from ^answering a defendant’s inquiry about whether his case had been called on the docket, although he also testified that usually the bailiff or his investigator screened those questions and provided the pertinent information. Cinnamon Salvador also acknowledged that she did not know what defendant wanted to talk about with Reggie, and that she heard no request by defendant to reduce the charges or continue his case. Similarly, Deputy Thibodeaux conceded that he, too, had not heard defendant say anything about his case. Nonetheless, in closing arguments, the state described Reggie as “the gatekeeper,” the person in control of the outcome in cases, and “so when Mason Godfrey attempted to talk to him, could not do so, and threatened Paul Reggie, because he would not talk to him, that ends the inquiry there.”

In reviewing the testimony at trial, the Third Circuit thought it clear that for purposes of La. R.S. 14:122, an assistant district attorney is a public official, and that jurors rationally resolved the credibility dispute between the state’s witnesses and defendant, a repeat felony offender, over the question of whether he aggressively pursued Reggie and then, by word and gesture, threatened to shoot him. Thus, the evidence fully established that, at the least, defendant had threatened a public official, a misdemeanor offense defined by La. R.S. 14:122.2 as “engaging in any verbal or written communication which threatens serious bodily injury or death to a public official.”

There remained only the question of whether defendant had committed the more serious felony offense of public intimidation because he had made the threats with the specific intent of influencing Reggie in the performance of his official duties. In that regard, given the testimony of the state’s witnesses that they had no idea what defendant had sought to communicate, the majority on the court of |7appeal panel “rejected] the state’s argument that a rational trier of fact can infer specific intent on the part of the defendant to do more than simply determine whether his name had been called in open court from the defendant’s persistence in attempting to speak to Mr. Reggie — that this persistence was clear evidence that the defendant was attempting to influence Mr. Reggie as an assistant district attorney.” Godfrey, 09-0828, p. 6, 4 So.3d at 269-70. The majority specifically noted “that in making this argument, the state fails to show exactly what conduct on the part of Mr. Reggie the defendant was attempting to influence.” Id. The majority thus found that the state’s case in chief merely asked jurors to speculate that defendant’s persistent and increasingly agitated attempts to speak with Reggie concerned his case and its possible disposition as opposed to some other motive. Cf. State v. Stamps, 06-0971, pp. 8-9 (La.App. 5th Cir.5/15/07), 960 So.2d 237, 241 (“This Court has previously reviewed [the pertinent jurisprudence] and found that the common thread running through them is the consideration of whether the threats are made in anger as revenge or retaliation, or whether they are made in an attempt to influence the conduct of the public officer in relation to his or her duties. Each case turns on the facts presented.”). Dissenting, Judge Saunders observed that “[w]hile the Assistant District Attorney has an ethical duty to refrain from speaking to the Defendant, his decision whether to comply with this duty is a choice he has to make that is related to his position.” Godfrey, 08-0828 at 1, 4 So.3d at 272 (Saunders, J. dissenting).

In vacating the conviction for intimidation of a public official, and entering the verdict on the lesser offense of threatening a public official, the majority applied the general principle on review that while the due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), “does |8not permit a reviewing court to substitute its own appreciation of the evidence for that of the jury .... the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.” State v. Lubrano, 563 So.2d 847, 850 (1990). However, jurors also had the entirety of defendant’s own testimony to consider, and even as counsel sought to underscore the defense of the case that defendant had merely sought information as to whether the court had issued a bench warrant for his arrest, direct examination ended in the following manner:

Q. At any point during your interaction with Mr. Reggie, did you suggest to him that he should reduce your charges, continue your case ... do anything at all to effect the proceedings that you were there for?
A. Mr. Reggie couldn’t — couldn’t reduce my charges at....
Q. Did you suggest ... any of those things to Mr. Reggie? Did you ask him to do any of those things?
A. Absolutely no, emphatically no.... Why would I?
Q. Did you ... threaten him and condition your threats on him taking any action on your case at all?
A. No, sir. There was no action he could ... he could take on my case. All right. There was no action he could ... take on my case. The time limitations were already up for my case at — at the time.
[Prosecutor Wilson] Judge....
Q. [By defense counsel] Okay.
A. I need to talk to him about it.
[Prosecutor] — he’s getting into—
[Defense Counsel] No other questions, Your Honor. Thank you.

While the state placed no particular emphasis on the remarks in arguing its case to the jury, rational jurors could find from defendant’s testimony that when his attorney failed to appear in court on the day of that trial, he persisted in his |9attempts to convey personally to Reggie his belief that his case had prescribed, and that he did so with the specific intent of influencing the assistant district attorney in relation to his official conduct by prompting him to agree that the time limits for prosecuting the offense had run and that the charge should be dismissed. That inference accounted for the testimony of Ms. Salvador that she often answered routine questions asked by defendants in court and thus could have addressed defendant’s concerns that a bench warrant had issued for him “he wasn’t interested in speaking with me. He wanted to speak with Reggie.”

The decision below is therefore reversed, the defendant’s conviction for public intimidation and retaliation, and his habitual offender sentence are reinstated, and this case is remanded to the court of appeal for consideration of his assignments of error relating to his habitual offender adjudication pretermitted on original appeal.

DECISION OF THE COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED TO THE COURT OF APPEAL

JOHNSON and JONES, JJ„ dissent.

JONES, Justice,

dissenting.

hi respectfully dissent.

      . Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision,